It is unlawful for an employer to discriminate against an employee because
of his or her religion under Title VII of the Civil Rights Act of 1964.
But what if the employer is not made aware of the employee's religious
beliefs and then fires her. Can the employer be sued for religious discrimination?
A Fifth Circuit Court of Appeals
decision handed down last week dealt with this issue. Kelsey Nobach was hired as
an activities aide by Woodland Village Nursing Center in August 2008.
Her employment spanned thirteen months during which she received four
negative employment write-ups, two of which were for continual tardiness,
one for making a false accusation against a co-worker, and another for
stealing a resident's nail polish, all noted in her employment record.
On September 19, 2009, while on an unscheduled shift, a nurse's assistant
who was not Nobach's supervisor told her that a particular resident
had requested that the Rosary be read to her. She replied that she couldn't
pray the Rosary because it was against her religion, but she neither informed
the assistant or anyone else that she was a "disfellowshipped"
Jehovah's Witness who objected to religious symbolism and the praying
of repetitive prayers. Neither the assistant nor Nobach pursued the matter
further, but the resident did, complaining to management that no one had
prayed the Rosary with her.
At the termination meeting five days later, the activities director immediately
told Nobach she was fired. Not until Nobach asked why was she told by
the director that she had been written up for the incident and was now
fired for failing to assist a resident with the Rosary. The director said
she didn't care "if it's your fifth write-up or not. I would
have fired you for this instance alone." At this point Nobach —
for the first time — told the director that performing the Rosary
was against her religion. The director responded: "I don't care
if it is against your religion or not. If you don't do it, it's
insubordination." Nobach was also given a written reprimand ("This
is Ms. Nobach's 5th write-up!") and a written termination report
that said "last write up on 9-24-09 for not doing [R]osary with resident
is what brought forth termination."
Nobach sued for religious discrimination. A jury awarded her $69,500 in
damages. The Fifth Circuit reversed the verdict, stating that it simply
could not find evidence that Nobach had advised anyone before her discharge
of her religious beliefs, nor had she advised anyone involved in her discharge
that praying the Rosary was against her religion. She apparently offered
no evidence that the nursing home knew of her religious beliefs until
after she was actually discharged.
According to the court, If Nobach had presented any evidence that her employer
knew or reasonably should have known the reason for her refusal was her
conflicting religious beliefs, the jury verdict finding religious discrimination
could stand, said the court, "but no such evidence was ever provided
to the jury."
The takeaway: If you have certain religious beliefs that may impinge upon
your duties at work, be sure to notify your employer of those beliefs
immediately upon starting the job. If your employer has no knowledge of
your beliefs and how they may affect your responsibilities, then you will
have no basis for claiming religious discrimination if you are terminated.