Religion and LGBTQ+ Status: The Clash of Two Protected Classes

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By Deborah J. Hopkins, November 13, 2024

Quick facts:

  • LGBTQ+ status is protected under the umbrella of workplace sex discrimination.
  • Religion is also a protected category under EEO laws.
  • In a case where an employee raises a conflict between their religious beliefs and agency policy or requirement (such as the mandate to attend training about courtesy to LGBTQ+ individuals), the agency must consider whether exempting the employee would be an undue hardship.

For the past several years, there has been a lot of media attention focused on scenarios where a person requests a religious exemption from performing some aspect of their job because providing service to an LGBTQ+ individual violates their religious beliefs. It’s a topic that members of Congress have recently addressed.

Depending on where you live, state laws may differ, but the topic is (for now, anyway) settled in the Federal government.

Here’s a scenario for you:

Let’s say your agency is hosting a mandatory civil rights training to provide employees with information on how to treat all customers and employees with courtesy and respect. The training includes specific information on how this professionalism applies to LGBTQ+ individuals. The training also explains the anti-discrimination statutes that are applicable to all Federal employees of all categories (including age, race, disability, etc.).

Employee X claims he should be exempt from the LGBTQ+ section of the class because ”this subject matter contradicts my sincerely held religious beliefs that nobody is born gay. These are protected beliefs, expressly protected by Federal law.” This amounts to a request for a religious accommodation in the form of an exemption from attending the LGBTQ+ portion of the training.

How should the agency handle this request for exemption?

  1. Deny the request because believing people aren’t born gay is not a sincerely held religious belief.
  2. Grant the exemption as a religious accommodation because of the employee’s sincerely held belief.
  3. Grant the exemption but require the employee to take a written test on the content of the LGBTQ+ portion of the training.
  4. Deny the request because exempting the employee would be an undue hardship.

If you chose D, you agree with the EEOC in Barrett V. v. USDA/NRCS, EEOC App. No. 2019005478 (Mar. 7, 2024). The training did not “require employees to change their personal beliefs, but simply discusses and reinforces the [Agency’s] conduct rules requiring employees to treat one another professionally and to prevent and avoid discriminating against or harassing other employees or customers.” Id. at 3.

When a complainant alleges an agency failed to provide him with a religious accommodation, he must demonstrate that:

  • He has a bona fide religious belief that conflicts with his employment,
  • He informed the agency of this belief and the conflict, and
  • The agency enforced its requirement against him despite his religious beliefs.

Baum v. SSA, EEOC App. No. 01A05985 (Mar. 21, 2002).

The agency may deny the accommodation request if it shows that granting the accommodation would be an undue hardship.  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977); see also Groff v. DeJoy, 600 U.S. 447 (Jun. 29, 2023) (undue hardship is shown when a burden is substantial in the overall context of an employer’s business).

In Barrett V., the Commission held that the complainant failed to show a conflict between his faith and the mandatory training:

Complainant failed to identify–even generally–a religious belief, observance, or practice that conflicted with the employment requirement that he attend mandatory civil rights training that, in fact, simply discussed and reinforced laws and conduct rules requiring employees not to discriminate against or harass others on numerous protected bases, including sexual orientation, and to treat customers and coworkers professionally …

Complainant does not explain how the training worked or even attempted to modify, criticize, or pressure him to change his religious observance or practice–whether before, during, or after the training.

Barrett V. at 18, 20.

In addition, EEOC’s Compliance Manual on Religious Discrimination specifically recognizes that it poses an undue hardship to provide religious exemptions to mandatory training when “[t]he training does not tell employees to value different sexual orientations but simply discusses and reinforces laws and conduct rules requiring employees not to discriminate against or harass other employees based on sexual orientation and to treat one another professionally.” Section 12-IV(B)(2) (Jan. 15, 2021).

The EEOC held that granting the complainant an exemption from attending training on courtesy, including courtesy to LGBTQ+ customers, would pose an undue hardship because the “training was designed to promote compliance with EEO laws and with the Agency’s standards of conduct with respect to customers and coworkers.” Id. at 26. While there is little question about what may happen to the Biden Administration’s Executive Orders on DEIA in early 2025, this does not mean EEO laws or EEO training will go away. In fact, it will be more important than ever for agencies to ensure they are complying with the law when it comes to allegations of workplace discrimination. [email protected]

Related training:

The Good News: It’s Just as Easy to Say ‘Yes’ as It Is to Say ‘No’

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By Ann Modlin, November 13, 2024

Quick facts:

  • Agencies are often risk-averse when it comes to holding employees accountable for performance or conduct.
  • Balance the employee’s impact on the agency mission against litigation risks.
  • Explain to managers the pros and cons of moving on an employment action.

