Friday, October 8, 2010

Refusal to Process Same-Sex Domestic Partnerships - Religious Accommodation - COTW #10

This week's employment law case of the week touches on a few hot-button issues - specifically, same sex marriage and religious accommodation. The case is Slater v. Douglas County, 2010 WL 3834564 (D. Ore. Sep. 24, 2010). The County Clerk's office might have to accommodate an employee who refuses to process same-sex domestic partnerships.

The case takes place in Oregon where same-sex domestic partnerships were legislatively recognized in 2007. An employee in a county clerk's office believed that homosexuality is a sin. The employer said it would notify the employee if any other positions opened up but otherwise refused to accommodate her. Eventually she was terminated.

She has a pretty clear prima facie case of religious discrimination under Title VII:
1. She had a bona fide religious belief, the practice of which conflicts with an employment duty;
2. She informed her employer of the belief and conflict; and
3. The employer discharged her because of her inability to fulfill the job requirement.
So the focus shifts to whether the employer made reasonable efforts to accommodate her or whether accommodation would impose an undue hardship.

The Court found that the employer's offer to ship her to another position if one just happened to open up was not a good faith effort to acocommodate. The Court also noted that no effort had been made to ascertain whether an accommodation of the employee's belief would actually impose an undue hardship.  For example, could she take on more marriage responsibilities while her co-workers picked up the slack in domestic partner work? Have other counties faced this situation and how did they resolve the issue?

I'll note that there were five clerks in the office after the employee's termination, and the county only processed eight domestic partnerships in all of 2009.

The Court specifically found that the employer failed to "engage in an interactive process." But, the case should still proceed to trial to discern whether any accommodation could be implemented without imposing an undue hardship.

HT: Volokh Conspiracy - County Clerk’s Office May Have Duty to Accommodate Employee With Religious Objections to Processing Same-Sex Domestic Partnerships.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.