Employers are often on the verge of becoming caught up in a firestorm when it comes to the religious and moral beliefs of employees. On the one hand there is the legal risks. But on the other, no business owner wants his or her business to be “trending” as the subject of a divisive public relations firestorm. Two examples illustrate these concerns:
Moral Objections to Giving Flu Vaccines.
On February 19, 2015, a federal district court judge ruled that Walgreens was within its rights to fire a pharmacist who had moral objections to administering flu vaccines. Specifically, the plaintiff, 66-year old Rodney Prewitt, was a pharmacist who had worked at the company for about five years prior to suing Walgreens. The lawsuit was filed after the pharmacy started a flu vaccine program that required pharmacists to complete a training program in order to administer the vaccines and immunize customers who asked for the service.
Prewitt, however, had moral objections to giving the vaccine and voiced these concerns at the outset and even before a lawsuit was filed. These concerns were confirmed in correspondence sent by Prewitt’s attorney to Walgreens, which documented his objection to providing immunizations “on the grounds of his moral/ethical and/or religious beliefs,” (citing to a state “Conscience Policy” law). He also referenced age discrimination in this pre-suit correspondence, which eventually formed the basis of his lawsuit.
The judge noted that Prewitt “testified that he was not allowed to work because of his conscience objection. The plaintiff proceeded under the theory that his suspension/termination were ‘wrongful’ based on his moral objection up until he realized that this claim was legally deficient.” The judge further found that Prewitt had made a minimal showing for an age discrimination claim (e.g., he was over 40, was qualified for his job, suffered an adverse employment action, and the circumstances of that action could indicate age discrimination.”
At that point, the burden shifted to Walgreens to show that it had a legitimate and nondiscriminatory reason to fire Prewitt. In this regard, the company argued that after the pharmacy started its vaccine program, administering those vaccines became a required part of Prewitt’s job. Accordingly, Walgreens demoted Prewitt and later terminated him because he refused to immunize customers. Accordingly, the Court made the following ruling dismissing the case:
The facts are clear. Walgreens made a business decision to market vaccinations, specifically the flu vaccine. Mr. Prewitt did not agree with this decision and voiced a moral objection. He refused to perform an essential part of his job. Though Mr. Prewitt’s objection may have been genuine and sincere, he has not established any unlawful discrimination by his employer.
Doctor refuses to treat Lesbian Couple’s Infant after “much prayer.”
Last week a Metro Detroit pediatrician refused to treat an infant because the parents were lesbians. The Detroit Free Press reported that Dr. Vesna Roi, after agreeing to treat the lesbian couple’s child, later changed her mind. For reasons not reported, Dr. Roi waited until the lesbian couple showed up for their infant’s appointment and were in the waiting room to make them aware of her decision. Adding injury to insult, Dr. Roi refused to personally inform the couple and had another staff member tell the lesbian couple of the change. According to the doctor’s apology note, “after much prayer following your prenatal (visit), I felt that I would not be able to develop the personal patient doctor relationship that I normally do with my patients.”
It is important to note that Dr. Roi did nothing illegal under the circumstances — in Michigan there are few legal protections that protect the LGBT community from discrimination. But consider this story from Dr. Roi’s practice, Eastlake Pediatrics, and her fellow doctors – they are now at the center of a divisive public relations firestorm that has nothing to do with the business. Further, as of publication of this blog article, there were almost 600 comments and the story had been retweeted over 300 times. Those comments run the spectrum – from insightful t0 dergatory – and represent views at both ends of the spectrum. But none of them speak to the quality of the core services being offered at the medical practice.
In addition to responding to the public relations side of the equation, there are the legal concerns: If the doctor is an employee of the clinic, it would have to address the likely religious discrimination and/or accommodation claim the doctor would no doubt make if any adverse employment action were to be taken by the employer. And, as the above pharmacist’s lawsuits illustrates, even a weak case can be dressed up to include other claims (religious belief/accommodation) that takes time and money to defend against.
So what’s an employer to do when an employee has a moral or religious objection that implicates an employer’s business? Unfortunately, there is no single right answer or set of recommendations that can be offered because the appropriate response will depend upon the actual circumstances. But even so, it is likely that the employer will need to make difficult decisions to balance protecting the brand and its business in the eyes of its customers while respecting the religious and other rights of employees. Have fun with that.
For more information about this article or complying with federal and Michigan employment laws, contact attorney Jason Shinn.