Episode 406: Employee Accommodations Cannot Infringe on the Rights of Others

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwards and his guests as they discuss and sometimes even solve some interesting HR problems.

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want.

Paul: Okay, so today’s podcast. I want to just start this by saying to the listeners, if you look at the title and you’ve already decided what this is going to be about, you’re wrong. You’re just wrong. I mean, this is such a controversial subject right now. My goal in having this conversation with you is to just be another touch point that exposes you to this conversation and kind of helps everybody understand how this is kind of unfolding inside of the workplace. Because the story that we’re going to talk about today is something that is unfolding inside of the workplace. We have a court case. Nora, can you explain what is everybody going for in summary judgment? Because we’re going, for everybody who’s listening, we’re gonna talk about this court case and the judge would not grant summary judgment. Nora, how does that –

Amanda: Wait, wait, wait. What’s summary judgment?

Paul: That’s what I’m asking.

[laughing]

Amanda: I was like, “What does that mean?”

Paul: Yeah. Yeah. What does it mean?

Nora: Basically, that’s a request to say, “Look, this shouldn’t even go to trial. This shouldn’t proceed at all because there’s no foundation.”

Amanda: Oh, okay.

Nora: And so it’s kind of like the judge should just dismiss it before it proceeds at all because there’s no basis.

Paul: The other side got it wrong.

Nora: Yeah.

Paul: They’re fishing. They misstated something. We can clearly show they misstated it or whatever.

Nora: Right.

Paul: Most people…everyone tries for summary judgment.

Nora: Right.

Paul: Generally, they don’t want to go forward. It’s not granted very often but there’s usually some kind of a tell inside of the summary judgment statement from the judge saying, “Here’s the reason why I’m not going to give you summary judgment.”

Nora: Right.

Paul: And that tell is something that as you go forward, you’re going to have to focus on. And it can be quite helpful, I think Nora.

Nora: Uh huh. Yeah.

Paul: Right?

Nora: Definitely.

Paul: Okay. So what we’re talking about here is religious accommodation versus gender identity discrimination. So we have two things here that are protected under what statutes, Nora?

Nora: Title seven.

Paul: Title seven.

Nora: Yeah. And they could be protected under your state discrimination –

Paul: Title seven version?

Nora: Yeah.

Paul: Yeah.

Nora: Laws that might apply, you know, to smaller employers, whereas Title seven applies to 15 or more employees.

Paul: Uh huh.

Nora: And essentially, it’s a law that protects employees from discrimination for various reasons, and one of those reasons is gender identity.

Paul: And the other one is religion.

Nora: Yeah. [laughing] And there are many more, but those are the two that are at dispute here.

Paul: Okay, and so the EEOC is the Department of…the Federal Department who generally enforces and may sue over this or bring some kind of action around it.

Amanda: Uh huh.

Paul: And they too interpret laws, and you know, they include things, they may make it more inclusive as the world evolves and it moves forward, they’ll say, “Well, this thing now is something that we consider to be under the definition of Title seven that should be protected.”

Nora: Right.

Paul: Okay.

Nora: And I’m assuming you’re bringing that up because sex discrimination is protected under Title seven.

Paul: Yup.

Nora: Gender was, you know –

Paul: Not specifically named, was it?

Nora: No, but it’s been included under sex discrimination.

Paul: Right.

Nora: And from there, gender identity, as you know. Yeah.

Paul: So gender was there. Yeah. Gender was always there. Gender identity wasn’t always there. So they pulled gender identity in.

Nora: Well, even gender wasn’t there. That’s a recent kind of…I think the EEOC came out with guidance saying that they thought that gender was protected under the sex category and then there’s been some court decisions that have affirmed that gender identity has happened even more recently than that.

Paul: Okay.

Nora: So, yeah.

Paul: Okay. All right. So we have a court case where I believe I’ll just state what I think happened. The employer decided that they wanted to accommodate a request that people be identified a specific way around their pronouns. Right?

Nora: There was a particular employee who requested to use their preferred pronouns.

Paul: Right.

Nora: And there was another employee who refused to do that or said that they refused to do that based off of their religion.

Paul: Based off their religion. So we have two competing things underneath Title seven.

Nora: Uh huh.

Paul: Who do you protect? How do you deal with this?

Nora: I mean, that’s the question being answered.

Paul: Wait. Wait.

Nora: Uh huh?

Paul: I know we can’t decide who you protect. You can’t even answer. I’ve asked Nora a question that she can’t possibly answer.

