Mandatory Religious Liberty Training By Extremist Anti-Abortion Group Coming To Your Workplace

 In a WTAF moment I'm still trying to process, Southwest Airlines has been ordered to provide religious liberty training to its lawyers. The training is part of the remedy a judge appointed by TFG has ordered after the airline lost a religious discrimination case. So far not so bad, right?

But the judge has ordered the training be done by the Alliance Defending Freedom, a far right extremist anti-abortion group that wrote the Missouri abortion ban and worked to overturn Roe. They are currently suing the FDA to ban abortion pills. 

I just don't see how forcing them to undergo this kind of extremist religious indoctrination doesn't violate the lawyers' religious liberty. Appoint a real trainer, not some zealots.

The order is stayed now pending appeal, but the case is terrifying. If this case stands, then employers can be ordered to indoctrinate employees in right-wing extremism.

If you find this disturbing, vote blue in all elections, especially Senate and the President, but lower races as well. 

Did The Supreme Court Just Make It Legal To Discriminate?

As I'm sure you've heard unless you've been in outer space for the past couple weeks, the Supreme Court ruled that a person who thinks she might want to have a web designer business (but who has never actually designed a website in said business) could refuse to design a website for a gay marriage that she was never actually asked to design. SMH. Let's put aside the issue of whether this should have been a case in the first place, and deal with the question that is on everyone's mind: 

Is it legal to discriminate now?

Answer: Well, no. Not really. But maybe. Sigh.

The actual ruling says this: "Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees." Seems not so bad, right? And it has nothing to do with hiring and firing, so it has no express immediate effect on employment discrimination laws. But the decision does open the door to future interpretations that are pretty bad.

The interesting part of this ruling is that it isn't based on religion. The Court didn't say people can use their religion to discriminate. At least not yet. Well, at least not in this particular opinion. Instead, they based it on free speech.

So people are asking me, can I post a sign on my business that says, "We don't hire bigots or homophobes"? The answer is probably, but you probably could have done that before this decision. What you (probably) can't do is post a sign that says, "We don't hire evangelicals." And in places like my county which prohibits political affiliation discrimination, you (probably) can't post a sign saying, "We don't hire Republicans."

The fake web designer in this case swore up and down that she would accept business from LGBTQ customers, and that her only problem was with gay marriage websites. Do we believe her? Heck no. She doesn't even have an active web designer business yet, and the only alleged customer who asked about a gay marriage site is straight and says it never happened. But still. The Court focused not on discrimination against LGBTQ people, but on this: "Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction." They also focused on the fact that her alleged profession is creative one that is "expressive in nature."

So let's look into the future and assume she actually will eventually have a real website design business. Let's assume she will be so busy she needs staff. What will happen if a gay website designer who is married to a person of the same sex applies? Can she say that the business reflects her personal expression and her sincere beliefs prohibit her from endorsing gay marriage  by hiring such a person? Probably a stretch, but I can see it happening. Can she hire the person but say that her sincere beliefs prohibit her from providing insurance to his spouse? Very possible (see the Hobby Lobby case).

How will this case apply to employment law in the future? Well, I have some strong suspicions about how evangelical employers will try to apply it. But what about other employers? What if your beliefs are similar to those of The Chosen? What if your sincere belief is that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender, and those who refuse to use non-binary pronouns, must forever after or until they relent, be referred to as they/them. Can you ask in interviews about the person's beliefs on pronouns and misgendering? Maybe. If so, can you automatically disqualify anyone who says their religion requires the opposite? Hmm. Unclear. If you hire them when they admit that they deliberately misgender due to their sincere beliefs, when you forever call them by the gender opposite that on their birth certificate can they claim sex or religious discrimination? Possibly.

As you can tell, I have lots of questions about this case and how it will apply to employment law in the future. Questions such as:

• Can a man whose sincere belief says women belong in the home now refuse to work with women?
• Can a woman whose sincere belief says that Black people are under the "Curse of Ham" and are thus inferior pay Black employees less than white ones? (This excuse was used to justify slavery).
• Can an employer whose sincere belief is that women are suited only to secretarial work refuse to hire female truck drivers?

This "sincere belief" stuff cuts both ways.

• Can an employer whose sincere belief is that anyone who voted for Trump is ethically deficient refuse to hire Republicans?
• Can a woman whose sincere belief is that anyone who believes that abortion should not be allowed in cases of rape, incest, and for the health of the mother is unfit to lead anyone refuse to grant a promotion to Catholics?
• Can a man whose sincere belief is that anyone who supports book banning is unfit to teach refuse to hire evangelical teachers?

I think these questions will be answered soon. The answer under the law a year ago is no to all of the above. But now, apparently anything goes. So hold onto your hats and just assume things will get crazy before they settle down.

Right now, employment discrimination is still mostly illegal. But that could change. Be ready.

How To Make $400,000 By Being An A**hat; And, Are You One Of The Chosen?

 I had just read about the philosophy professor who claimed it was against his religion to refer to a trans woman as she/her, and then sued after he was disciplined. The college just settled for $400,000. This isn't the first case where an evangelical Christian has claimed that their religion prohibited basic human decency and manners. And that got me thinking.

I then went for a walk and went face-first into a spiderweb and had an epiphany. An enlightenment, if you will. A new religion. Maybe you'll want to join it. And before you say, hey, you can't just pull a religion out of a hat, first of all, I have Mormon clients you've just triggered. Second, all you need for a religion to be legally protected is a sincerely held belief, observance, or practice. Here's what EEOC says about religion:

Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” A belief is “religious” for Title VII purposes if it is “religious” in the person’s “own scheme of things,” i.e., it is a “sincere and meaningful” belief that “occupies a place in the life of its possessor parallel to that filled by . . . God.” The Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs, and that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” An employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.

Here are the beliefs of this spiderweb-inspired religion:

Name of religion: The religion is called Church of the Chosen. Why? Because the Creator's chosen people have always been the downtrodden and bullied. The misfits. The Jewish people are a good example of the chosen people, as are everyone who has been looked down upon. So if you are are gay, lesbian, trans, queer, female, Black, Brown, ace, atheist, agnostic, nerdly, disabled,  wrong in all the right ways, an underdog, a nitty gritty dirty little freak*, or you celebrate Festivus, do cosplay, geek out on a hobby, expound on the glories of wine or beer, collect rocks or books, or ever played D&D, then you are one of the Chosen.