Empirically, it is just as easy to say “yes” as it is to say “no.” The word “yes” has three letters. The word “no” has two letters. Both are one syllable. The extra letter in “yes” is not a game changer.

If that is true, why do we regularly hear managers say things like this?

  • “We wanted to remove the employee for 60 days of AWOL, but counsel said no.”
  • “My employee is performing at an unacceptable level, but HR said no to putting them on a PIP.”
  • “The employee already has a letter of reprimand and a 14-day suspension, but my personnel attorney said no to removal on this latest misconduct matter.”

My first reaction to comments like this is to shake my head and empathize. The government, and not any individual, is on the hook for liability in a losing case.  But agencies are bizarrely risk averse. Even a litigation loss, which does not happen often, is not impacting on anyone financially. Why the fear?

The optimist in me is hopeful that perhaps, just perhaps, advisors need a change in mindset. Try saying “yes” instead of “no.”

Here are some things for advisors to contemplate.

  • If a manager is coming to you about a problem employee, presume that the manager is dealing with a legitimate problem. The employee is negatively impacting the mission. Trust managers. Listen to them. Avoid knee-jerk reactions.
  • Do not dwell on the one case the agency lost in 2006 when considering an employment matter in 2024. Figure out what went wrong in that 2006 loss and avoid doing that in 2024. But do not just say, “No, remember that 2006 case!”
  • Presume the employee is going to litigate. They have many ways to challenge adverse employment actions. So, prepare to win the litigation. Too often, the “no” answer is an effort to avoid litigation. I get it – litigation is hard. However, agencies win around 80% of the time at the MSPB and 97% before EEOC Administrative Judges (at least that was the number in 2020). Litigate. Win.
  • Trust your managers. They are the ones dealing with the problem employee every single day. Figure out how to help them. Get to “yes.”
  • Try to understand the negative impact of bad employees on a mission as much as you understand the risks of litigation.
  • Keep in mind, too, that counsel and HR specialists are advisors. Embrace that role. Tell managers the pros and cons of moving on an employment action, but stop defaulting to “no.” If they say they want to take the action, help them do everything correctly. (After all, OPM’s comments on 5 CFR § 752.403 regulations say that agency supervisors make these decisions after consulting with agency advisors.)

Advisors, try to switch your mindset. Break the habit of saying “no.” Use your great skills to put the agency on the path to win the employee’s challenge. “Yes” is not just easy to say and to do! And that’s Good News. [email protected]

Related training:

Kiss-*ss Email Meets a Kick-*ss Last Chance Agreement

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By Dan Gephart, November 13, 2024

Quick facts:

  • Traditional discipline isn’t always the most effective or efficient approach.
  • If writing a last chance agreement, make it clear that any future misconduct or unacceptable performance will be considered a breach.
  • The Reveles case provides a perfect example of the language to use in an LCA.

Who doesn’t love a redemption story? A real-life inspirational tale of an individual turning their life around gives us hope in our fellow humans. We like to believe in the best of people. It’s why we’re so willing to give people “one more chance.”

Until they let us down a second time.

In the world of Federal employment law, FELTG has always been a firm believer in the appropriate use of alternative discipline. If you think you have to remove the employee now because things just couldn’t get worse, wait until you screw up the details of the removal (or suspension or demotion). Alternative discipline lets you avoid those pitfalls. One of the most popular forms of alternative discipline gives the employee a chance to create his, her or their own redemption story. It’s the last chance agreement, and it’s simple.

  • The agency holds the employee’s penalty in abeyance.
  • If there is another act of misconduct or incident of unacceptable performance, the penalty takes effect. And, if the penalty is removed, the employee is removed immediately without appeal rights. (The employee can appeal a breach of the LCA but not the original penalty).
  • However, if there are no future incidents for the life of the agreement, the penalty will not take effect, and the proposed action will be canceled.

Win-win, as they say. The employee keeps the job, you retain an employee, and it’s another wonderful redemption story.

Unless they let you down again.

But that’s OK, as long as you pay attention to the details. Make it clear in the agreement that any future misconduct or unacceptable performance will be considered a breach.

I like to discuss Reveles v. DHS, DA-0752-08-0306-I-1 (2008)(NP) because it’s a great example of how to handle a breach of LCA. Also, it’s one of FELTG’s founding father Bill Wiley’s favorite LCA cases, one he calls the “kiss-ass” case.