Nora: You protect both.

Paul: You protect both?

Nora: Yeah.

Paul: That’s…Okay, Nora can answer that.

[laughing]

Amanda: Nora can answer anything.

Paul: Okay, so you protect both. But Nora, how do I protect both if they are in direct conflict? What should I do if both are in direct conflict with one another? Both ideals.

Nora: What you do is follow the law. And so for the employee who wants their coworkers to call them by their preferred pronouns, they have that right.

Paul: Yes.

Nora: And there is no protection under Title seven where your religious right could infringe upon the rights of other employees.

Paul: Right.

Nora: So that is not protected at all.

Paul: Okay.

Nora: So you do have to protect the employee who wants to be called by their preferred pronouns by other employees. So that’s 100% clear.

Paul: And you can’t discriminate, whatever that looks like, against the person based off of their religious beliefs.

Nora: That is true. But of course there’s always…there are limits to every right.

Paul: Right.

Nora: Okay, so the the limit to your religious protection is that it can’t cause an undue burden on the company, on the practice, and actually the threshold for that for religious claims is a little bit lower than, you know, just like disability claims and other such claims where it has to be a significant impact to be an undue burden. For religious claims, it just has to be a de minimis impact.

Paul: And that’s minimal for everybody who’s listening out there.

Nora: Yeah to be an undue –

Paul: Wake up!

Amanda: [laughing]

Nora: And that could be changing.

Paul: We are deep in the HR conversation right now.

Nora: We are. [laughing]

Paul: So I’m just going to just say wake up!

Nora: Right? [laughing]

Paul: We just woke up somebody who’s almost fallen asleep in bed.

Nora: Yeah. This is a little bit technical.

Paul: Oh, it’s important though.

Nora: But I want to say to you that that standard could be changing. There’s a case at the Supreme Court right now that could be changing the standard for –

Paul: For de minimis.

Nora: Yeah, it could be increasing that to significant.

Paul: Okay.

Nora: So anyways, that’s all technical. But the point is, is that there’s a process for this and –

Paul: What’s it called?

Nora: [laughing] It’s called the interactive process!

Paul: Oh! We’re gonna have a little celebration. If you’re watching us on video right now –

Amanda: Is it like on Pee Wee’s Playhouse? Like “You said the word of the day!”

[laughing]

Paul: Oh, my goodness. I think we just had an idea. Please.

Amanda: [laughing] Yeah.

Paul: Okay, take a note, Amanda.

Nora: HR word of the day. [laughing]

Paul: HR word of the day! Oh, my goodness. I wonder if we can get him to come in?

Amanda: Pee-Wee?

Paul: Yes!

Amanda: [laughing]

Nora: That’d be huge.

Paul: That would be huge. You don’t know unless you ask. Okay, so word of the day. Word of the day, words of the day, is “interactive process.” Okay, so what happened? What happened in this particular case, Nora?

Nora: Right. So the reason that the judge is saying no summary judgment there are actually grounds for a lawsuit here is –

Paul: Wait, wait. Sorry, sorry. Just for everybody’s benefit – The person would not use the pronoun and the employer fired the person for not using it.

Nora: Right. Immediately.

Paul: That pretty much nailed him.

Nora: Yeah.

Paul: And got him out of there.

Nora: And the employee specifically asked for a religious accommodation.

Paul: Ahh!

Nora: The employee said, “I won’t do this because of my religion.”

Paul: Okay.

Nora: And asked for a religious accommodation and the employer just fired them.

Paul: And just fired them. So they –

Amanda: Rather than going through the interactive process?

Nora: Right.

Paul: Yeah. Yeah. So the interactive process is very, very important. Why?

Nora: It’s required, so that’s why. [laughing]

Paul: You’re such a lawyer.

[laughing]

Amanda: “You just gotta do it.”

Paul: “Because I said so.”

Nora: But it is the way to protect that employee.

Paul: It is.

Nora: Right? That and so it’s engaging…Essentially what it is, is the conversation with the employee.

Paul: And a record of the conversation.

Nora: Right.

Paul: So that’s to me, that’s why it’s so important because it is a record of the reasons why they are requesting this.

Nora: Uh huh.

Paul: It puts it…It doesn’t leave a lot to be discovered later. If you can get the what’s going on now, documented now and really in their own words, why when you say you want a religious accommodation, what is it exactly that you’re asking for?

Amanda: Uh huh.