Creator: The Creator of all things does not care what you call them. You can refer to them as God, Jehovah, Allah, or Sue. However, they do want you to know that they are non-binary. They are neither male nor female, having no need for reproductive organs. All humans are made in their image, including male, female, intersex, non-binary, and all iterations of sexual identification and sexual preference. Their pronouns are they/them. They aren't saying if there are more than one, or none, of them.

Belief: The Creator does not care if you believe in them or not. They do not need any particular form of worship. You can be atheist, agnostic, Buddhist, Muslim, Jewish, Christian, Santeria, Pastafarian, or any other religion and still be part of the Church of the Chosen. 

Pronouns: The Chosen believe that people should be given the courtesy of being called by their preferred pronouns. The Chosen also believe their religion demands** that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender. So, in the case of Nicholas Meriwether, the Chosen shall now refer to the now-rich philosophy professor as Ms. Meriwether, and use she/her pronouns. For those who refuse to use non-binary pronouns, they shall forever after or until they relent, be referred to as they/them. This is our sincerely held belief, one of our core beliefs, and it must be respected. We fully expect the Alliance Defending Freedom to represent anyone who is disciplined for doing so. As their senior counsel, Travis Barham, said, “This case forced us to defend what used to be a common belief — that nobody should be forced to contradict their core beliefs just to keep their job.”

Science: The Chosen believe in science. The Chosen believe in following the recommendations of the CDC, the WHO, and their physicians. We believe in getting recommended vaccinations unless we have an allergy or our doctor otherwise advises us against them. We believe in using masks to prevent the spread of deadly diseases. The Chosen also believe that they should not have to sit next to anyone who is both unvaccinated and unmasked for a deadly disease against the recommendation of medical professionals.  While the Chosen believe it is anyone's right to believe that masking hides the face and is against the Creator's will, the Chosen also believe that their religion demands they, and their children, avoid such people, who will almost certainly contaminate their bodies. Thus, they must assert a religious exemption if they believe they are being required to be exposed to such contamination.

Bodies: The Chosen believe that their religion demands they have control over their bodies, and that any decisions related to their bodies be between their doctors and them. The religion demands that the Chosen claim a religious exemption from the dictates of any government or other authority which would limit their ability to choose birth control, abortion, gender-affirming treatment, gender-affirming surgery, or make other choices about their bodies. The Chosen in the medical profession also believe that they must assert a religious exemption and refuse to abide by any government restrictions on what treatments they may provide to patients who have chosen to utilize birth control, abortion, gender-affirming treatment, or gender-affirming surgery. 

Education: The Chosen believe that children should be taught about all kinds of families, and that children and teachers should be able to speak about their own families. The Chosen also believe that it is sacrilege to fail to teach all aspects of history, good and bad. Teachers who are Chosen must claim a religious exemption and refuse to abide by restrictions on discussing same-sex parents, gender dysphoria, science, critical race theory, math, or banned books. Parents who are Chosen must insist that teachers and schools exempt their children and abide by their religious beliefs in this regard. 

Prayer: The Creator is not a personal genie. They do not want to be bothered by football games, craps games, school functions, civic meetings, or other trivial matters. The Chosen believe it is sacrilege to engage in public prayer other than in places of worship, prayer groups, or other places where 100% of those in attendance actively want to participate. The Chosen believe it is your absolute right to bother the Creator with whatever you want to bother them with, as long as you do not force others to listen in or participate. The Chosen believe that, if forced to listen to the prayers of others, their minds and bodies will be polluted. Therefore, they must demand a religious exemption to participating in and listening to all forced prayer.

Voting: The Chosen believe that all citizens of a democracy should be allowed to vote and that voting should be made as easy as possible for those citizens. Therefore, Supervisors of Elections and other employees who work on elections have a duty to claim a religious exemption from any and all laws and regulations in which they would be required to reduce the number of voting places, ballot drop-offs, and/or early voting days; make absentee voting more difficult; or make voting in person more difficult.

These are just some of the core beliefs of the Church of the Chosen. I may have more epiphanies about the core beliefs of the Chosen the next time I run face-first into a spiderweb.*** If you also hold some or all of these beliefs, you are one of the Chosen. It is now your religion. You can demand that public accommodations, schools, and workplaces respect and abide by your religion. If one religion can exempt itself from complying with laws and regulations, so must the Chosen.**** It is the way.

* Okay, that last part may be because I was listenng to Pink when my face hit the spiderweb, but who am I to question the Creator? Maybe Pink is a prophet.

** Because the Creator is known to be vindictive as heck. Lot's wife is a little salty about this.

*** Which happens almost daily, because the little buggers are sneaky and we have a large yard.

**** While this is written with some tongue in cheek, I am dead serious. These are my sincerely held core beliefs. If they are yours, then fight for your religious rights as one of the Chosen.

How To Claim A Religious Accommodation For COVID Vaccines

 First of all, let me say that I'm a big believer in the COVID vaccines. They work. That being said, if you have a real religious reason (not a political reason) for seeking an exemption to the vaccine, here's what you need to know.

EEOC just updated its guidance on this issue, so if you are serious about seeking a religious accommodation under Title VII, I suggest you read it. Here are some of the key points:

Be ready to answer some questions. EEOC has its own internal form that employers and employees can use as an example. Employers might have their own forms to fill out. Here are the questions EEOC has for its own employees to answer on the form:

1) Please identify the EEOC requirement, policy, or practice that conflicts with your sincerely held religious observance, practice, or belief (hereinafter "religious beliefs"). 

2) Please describe the nature of your sincerely held religious beliefs or religious practice or observance that conflict with the EEOC requirement, policy, or practice identified above. 

3) What is the accommodation or modification that you are requesting? 

4) List any alternative accommodations that also would eliminate the conflict between the EEOC requirement, policy, or practice and your sincerely held religious beliefs.  

What is a sincerely held religious belief?: "EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605."

What are alternative accommodations?: "An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment."

What are the employer's duties regarding an accommodation request?: "Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests."

Can the employer say no?: "Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability. Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee."

"If an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation." 

