By Molly E. Whitman

Abstract
Richard works with Susan at the telephone company. Richard is a devout Christian who believes, according to the Bible, that homosexuality is a sin. Susan is an openly lesbian woman, and recently, Richard gave her a pamphlet containing Biblical scriptures condemning homosexuality. Susan finds this action deeply, personally offensive, and she fears that Richard will hold her to a double standard or pass her up for promotions because of her sexual orientation. After Susan complains to the human resources department, Richard’s supervisor asks him to refrain from speaking to Susan about her sexual orientation, but Richard protests that he has made a personal vow to God to speak the word of God as a “living witness” against homosexuality.

The telephone company is in a state that does not have a local statute banning employment discrimination on the basis of sexual orientation. The company has a sexual harassment policy, but the policy does not touch on religious or sexual orientation discrimination. If the telephone company disciplines Richard, for example, by terminating his employment, could the company be liable in a wrongful termination suit? If the company permits Richard to continue sharing his antihomosexual beliefs, does Susan have any recourse in the law because her employer has ignored her reports of harassment? Or is there some third option, in which the employer must allow Richard some accommodation that satisfies his religious needs but does not create a hostile work environment for Susan?

Most employers are subject to Title VII of the Civil Rights Act of 1964, the well-known federal law that protects employees from discrimination in their jobs due to their “race, color, religion, sex, or national origin.” Although Congress originally intended Title VII to combat racial intolerance in the workplace, these other classes were added to the statute before its passage and today form the basis of the expanding practice area of employment law. Because Title VII applies to religious employees but not homosexual employees, the telephone company in the hypothetical may feel that it has more of a duty to protect Richard from discrimination than Susan. In fact, there is no federal law prohibiting employers from making adverse employment decisions regarding their lesbian, gay, bisexual, and transgender (LGBT) employees. The telephone company faces a difficult decision-if it fails to establish some sort of reasonable accommodation for Richard’s religious practices, it may be subject to a religious discrimination suit. But if the telephone company chooses to permit Richard’s behavior to continue unabated, it risks sacrificing the happiness and productivity of other employees, including Susan, who may find Richard’s religious practices particularly offensive and disruptive. At the same time, the telephone company wants all of its employees to be happy so that it can have an efficient and productive workplace.

This Comment examines the interaction between sexual orientation and religion in the workplace and how the current state of the law can produce a variety of confusing, contradictory, and often surprising results. Today’s employers seek to promote a diverse workforce to be viable in the global marketplace. However, because religious employees enjoy a wide variety of statutory protections for their religious practices and beliefs, employers must sometimes compromise to allow potentially irritating or unwelcome conduct in order to provide reasonable accommodations for their religious employees.

Part II of this Comment discusses the evolution of religious discrimination under Title VII. Part III examines how sexual orientation has been excluded from Title VII and the ways in which LGBT plaintiffs have been marginally successful in bringing certain types of gender-discrimination claims. Part IV highlights some of the most influential cases in which religion and sexual orientation have played tug-of-war at work and in the courtroom. Finally, Part V explores various scenarios and how employers are likely to react under the current state of the law. However, because the law leaves many questions unanswered, employers will probably be left feeling confused about how to proceed when confronted with employees whose core ideological values strongly conflict with those of their coworkers.

Download the full article (PDF) here.

Recommended Citation
Molly E. Whitman, The Intersection of Religion and Sexual Orientation in the Workplace: Unequal Protections, Equal Employees, 65 SMU L. Rev. 713 (2012)