Nora: Right. Yeah. What is it exactly that you’re asking for? And also like, how can we…Are there any ways where we can solve this problem, protect both employees where it doesn’t cause more than a de minimis? You know, hardship on the practice, on the company.

Paul: Right.

Nora: And so the court said, “Look, you know, because you didn’t engage in the interactive process, we don’t know how often this even will come up because a lot of times employees call each other by their first names.”

Paul: Right.

Nora: And not their pronouns.

Paul: Right.

Nora: And we don’t know from this employee how if they’re saying, “Look, I’m just going to as much as I can call them by their not preferred pronouns and you know, try -”

Amanda: Go out of my way –

Nora: Right.

Amanda: To use their incorrect pronouns. [laughing]

Nora: And the court said, “Yeah, we don’t know how often this employee intended to use this other employee’s pronouns or not.” And this is because the employer did not engage in the interactive process. So there’s no documentation of what the intent of the employee was and the impact of that.

Paul: Yeah, it would be handy and it didn’t happen. It would be handy to have the employee who got fired say, “It goes against my religion and it’s also stupid. You know, I don’t. I don’t agree with it. I just think it’s dumb.”

Nora: Hmm. Right?

Amanda: That would’ve changed it.

Paul: That’s what I mean. The interactive process can actually bring what’s actually happening out and have it be in their own words.

Nora: Right?

Paul: Likewise, it could have brought that person coming out saying, “Look, it is…I feel like it violates my standards based around my religion and I don’t have a problem with them requesting it. I have a problem with them requesting it of me. And I don’t really refer to them in the third person or in any other way. And we’re always talking to each other. I always use their name. I know I made a mistake or I made a mistake in their eyes. But I’m willing to apologize, but I’m just telling you, I may make this mistake over and over again because I’m not adjusting.”

Nora: Mm hmm.

Paul: That’s a different conversation than, “It’s against my religion, and that’s a stupid request from this person and I’m just not going to do it.”

Nora: Right. And we don’t really know the ins and outs because there was no documented, interactive process. Yeah.

Paul: Yeah.

Nora: So I think if the employer had gone, had actually engaged in the interactive process and had determined that there was no way to reasonably accommodate this employee, that wouldn’t infringe upon the identity rights of the other employee and then fired them?

Paul: Yeah.

Nora: There would be, summary judgment would have been granted.

Paul: It may have well. They’ve had a much better chance at summary judgment.

Nora: Right.

Paul: Okay, so I think…Okay, so everybody who’s listening to the podcast who’s involved in HR, We now have this…You know, just think about it. If it’s your job to deal with this issue in your workplace, you need to be entering into the interactive process. And I think you also…It would do you well to become more and more educated on this subject and even talk to, make sure that you talk to a subject matter expert.

Nora: Yeah.

Paul: You know, it could be an attorney. They’re great at being subject matter experts. They’re not great often at solving problems. [laughing] You know, real life problems where you really don’t want to fire either of these people, love them both. Or you’re talking to a subject matter expert in HR who understands the rules and kind of the court cases and everything that’s going on around this right now.

Amanda: Uh huh.

Nora: Right.

Paul: It’s an ever evolving thing. And what we always, you know, when I’m thinking…I’m on the podcast now, What The Hell Just Happened in HR?! What the hell just happened in HR is we actually have a court case where summary judgment wasn’t granted and now it’s going to be heard around pronouns and religion clashing in the workplace. When I think about CEDR as its own separate entity, that’s kind of like we’re that…That’s the job of CEDR is to be that subject matter expert.

Amanda: Yup.

Paul: And for you to come in and talk to them, us and kind of….

Amanda: Well, “You don’t know what you don’t know.” Isn’t that what we say?

Paul: Yeah. And kind of work through it and this is one of those things where we actually have to say, “Well there’s a court case out there right now. We’re not sure which way this is going.”

Amanda: Yeah.

Nora: Right.

Paul: And you have the Supreme Court case. We’re not sure where that’s going.

Nora: Right.

Paul: Yeah.

Nora: You know, and I think that even after this court case, we may not have a clear answer to this.

Paul: Right.

Nora: And so it’s a situation that has inherent risk no matter how you play it out. And so, you know, our job is to kind of help you do it in the least risky way possible –

Paul: Right.

Nora: To protect you as much as possible. But, you know, unfortunately, it’s just risky, period. Because you have two people’s rights –

Paul: Closely held beliefs.

Nora: Right.

Paul: It’s very important to both of these people.

Nora: Uh huh.