What can they ask about my religion?:  "However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice, or observance risks losing any subsequent claim that the employer improperly denied an accommodation."

The sincerity of an employee’s stated religious beliefs, practices, or observances is usually not in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Section 12-I.A.2: Religious Discrimination (credibility and sincerity). Factors that—either alone or in combination—might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

So, when they ask about your religious belief, you need to give specifics. If you say that you believe the body is a temple that you are not permitted to pollute with chemical substances, or that your religion prohibits all vaccines, you will likely need to provide examples. So can you give examples such as not having been vaccinated since you joined this religion, not taking antibiotics, not taking any supplements to boost the immune system, etc? Is there a doctor who can confirm you refused such treatments when ill? Do you also decline alcohol and other similar substances? Do you refrain from eating processed foods and drinks that contain non-organic chemicals? This is the kind of information they are looking for. If you really do follow specific limitations in your medical treatment or consumption of chemicals, then you probably have a legitimate religious exemption. 

Does it have to be a traditional religion?: "The definition of “religion” under Title VII protects both traditional and nontraditional religious beliefs, practices, or observances, including those that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, practices, or observances, employees may be asked to explain the religious nature of their belief, practice, or observance and should not assume that the employer already knows or understands it."

Some traditional religions do object to the vaccines. However, even Christian Scientists made an exception for them, so it is not very many religions. Catholics internationally object to none, but American Catholics in some areas object to Johnson & Johnson. 

I sincerely believe vaccinations are bad. Is that a religion?: "Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching."

And then there's Florida: Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions that include religion (as mentioned above, federal law already has exemptions for religion). The law details how to claim each exemption, and imposes fines on employers for noncompliance. Here's the form to claim an exemption in Florida. Other states have similar exemptions. If an employer in Florida does not accept an employee's properly completed exemption form, violations can be reported to the Attorney General. The Attorney General has the authority to impose fines for such violations:

• Up to $10,000 for private entities employing less than 100 people
• Up to $50,000 for private entities employing 100 people or more

Public employers, including educational or governmental institutions, are prohibited from imposing COVID-19 vaccination mandates. Violations for public employers can be reported to the Florida Department of Health through VaxPassFreeFL@FLHealth.gov.

Even with Florida's lax standards, if your employer catches you in a lie about your "sincerely held religious beliefs," you can be fired, so I suggest being serious about this. Don't claim a religious belief if you don't have a real one.

I guess watching Fox News is arguably being part of a cult, so maybe there's an argument there for a religious exemption. But seriously, get the vaccine if you can. If you don't have a medical or sincere religious reason, just get it. 

If you have a sincerely held religous belief against the vaccines, you might want to talk to an employee-side employment lawyer in your state about your rights.

Holiday Workplace Misconceptions #AllHolidaysMatter

It's the holiday season, and there are lots of misconceptions about the laws relating to holidays in the workplace. Here are a few I'd like to clear up:

Extra pay for working holidays: No federal law requires extra pay for working holidays. Some union contracts and employment contracts require extra pay, such as time and a half or double time for holidays, but most don't. I don't know of any state law requiring extra pay for holiday work. Florida certainly does not.

Holiday pay: If you take the holidays off, maybe you get paid and maybe you don't. Some government employees get paid holidays off by law. Otherwise, it depends on your company policy and any contracts, whether employment contracts or union contracts. Many employers offer certain paid holidays, but they don't have to. If they don't, you may have to use any accrued vacation time or paid time off. If you have none, but still want to take the holiday off, you may have to do it unpaid.

Religious accommodation: If you have a religious reason for needing a holiday off, I suggest putting your request for a religious accommodation in writing to HR or someone in management. If it's a hardship the employer still may not have to grant the accommodation, but most times they are required to accommodate you. On the other hand, time off for your church's holiday pageant or concert is not a religious requirement and probably doesn't have to be accommodated.

Overtime: If you take a holiday or vacation, your overtime pay is only based on hours worked, not the holiday or vacation time.

Discrimination: There are lots of holidays this time of year for lots of religions, so demanding your coworkers or customers greet you specifying a particular holiday could be deemed religious discrimination or religious harassment. Don't try to force your holiday down people's throats. Your employer cannot allow one employee to say "Happy Hanukkah" but prohibit you from saying "Merry Christmas." Your employer can probably prohibit all religious greetings and require a more generic "Happy Holidays" if they enforce it equally. On the other hand, forcing all employees to say "Merry Christmas" may violate some religious prohibitions, such as those of Jehovah's Witnesses. Similarly, if the employer allows religious displays on desks, they must allow all religious displays.

Hopefully these tips will help you get through the holidays without getting fired. Have a wonderful holiday season!

How To Survive The Office Holiday Party Without Getting Fired

It's time for me to remind you that your office holiday party is a minefield. Lots of people get fired for having too much fun or other party-related misbehavior. So I'm reposting the top 8 ways to get yourself fired, and how to avoid them:

1. Drinking: The number one way to get fired is to drink too much. Most of the office party firings I see are alcohol-related in some way. First of all, if you are an alcoholic and can't be sure you won't drink if you attend, then don't go. If your boss insists, ask for a reasonable accommodation under the Americans With Disabilities Act to be excused from attendance. If you can and do drink, limit yourself to two drinks tops, then switch to soda. I'm serious here. 

2. Dancing: Some folks get fired or disciplined for "inappropriate" dancing. What's inappropriate? It's in the eye of the beholder, and the boss, customers, vendors and your coworkers are the beholders. When in doubt, sit it out. Any moves that imitate sexual conduct (grinding, gyrating, rubbing) are dangerous if colleagues are present. If you're dancing with a colleague, then be very careful. You don't need a sexual harassment complaint in the new year. If the colleague gets too wild, walk away. If it crosses the line into sexual harassment, report it.

3. Driving: A DUI can get you fired. Plus, you'll have a conviction and will never pass another background check, so you'll have trouble getting a new job. If you don't believe me, check out my article 9 Ways A DUI Can Destroy Your Career. If a colleague or friend tells you to hand over your keys because you've had too much, do it and don't question them. There's always Uber or a taxi. It's way cheaper than defending against a DUI/DWI charge and losing your job.

