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.