Savvy employers know that legal and regulatory trends are toward candid and effective communication. Think interactive process under the ADA. But, at times, this same rule applies to employees. Here, an employee who refused to read the Rosary with a resident was terminated. The refusal was considered failing to perform a requirement of her job, since the resident requested that the prayer be read to her. This was the fifth incident in her 13 months of employment.
The employee later sued for religious discrimination and won a jury verdict. The Fifth Circuit reversed however. Why? Because the employee never claimed to a manager, before the termination decision, that the request to read the prayer was against her religious beliefs. Rather, the managers involved in the decision knew only of the employee’s refusal to perform the job duty, not that the refusal was tied to her religious beliefs. This decision is similar to the Tenth Circuit’s decision, written about here, regarding an employee’s request to wear a head covering but without having invoked the religious basis for the request.
Interestingly, in that Tenth Circuit case, the plaintiff was the EEOC, not the individual employee, and the EEOC recently asked the Supreme Court to grant permission for an appeal.