Customs and Border Protection notified the appellant, a GS-12 supervisory border patrol agent, of its proposal to remove him on charges of misuse of government computer and lack of candor.  Four months later, the chief patrol agent sustained the charge of misuse of government computer. The agency then offered a last-chance agreement, where it agreed to hold the removal in abeyance for 24 months, provided the appellant agreed to abide by the terms. The appellant signed the LCA a few days later, admitting that his use of a government computer to send emails with inappropriate jokes was misconduct.

Six months after signing the LCA, the appellant sent an email to 39 co-workers in which he referred to another co-worker as a “kiss-ass.” And like that, the employee was removed. The agency called the misconduct “offensive and against Agency policy,” and noted it “demonstrated an unacceptable lack of professionalism and constitutes a violation of the Last Chance Agreement.”

The appellant, of course, filed an appeal. He claimed he was in compliance with the LCA because he meant to send the email to a close friend, who would not have been offended. He claimed the removal was too harsh for his level of misconduct

The judge was not persuaded. She noted the LCA’s language that “any violation of this agreement, including one instance of any type of misconduct, can be just cause for removal,” as well as the agent’s previous admission that misuse of a government computer was misconduct. [email protected]

Related training:

The Grand Bargain: Injured Employee Can’t Sue Agency

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By Frank Ferreri, November 13, 2024

Quick facts:

  • A VA nurse was injured on the job, and the injury was covered under FECA.
  • The nurse’s attempt to also sue the agency was barred by the “exclusive remedy” doctrine.
  • Due to the “grand bargain” that is workers’ compensation law, the employee was limited in recovery to the $2,108.04 she received via FECA.

The workers’ compensation system across the country, including the law that governs federal agencies, is often called the “grand bargain” because it guarantees – with some exceptions – that an employee’s work-related injuries will be compensated in exchange for an assurance that the employer can’t be sued for those same injuries.

Recently, Lopez v. U.S., No. 1:23-cv-03538 (D.D.C. Oct. 8, 2024), demonstrated the “exclusive remedy” doctrine in action.

The injury

A longtime registered nurse for the Department of Veterans Affairs suffered muscle strains, nerve damage, and chronic pain after a patient attacked her while she was on duty. The nurse filed a Federal Employees’ Compensation Act claim with the Office of Workers’ Compensation Programs. OWCP accepted most of the claim and paid the nurse $2,108.04 to cover her related medical costs.

The nurse then filed an administrative claim under the Federal Torts Claims Act, alleging the hospital was negligent in not warning her of the danger the patient posed and in not providing her with a security guard for her protection. The VA denied the administrative claim, stating that her earlier FECA claims precluded her FTCA claims. The nurse brought the FTCA case to court.

Exclusive remedy rule

FECA contains an exclusive remedy provision. In exchange for offering fixed compensation in lieu of litigation rights, the law protects the government from suits under statutes like the FTCA. A government employee covered by FECA cannot bring suit under the FTCA until the Secretary of Labor, in the form of the OWCP, has first found that FECA did not cover the employee’s injuries. FECA’s exclusive remedy provisions nixed the nurse’s FTCA claim in court.

“Plaintiff is a federal employee who seeks compensation for injuries she incurred at the VA,” the court wrote. “She filed a FECA compensation form with the OWCP, the OWCP determined that the FECA covered her injuries, and the OWCP provided her with compensation.”

In an effort to spare her case from the exclusive remedy barricade, the nurse alleged she experienced emotional injuries. The court noted that although “the state of the law concerning FECA coverage for emotional and psychological injuries sustained by federal employees remains unsettled,” it didn’t make a difference because once FECA applies to a claim, exclusivity attaches.

The court dismissed the nurse’s tort claim against the agency.

The statute

In reaching its decision, the court relied on the language of FECA and a longstanding precedent case applying it, as follows.

5 USC 8116(c): This statute provides that the “liability of the United States under [FECA] … with respect to the injury or death of an employee is exclusive and instead of all other liability.”

Daniels-Lumley v. U.S., 306 F.2d 7269 (D.C. Cir. 1962): In a case involving a federal worker who slipped on an icy sidewalk, the court spelled out that “unless [a] plaintiff’s injuries were clearly not compensable under the FECA … , we believe that the Secretary of Labor must be given the primary opportunity to rule.”

In other words, the “grand bargain” kicks in when an employee’s injury triggers FECA coverage, which in turn protects the agency from having to shell out additional damages that might be awarded in a tort action.

The lesson

If a federal employee’s injuries are compensable under FECA – and especially if she’s already been compensated through the operation of FECA – she will be barred from bringing a tort action under another federal statute, such as the FTCA.

On a related note, if the injuries rise to the level of a disability, the agency has an obligation to accommodate the employee’s medical restrictions if doing so does not cause an undue hardship. [email protected]

Related training: