By Vicky Slade
There’s a lot of buzz around the country these days about religious freedom. You have probably heard of the so-called “religious freedom” bills popping up in various states, which many believe are thinly veiled efforts to legalize discrimination against LGBT folks (for more on these, check out this great New Yorker piece). While Washington is (fortunately) not currently considering a similar law, a couple of recent Washington Supreme Court cases show not only that the issue of religious freedom is a hot one here as well, but also that is a tricky one that must be handled carefully.
Let’s look at two sides of the coin. First, as you may have heard, Washington’s Supreme Court, in a somewhat confusing and perhaps a little less dramatic fashion than anyone might have liked, recently narrowed the exemption for religious employers from Washington’s Law Against Discrimination (WLAD) in Ockletree v. Franciscan Health Systems. WLAD is the statute that makes it illegal to discriminate against an employee on the basis of their race, gender, ethnicity, etc. Up until recently, any religious non-profit organization was exempt from WLAD, meaning their employees could not sue them under state law for discrimination, harassment, or retaliation.
In Ockletree, an African American man was fired from his job as a security guard in a Tacoma hospital after he suffered a stroke. He sued, claiming the reason he was terminated was his race or his disability. The hospital responded that it was exempt under WLAD because it is a nonprofit religious employer. The Washington Supreme Court agreed to hear the case and ended up issuing a fragmented, three-part decision where the tie-breaker Justice ruled that the religious exemption was not unconstitutional in general, but that it should not apply when the person’s “job qualifications and responsibilities are unrelated to religion.”
This result makes sense on some level, right? Ockletree was a security guard, not a priest. His employer’s religious affiliation had nothing to do with his job. You can’t hide behind a religious belief and be allowed to discriminate against someone. But what about the flip side? Should you be able to be forced to recognize a religious belief in the workplace?
Another case that is on appeal before the Washington Supreme Court right now has serious implications on this question. In Kumar v. Gate Gourmet, employees at an airport food services company brought suit because their employer would not provide food for them that was consistent with their religious beliefs. Because of the location of their jobs, the employees could not bring food to work with them, and they could not go off-site to eat. Under WLAD, employers do not have to accommodate employees’ religious beliefs, so technically the employer had no duty to give special treatment to these employees.
The Supremes are going to decide whether to change that rule. Legal Voice believes there should be some duty by employers to accommodate religion, but we hope they don’t take it too far. As we have seen all too often, “religious freedom” can be used as an excuse for discrimination, and, while we support employees’ right to food that is consistent with their sincere beliefs, we do not want court-sanctioned protection for someone’s discriminatory refusal to work alongside or serve certain types of people. Will the justices strike the right balance? We will have to wait and see. Read Legal Voice’s amicus brief in this case here.
Vicky Slade is an employment attorney at Garvey Schubert Barer and the newest member of the Legal Voice Board. She is also an avowed discrimination law nerd and a big fan of Justice Wiggins’s bowties.