Paul: And it’s just, this is when it just – HR term – sucks to be caught in the middle.

Nora: It does.

Paul: And want to do the right thing for both sides. So, you enter into the interactive process. I’m telling you, entering into the interactive process in so many different ways can unveil solutions that you don’t know are available to you.

Nora: Right.

Paul: Yeah.

Nora: Because you can ask, you can directly ask the employee, “Look, I’ve got your rights here and I’ve got this other employee’s legal rights. What is your solution?”

Paul: Yeah.

Nora: Because if they can’t come up with one?

Paul: Yeah.

Nora: Then…

Amanda: Mm hmm.

Nora: Then there is no solution.

Paul: Right.

Nora: Right? So…

Paul: So basically what we’re saying is that you got to back up. And I’m saying that because we have a big crane outside right now and I think the listeners are hearing that beeping sound.

Amanda: I don’t know.

Paul: That’s why I wanted to work that into the podcast.

[laughing]

Amanda: Yeah?

Paul: So what we’re saying –

Amanda: It’s on purpose! [laughing]

Paul: Through the whole podcast is, it’s on purpose.

Amanda: Yeah.

Paul: You need to sometimes back up.

Amanda: Yeah.

Paul: And enter into the interactive process.

Nora: Yeah, and, you know, it just occurred to me because if this employee, the employee with the religious accommodation request, truly is planning on using the other employees non-preferred pronouns in the workplace, you have to stop that situation.

Paul: Right.

Amanda: Yeah.

Nora: So there may be a scenario where you suspend this employee while you engage in the interactive process because you can’t have them in the workplace if that is actually what they’re going to do.

Paul: Right.

Amanda: Uh huh.

Nora: So having an immediate conversation with them, you know, I think is essential and saying, “Okay, what does this mean to you? How do you see this playing out?” And if they directly tell you, if they tell you, “Look, I don’t plan on actually using their pronouns. I just call them by their name.”

Paul: I’m unbend…

Nora: Right.

Paul: Right.

Nora: Then, okay, you can still engage in the interactive process. You probably don’t need to suspend them but if they’re saying, “Look, I don’t care, I’m just going to call them whatever I want to call them and whenever I want to and -”

Paul: On the other side of the other employee is saying, “My concern is, is when I’m not around and they’re not talking to me, they may refer to me with the improper pronoun when they’re in the break room or someplace else.” Again, you’re beginning to say, well, I’m not sure if that’s really the impact that’s having a direct impact on you.

Nora: On yeah, your rights.

Paul: Yeah.

Nora: Yeah. That’s a really interesting question in and of itself.

Paul: Yeah.

Amanda: It’s a whole different situation.

Paul: We can’t really answer.

Nora: No, I don’t think there is an answer to it. But you do have to immediately address the situation and protect the employee, you know, because if you allow that employee to, to that other employees face, use their incorrect pronouns? You’ve got a much riskier situation.

Paul: Yeah. So it’s “damned if you do and damned if you don’t” here.

Nora: Yeah.

Paul: So interactive process, get some help.

Nora: Yes.

Paul: Okay, so what the hell just happened in HR is you’ve got an untenable situation. You’re caught in the middle. Both people are protected. Not a whole lot. It’s not easy. Back up. Do the interactive process. Get some help.

Amanda: Yeah. Exactly.

Nora: Yeah. HR, it’s not easy. [laughing]

Paul: No. It’s just when you think you got it.

Nora: Yeah.

Amanda: Yeah. Something changes.

Paul: Nora – Thanks. Amanda – You were pretty quiet on this one.

Amanda: Yeah, I was just more listening because, like, I just learned a lot [laughing] so there’s just kind of, like, sitting and absorbing this conversation.

Nora: Well, that’s good, because that means we were speaking in a way that everybody will be able to understand.

Amanda: Oh, I would’ve interrupted you. So if I was like, “What the heck did you just say?”

Nora: [laughing]

Amanda: I would’ve said something, yes. Yes, you guys were good.

Paul: Luke, thanks for producing again, man. I really appreciate you. And for all the listeners, if you’re enjoying the podcast, please share it with other people.

Amanda: Yeah! Share! Subscribe! All that jazz.

Paul: And we’ve got just a ton of great podcasts planned over the next year or two.

Amanda: We do.

Paul: And we promise, I promise. I’m trying to get better.

Amanda: [laughing] We all are.

Paul: Okay. Thanks, everybody.

Amanda: Thanks.

Nora: Thanks.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, and you’d like us to discuss it on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.