4. Mistletoe: Kiss your spouse or date under the mistletoe, but not a coworker, customer, vendor or, god forbid, your boss. Seriously. And any company that still has mistletoe up at holiday parties is too stupid to work for. Think about polishing your resume if you see some hanging.

5. Romance: After a few drinks, colleagues start to look pretty attractive. Office romances are dangerous. If you have a one-night-stand or party makeout session with a coworker, vendor, customer (or worse, the boss), expect repercussions at work. Sure, many couples meet at work. My parents did. But tread carefully. No means no. If you break up, stay away and don't retaliate. Persistence does not pay in an office relationship. You can get fired for sexual harassment if you pester a coworker for a date. Don't accept the invitation to the colleague's room. If there's a real romance, take it slow and be sure before you take it between the sheets. If you do pursue an office romance, check the company's policies. You might have to fill out a disclosure form, and you'll likely be separated so you no longer work together.

6. Pressure: Don't pressure anyone to attend an office party. They may have religious objections to attending. Maybe their disability prevents them from coming, or they have a spouse with a disability. You don't want to get charged with religious or disability harassment. And don't start the Merry Christmas/Happy Holidays debate. December is for Hanukkah, Christmas, Kwanzaa, Festivus, Winter Solstice, Hogmanay, and National Ding-A-Ling Day, to name a few. All holidays matter, especially in a workplace subject to religious discrimination laws. Don't end up accused of religious harassment for the holidays.

7. Games: Some offices have party games. You may be tempted to be lewd or bawdy. Sure, many folks will laugh and call you the life of the party. But you may ruin the party for someone you offend, like the boss. Avoid making sexual innuendos, telling off-color jokes, or making other comments that may be deemed inappropriate or offensive.

8. Singing: If the office loves karaoke, have fun. Go ahead and let your inner rock star shine. Just avoid songs with curse words, inappropriate lyrics, or offensive undertones. If you're singing with a colleague, avoid anything overtly sexual. Also avoid any sexual gestures while singing.

Sure, I'm a bit of a party pooper. But if you follow my advice you'll have happier holidays because you'll survive them employed.

What A Broad Religious Exemption To Discrimination Laws Will Mean

While the Trump Administration announced that it would keep in place President Obama's Executive Order protecting employees of federal contractors from LGBT discrimination, there have been reports of another proposed executive order that would provide a religious exemption from all discrimination laws.

The four-page draft order, a copy of which is currently circulating among federal staff and advocacy organizations, construes religious organizations so broadly that it covers “any organization, including closely held for-profit corporations,” and protects “religious freedom” in every walk of life: “when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.”

If signed this Executive Order could conceivably be used to argue exemptions to race and sex discrimination laws as well as LGBT discrimination. While I don't think the President (who is not king or dictator, yet) can change existing laws with the stroke of a pen, this could result in years of litigation on these issues.

There are certainly many (if not most) religions that consider women to be second-class citizens. Some religions believe women should be subordinate to men, should not work outside the home, and/or should cover themselves from head to toe. Will the Administration be so intent on allowing LGBT discrimination that they forget about women's rights?

Indeed, the Bible was used for years to argue in favor of race discrimination and slavery. Such a broad exemption could be used to justify race discrimination by certain religious groups.

On the other hand, it would be conceivable that someone (maybe John Oliver, Trevor Noah or Samantha Bee) could form a religion to counter all this nonsense. A religion that says it is sinful to discriminate against LGBT, Muslim and other oppressed communities; that it is sinful to participate in oppressing the poor; that it is sinful to participate in increasing wage disparities; that it is sinful to deny excellent education to the poor and middle class; that it is sinful to employ people who would participate in such activities. Some religions already hold similar beliefs.

What would be the effect of such a religion? State and federal employees who were members could use a religious justification to refuse to enforce or participate in enforcement of any laws or policies that are against their religious beliefs. Closely-held for-profit corporations could refuse to employ anyone who held homophobic views, voted for Trump or walk around with Ayn Rand books. I'm betting that those who want to use their religion to discriminate would be the first to howl at such practices.

What's good for the goose is good for the gander. A broad religious exemption to discrimination laws might not have the effect Mr. Trump and his cronies are looking for. Be careful what you wish for.

Those Anti-Muslim Rants Are Going To Get You Sued

In light of the attacks in Paris and the end of Jihadi John, I'm guessing there will be lots of workplace cooler talk about Muslims and Middle Easterners in the news. Inevitably, someone will go on a rant about Muslims. That person will get you sued unless you shut them down speedy quick.

A recent example is a lawsuit filed after a Muslim employee was taunted by coworkers with cries of, "Allahu Akbar" when he was on the phone and setting his password as, "BinLaden1." The coworkers claim it was all in good fun. Not surprisingly, the Muslim employee was not amused.

So yes, it is sometimes tempting in anger over a big news story to vent frustrations on someone who looks or sounds different. I've met people from the West Indies, India, and even South America who looked to coworkers or customers slightly Middle Eastern and who were subjected to horrid treatment: name calling, offensive cartoons, moving them to the back of the workplace so customers won't see them, pranks. Calling a dark-skinned person a terrorist, asking them if they are going to cut off your head, or blaming them for ISIS is stupid. It's also illegal. So is refusing to hire an applicant who wears a hijab, bowing to customer preferences not to deal with a Muslim employee, and firing an employee when you find out that they don't hold your religious beliefs.

To HR people, I would urge you to shut down any such activities immediately. You may not be popular, but you might just save the company from a lawsuit. You might remind offenders that all Muslims are not any more responsible for the attacks in Paris than all Americans are responsible for the actions of Timothy McVeigh (the Oklahoma City bomber).

To Muslims and Middle Easterners (and people who "look" Muslim) going to work this week, don't despair. Take good notes of any incidents, with dates, locations, and witnesses. Print out any offensive emails or written materials. Then report it, in writing, to HR. Call it, "Formal Complaint Of Religious/National Origin Harassment." Lay out how you have been treated differently than non-Middle Eastern/non-Muslim employees (or Anglos, etc.) and any harassment you encountered due to your national origin and/or religion.

If they won't shut it down, contact EEOC or an employment lawyer in your state. You have the right to work in a place free of religious and national origin-based harassment.

No, You Can't Use "Religious Discrimination" To Discriminate (But You Can Use It To Refuse To Serve Alcohol)

With all the brouhaha over the clerk who went to jail for refusing to issue marriage licenses to gay couples, plus being in the midst of the Jewish holidays, I thought now would be a good time to talk about religious discrimination and when employers must accommodate religious beliefs.

Here's what EEOC says about when an employer does not have to accommodate an employee's religious beliefs:

An employer can refuse to provide a reasonable accommodation if it would pose an undue hardship. Undue hardship may be shown if the accommodation would impose “more than de minimis cost” on the operation of the employer’s business.
To establish undue hardship, the employer must demonstrate that the accommodation would require more than de minimis cost. Factors to be considered are “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.” Generally, the payment of administrative costs necessary for an accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes or infrequent or temporary payment of premium wages (e.g., overtime rates) while a more permanent accommodation is sought, will not constitute more than de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally cause an undue hardship to the employer. “[T]he Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”

Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.

So how does this play out when applied to some of the recent cases in the news? Here's how:

Elected official refusing to issue licenses: First of all, Title VII exempts elected officials from its application, so the elected clerk refusing to issue licenses to gay couples has no protection under this law. Even if she did, she is not only refusing to issue the licenses but wants to stop her entire staff from issuing them. If the state had to hire an entirely new set of employees to issue the licenses, that would obviously be more than a de minimis cost. Also, the requested accommodation, that she and her entire staff be allowed to refuse to issue the licenses, conflicts with the supreme law of the land, namely, the Constitution. Plus, the accommodation is a demand that the employer's customers be openly insulted and treated as second class citizens. It would clearly be an undue hardship to grant this accommodation. 

Flight attendant refusing to serve liquor: The same folks clamoring for the state to accommodate the recalcitrant clerk are unwilling to support accommodating the Muslim flight attendant who refuses to serve liquor. The flight attendant was being accommodated for two years without any problems by having her coworkers serve liquor when requested, but one coworker complained. Now she's suspended. Here's the problem with the employer now claiming a hardship: it accommodated her for two years. How can it claim that there's a sudden hardship? Time will tell, but I think she probably wins. It doesn't seem very hard to pass the drink order to the flight attendant at the other side of the cart and continue to serve soft drinks and coffee.

Employee who thinks a hand scan is the mark of the beast: As crazy as the belief sounds, if it is sincerely held then it needs to be accommodated, absent an undue hardship. When an employee objected to biometric hand scanning, claiming it was the "mark of the beast" in Revelations, he won his suit against the employer who refused to accommodate him, to the tune of $587K.

Bottom line is that you can't refuse to perform your entire job, but you can ask for accommodations regarding part of your job. You can't demand that your employer discriminate against others to accommodate your religion.

You can't be a bartender who refuses to serve liquor; can't get a job at a hamburger shop and refuse to serve meat; can't get a job at a daycare and the refuse to admit the children because you believe a woman should be at home instead of working; can't be a barber who refuses to shave men's beards. 

But if you need a religious holiday off or don't want to participate in a religious ceremony or activity at work, you're entitled to that.

Madison Enacts Law Protecting Atheists Against Discrimination (But Atheists Are Already Protected Against Religious Discrimination Under Title VII)

While the anti-discrimination ordinance enacted in Madison, Wisconsin adding “nonreligion” to the list of protected categories was touted as the first of its kind in the nation, that’s not quite true. While it may well be the first ordinance specifically protecting those who have no religion, there is already a federal law protecting atheists against work place discrimination.

Under Title VII, the federal employment discrimination law, atheists have long been considered to be protected under the prohibition against religious discrimination. That doesn’t mean there’s no need for laws specifically protecting atheists against discrimination.

Indeed, atheists are one of the most discriminated against groups in the U.S. and the world.

While it’s unconstitutional to impose a religious test on candidates, seven states still have laws on the books requiring candidates to have a belief in god. Even though these laws would likely not pass legal muster if challenged, it’s still almost impossible for a professed nonbeliever to be elected in the U.S. Voters would prefer Muslim, gay or pretty much anyone to atheist candidates. Like gays in the past (and some still in the present), many atheists are closeted to avoid the stigma of simply not believing what others believe.O

According to the American Humanist Association: About half of Americans would object to their child marrying an atheist, and only 33% would hire an atheist in a child care position. Thirteen countries revoke citizenship, deny marriage and even kill atheists.

Whether you like them or not, it’s illegal for employers to discriminate against atheists. Further, if an atheist asks for a religious accommodation like being excused from a religious invocation at the beginning of staff meetings, the employer must grant the accommodation.

If a believer of any religion proselytizes to an atheist employee and the atheist asks them to stop, continued proselytizing could be illegal religious harassment. If an atheist employer goes to HR and reports this kind of harassment, HR needs to treat it the same as any other kind of religious harassment and nip it in the bud.

The reason I think this ordinance is a positive step is that many employers don’t realize atheists are legally protected. I hear, “That’s not a religion,” all too often. At least in Madison, it will be clear to employers that they can’t discriminate against those with no religion.

If you think you’ve been discriminated against at work, contact an employment lawyer in your state about your rights. And you do have rights.

Two First Amendment Rights, Only One Protected: Last Man Standing (Sort Of) Gets It Right

One of my guilty pleasures is watching Tim Allen's show Last Man Standing. Guilty because, unlike the very apolitical Home Improvement, Tim Allen uses his new vehicle to take some slaps at President Obama and liberals in general. In a recent episode, Three Sundays, they addressed two rights protected by the First Amendment, how these rights play out in the workplace, and sorta kinda got them right. However, they didn't explain why one right was protected and one wasn't so I will.

Free Speech: The first issue was the right to free expression. Ryan, the despised-because-he's-a-liberal father of Mike's (the Allen character's) grandchild, has a blog where he posts pictures and criticizes situations he finds on the road (where he's a trucker for a beer company), such as environmental issues and encroachments on Native American land. His company takes umbrage and demands he take down the blog. The problem? He's wearing his uniform in the pictures. Mike tells him it's the right choice to take down the photos. Ryan asks, "I thought you supported my right to free speech, Mike?" Mike responds, "I do, but I also support your company's right to tell you to stuff it."

Mike got it right. As I've said before, the First Amendment doesn't protect your right to free speech at work. People freaked out when I wrote about this in the context of Duck Dynasty. Fewer cared about Ozzie Guillen when he commented about his love for Fidel. Your employer can fire you if they don't like your speech at work. The one exception that's notable is that they can't fire you if you aren't a supervisor and are talking to coworkers or to management on behalf of coworkers about working conditions. Had Ryan's blog been about working conditions then it may well have been protected.

Freedom of Religion: Kyle, the not-so-bright coworker and boyfriend of one of Mike's daughters, is being forced to work on Sundays and he wants time off to go to church. He asks Mike: "Do I have an amendment for my freedom of religion?" Mike says, "It's the same one.You can practice whatever religion you want. Nobody can tell you any different." Kyle then goes on to insist that his boss give him time off for church on Sundays. Here's where the show missed the boat. Kyle's right to have time off isn't from the First Amendment. It's from Title VII, the anti-discrimination law so hated by conservatives like Allen. Among other things, that law requires employers to grant reasonable accommodations for religious reasons and religious practices.

So, while you have rights under the First Amendment, those right aren't protected at work. However, federal and state discrimination laws protect you from religious discrimination. Will we hear Allen making any pro-Title VII comments on the show? Doubtful. And that's probably why he didn't mention it on the show. Title VII protects everyone - black, white, Hispanic, Protestant, Muslim, Atheist, Cuban, American, male, female -from discrimination at work. It probably protects you. It even protects Tim Allen in his workplace, real or fictional.

Can Your Employer Force You To Sign A Contract Saying You Volunteered To Work On Sunday?

It's been awhile since I answered my reader questions here. This question is one I found interesting:

I have a question about unfair work practices. My husband works for a very large company that does extremely high volume during the Christmas season. All employees were required to work on Sunday (following a six day work week). They were told that everyone was expected to be there despite the fact that no one had a day off during the week. This morning when they arrived, they were told that they had to sign a document that said they had volunteered to work on Sunday, otherwise they would be sent home. Most of them signed because they were already there and had planned on working today. Are companies allowed to do something like this?

I can read this question three different ways, so I'll address them all. 

Agreement to volunteer to work for free: The first way I read it is whether your employer can make you sign an agreement that you are a volunteer so as to avoid paying you. The answer is a flat-out no. An agreement that tries to waive your right to overtime or to be paid for all hours worked under the Fair Labor Standards Act is not enforceable. Furthermore, if you work for a for-profit company, you are never a "volunteer" such that you can agree to work for no pay. If the employer suffers or permits you to work, then you are entitled to pay.

Agreement to waive religious accommodation: If you have requested a religious accommodation to work on Sunday, then the EEOC and courts would refuse to enforce an agreement waiving future discrimination. In other words, you can't be forced to sign an agreement to be discriminated against in the future. On the other hand, where states like Florida allow employees to be required to sign agreements in consideration of continued employment, if the employer handed you an agreement on Monday that said you were agreeing that you waived your right to sue for religious discrimination because you worked voluntarily on Sunday, would that stand? The truth is, maybe. The courts have been very harsh on employees regarding noncompete agreements and arbitration agreements that are presented as "sign or be fired," so would a "sign or be fired" release fly? I think probably not, but I'd never underestimate the ability of employers to push for case law that grinds employees' rights into dust. Allowing a waiver like that immediately after an act of discrimination for the sole consideration of continued employment would make a mockery of the employment discrimination laws. If an employer presents you with an agreement saying sign a waiver of discrimination that just happened or be fired, I think that would be unlawful retaliation and discrimination.

Agreement to work on Sunday: If the agreement simply says that you agree to work on Sunday, and you don't have any need for a religious accommodation, then your employer can make you sign an agreement to work on Sundays, and they can say you voluntarily agreed to work on Sundays. Which I guess is true, if they mean you "voluntarily," under threat of losing your job, decided to sign. If you live in one of those states like Florida that doesn't consider "sign or be fired" to be economic duress, then they can probably make you agree.

Vikings Football Player Speaks Up For Gay Marriage, Is Fired: Can He Sue? Maybe

Chris Kluwe is a punter for the NFL. He used to play for the Minnesota Vikings. That is, until he started speaking up in favor of marriage equality. He got permission from the team to do some ads for the cause, but things changed when he wrote and published a letter to a Maryland state official defending a Ravens football player's right to free speech on the same subject. After that, his coach asked him to stop. He didn't.

His coach began to make negative comments about gays repeatedly in Kluwe's presence that they hadn't made in all the years he had worked for them. He also made comments to the effect that Kluwe, "would wind up burning in hell with the gays, and that the only truth was Jesus Christ and the Bible"

He was singled out for harsh criticisms that others had not been subjected to. The comments got increasingly angry, such as: "We should round up all the gays, send them to an island, and then nuke it until it glows."

He was instructed to kick in such a way that it helped the team but made him look worse in the stats. Ultimately, he was replaced. His full statement about what he says happened is here. A story that has the team's response is here.  The team is now investigating and maybe they'll do something, maybe not. 

Let's assume everything he says is true. Does he have a remedy? Let's examine what possible claims he may raise:

• Free speech: This would be a non-starter. I've written about the fact that there's no free speech at work here, here, here and here. The First Amendment protects you against government action, not corporate action.
• Sexual orientation discrimination: Minnesota has a law against sexual orientation discrimination, but there's no law protecting speech in favor of marriage equality. If he were fired for objecting to sexual orientation discrimination within the team, then he would be protected against retaliation, but there's still no openly gay football player in the NFL. The law in Minnesota does protect against perceived sexual orientation discrimination, but I see no indication that the coach actually thought he was gay. If Minnesota has an association discrimination provision in the law, then maybe he can argue he was fired for associating with gays. My guess is he's out of luck on sexual orientation discrimination.
• Political activity: Minnesota has a law on the books making it a crime to retaliate against an employee because of that person's political activity. I think this one may be a winner. The question will be whether he has a remedy under this law because it makes violations a misdemeanor. Any Minnesota lawyers out there want to weigh in?
• Contract: He almost certainly has an employment contract and I know absolutely zero about football contracts. I'd guess they can dump a player pretty much at will, although there may be some hoops they have to jump through. Unless he can only be fired for cause, or the contract says he can't be fired for political activity or for discriminatory reasons, he may have little or no remedy there. Anyone know what's in his contract?
• Religious discrimination: If his coach actually told him he'd burn in hell, this would be the way I'd probably go with it. The coach has strong religious beliefs against gay marriage and Kluwe doesn't share those religious beliefs. In Florida, with no law protecting against political activity discrimination or sexual orientation discrimination, this might be the only way to go with a case like this one. I recently wrote about whether religious discrimination laws allow harassment of employees for various reasons, which you can read here.

Can he sue? I'd say maybe. He has one possible federal claim, one pretty good state law claim and one possible state law claim. I'm guessing we haven't heard the last of Mr. Kluwe, so we'll soon find out.

I said it to conservatives and now I'll say it to liberals: it's best to keep those controversial opinions to yourself at work and in public. If you have a boss who holds strong contrary views, or if you're likely to offend your employer's customers with your opinions, keep them to yourself and your friends (but not in social media). I guess it's a good thing I'm my own boss . . .

Does Your Religion Excuse Homophobic, Racist or Sexist Behavior At Work?

When I wrote the piece about Duck Dynasty's Phil Robertson and his suspension for making racist and anti-gay comments in an interview done to promote his show, many readers told me that Mr. Robertson should be protected by religious discrimination laws. After all, the argument went, he was only expressing his religious beliefs about gays.

Bob
Tt is not freedom of speech, it is freedom of RELIGION--what Phil said was congruent with what the Bible says. Violation of the free exercise clause is the issue, not speech. Can you imagine firing an employee because they expressed atheist beliefs or supported Obama and his queer minions?????

Even though employers have to accommodate religious beliefs at work, do religious discrimination laws allow you to express your beliefs that "the gay lifestyle," and gay marriage are sinful? Are you allowed to tell your female coworkers that women belong in the home and should be subordinate to men? Can you dig out old Jeff Davis's views of the Bible to share with your African-American co-workers?

I write about the legal issues involved in determining how much religious expression at work is protected, and when it isn't in my latest article at AOL Jobs.

Donna's Employment Law Predictions for 2014

Last week I revealed how I did on my predictions for 2013 (pretty darned good, if I do say so myself). Today, I look into my crystal ball for 2014. Here's what I see on the horizon:

1. Minimum Wage: Raising the minimum wage will be a hot political issue in 2014. We saw some movements in 2013 to make significant increases, and that will continue. Unless something drastic happens in the midterm elections, it's doubtful we'll see anything significant on the national level, but look for more states to increase the minimum wage to the $ 9 - 10 range. Some may go even higher, like Seattle's move toward $15. Raising the minimum wage is great for the economy. Unlike trickle-down economics, it gets money circulating quickly. Henry Ford had the right idea: pay your employees enough so they can buy your products.
2. Legalize It: Legalized marijuana will spread to more states, creating some confusion for employers. Can they fire employees who test positive, like Colorado? Or will their state prohibit firings for legal marijuana use like Connecticut, Arizona, Rhode Island, Maine, Colorado and New York? Colorado has a law, as do other states, prohibiting firing/discrimination for legal off-duty activities, so watch for some litigation over this issue there. Look for marijuana growers and sellers to push for laws like tobacco users have in several states protecting them from discrimination at work. In the meantime, medical marijuana users will seek protection under the ADA and other disability discrimination laws.
3. Health Care: ObamaCare kicked in and it will change the way we look at health insurance. Sure, it isn't ideal. But when a million or so people who've never had health insurance or who haven't had it in years suddenly can get medical treatment, they'll start to expect to be treated like human beings instead of human waste. From here, we'll be very close to an upheaval in the way we deal with health insurance. This year, we'll see some confusion as the regulations kick in, some stupid employers dumping insurance and cutting people to part-time to avoid paying insurance, but the employer mandates have been delayed until 2015, so most of the stupid employer activity will be at the end of the year and into next year. I say that employers who do this are stupid because they'll ultimately lose good employees. With more people covered, there will be more health care jobs available.
4. Internships Cut: With employers under attack for unpaid internship programs that don't actually educate the interns and replace regular employees, some programs will simply disappear. That's not all bad, since the interns-as-slaves programs need to die. We'll see better internship programs cropping up, ones that are truly educational, or paid internships. But most of the new programs will start up after this year. This will be a year of lost programs. We'll also see some attempts to put interns under the protection of discrimination and sexual harassment laws. Some may succeed on the state or local levels, but there's no way that happens on a national level with Congress as it is currently configured.
5. Failed Again: Attempts to pass anti-bullying laws and the Civil Rights Tax Fairness Act will fail just like they do every year.
6. NLRB and EEOC Cut Off By Courts: NLRB and EEOC will continue to try to expand the protections employees have. Courts will continue to stop them. Still, they'll inch forward with some new progress for employees. Baby steps.
7. Lip Service: While the midterm elections kick in, we'll hear lots of big proposals to help employees. Little or nothing will pass due to gridlock. Failures will include the FAMILY Act, Arbitration Fairness Act, and ENDA. However, the fact that each of these bills will be blocked will become fodder to take down some of the more anti-employee members of Congress. Maybe 2015 will see some progress.
8. Background Checks: EEOC's efforts to demonstrate that criminal background checks have a disparate impact on blacks have been pretty well crushed so far. However, there will continue to be efforts to ban credit checks. More states will ban or limit use of credit information in hiring. The federal efforts to do so will fail. More states will pass ban-the-box laws barring many inquiries about arrest and conviction records in job applications. There is zero chance such a law will pass on the federal level this election year.
9. Pregnancy Discrimination: The issue of whether pregnancy is covered under the Florida Civil Rights Act will be resolved one way or the other by the end of the year. I think the Florida Supreme Court will say it is already covered. If not, then the legislature will pass a fix. The difference will be for all those women caught in between. If the Court doesn't rule for employees, lots of new moms who thought they were covered and sued under state law will be out of luck. Rule wisely, Supremes.
10. LGBT Protections: States and local governments will continue to pass discrimination laws banning LGBT discrimination. The feds will fail again, but EEOC will continue to push for application of existing law to LGBT employees.
11. Religious Discrimination: Religious employees will push the limits on their ability to proselytize and pray at work. There will be a disconnect between the right to practice religion vs. the right not to be harassed for not sharing a religion and also LGBT rights. Look for right-wing religious groups to push the argument that religious discrimination laws allow them to speak out against gay rights in the workplace. In an election year, we'll see extreme positions pushed on both sides.

Well, that's it for my predictions. I think this year will be one where employees start to wake up to how few rights they have and start to push for more. Major change will come only with a change in Congress.

Can My Employer Make Me Socialize With Co-Workers? Whether you say yes or no to office events, here are your legal rights

It's holiday party time, so this question I received from a reader is timely:

I just read your article about social media passwords, and I have a question for you that my HR person cannot seem to answer for me. My boss told me that I am not relating to the other employees (I didn't realize that I wasn't) and wants me to go to lunch with them or go shopping with them on the weekend. They are mean and spiteful people who look for any way to manipulate people. She asked me about my personal life and made me feel like I had to answer so I did tell her some things. (I won't make that mistake again.) She made personal comments about my relationship and encouraged me to break it off. I would never, ever tell anyone that. What are my rights here? I spoke with our HR department who said that she can say whatever she wants (no matter how rude!), but I can say, "It's my personal life and I do not wish to talk about it." Did they tell me the truth or leave part out? Can she make me go places on my breaks or off time with people I do not want to go anywhere with? I really need some help.

Thank you for advising me on this.

Especially around the holidays, there's pressure on employees to socialize with co-workers. Some companies try to make the holiday parties mandatory. Others have "team building" events overnight or on weekends. Some expect the team to have lunch together. And guess what? You aren't going to be paid for any of this.

What's an overworked employee to do? Read my AOL Jobs article here to find out what your legal rights are if you want to say no, and what legal rights you have if you decide to attend.

Please don't forget that the ABA Blawg 100 is asking for your votes for your favorite blog in the Labor and Employment category. If you think this blog is worthy, I continue to need your vote. Go to the ABA website here. It takes about 30 seconds to register. Then go to the Labor & Employment category. Find Screw You Guys, I'm Going Home. Look to the left and you'll see a button that says, "Vote Now." Click it. You're done. The polls shut down at close of business this Friday, Dec. 20. If you have trouble voting or questions about anything else, please see the ABA's Blawg 100 FAQ.

Don't Forget About Religious Discrimination When Throwing Your Office Halloween Party

Personally, I love Halloween. Adore it. I have zombies in my courtyard to scare the kiddies, and a graveyard in front of the house with various and sundry body parts poking out. Yes, Halloween is great fun for those who celebrate it. However, there are some religions that ban celebrating Halloween altogether, and some people who have sincerely held beliefs against it.

Halloween is now a pretty secular holiday, but its origins are in the Catholic religion. The Catholic holiday, All Hallow's Eve, is the night before All Saint's Day. I'm not an expert, but I believe the idea was that souls were liberated from Purgatory on that day, so celebrants would pray for the souls of the dead and hold a vigil during the night. The tradition of going door to door came from the UK, when beggars would ask for a "soul cake" in exchange for offering a prayer for the soul of the dead of the household. Earlier Pagans also had a fall holiday featuring bonfires and feasts, called Samhain, that probably influenced the Catholic celebrations, particularly in the UK.

Here are just some of the religions that don't celebrate Halloween:

• Jehovah's Witnesses: They don't celebrate any holidays or even birthdays.
• Some Christians: Some believe the holiday is associated with Satanism or Paganism, so are against celebrating it.
• Orthodox Jews: They don't celebrate Halloween due to its origins as a Christian holiday. Other Jews may or may not celebrate.
• Muslims: Many Muslims don't celebrate Halloween, again due to its origins in other religions.

I'm sure there are others. In researching this article, I came upon this telling comment about people who can't/won't celebrate Halloween: "I hate debbie downers who don't celebrate holidays, seriously they don't have to stand for anything, they're just fun." When you're dealing with Halloween at work, many celebrants treat those who have religious objections as "debbie downers," party poopers who just don't want to have fun. Even worse, I've seen situations where employees were ordered to decorate desks and come in costumes because the workplace had contests for best decorated departments. When they refused, they were criticized and threatened as not being "team players."

So, I wanted to issue this reminder to all workplaces celebrating Halloween: don't force anyone to celebrate, decorate, or dress for Halloween. Don't harass them if they don't want to participate. If someone has a sincerely-held belief, then it's likely protected by Title VII's prohibition against religious discrimination. It doesn't matter if you agree with them, think they're mistaken, or even think their beliefs are stupid. What matters is respect for the beliefs of the person holding them.

HR folks might want to give themselves a refresher on religious discrimination and harassment before the company's Halloween celebration, so they can be ready when things go awry.

Weird Or Not, Beliefs Are Protected Religion

A recent case where a vegan claimed she was protected from religious discrimination has caused some wailing and gnashing of teeth on the management side of my profession. The court said this about her claims:

[I]t is plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.... Accordingly, at this early stage of the litigation, the Court finds it inappropriate to dismiss Plaintiff's claims for religious discrimination based on her adherence to veganism.

I, on the other hand, was not surprised. Indeed, I predicted this in my book, Stand Up For Yourself Without Getting Fired:

Sincerely held beliefs: You don’t need to be part of an organized religion to be protected against religious discrimination. Atheists are protected. So are “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” It doesn’t matter that the beliefs are illogical or even that they aren’t held by many people. For instance, a person who practices veganism for moral reasons may be protected against religious discrimination, where a person who practices veganism for health or environmental reasons may not be protected.

It doesn't matter if you agree with the religious belief or think it's weird. Whether you dislike dreadlocks, you must respect a Rastafarian's right to wear them. Do you think a Jehovah's Witness ought to be a good sport and participate in birthday celebrations? Stop pushing. You can't do it. Think a Sikh's long hair should be cut? It doesn't matter what you think. It matters what the person who holds the belief thinks. If their belief is sincerely held, you must respect it in the workplace. No mocking or harassment allowed.

What about atheists? They don't have a religion, do they? Wrong. Atheists are one of the most maligned groups in our society, right up there with the overweight. Politicians openly blame them for tragedies that have nothing to do with them. Some openly call them evil or immoral. There are even state laws that openly discriminate against atheists. However, their sincerely held beliefs are protected under Title VII's religious discrimination provisions. That means an atheist must be excused from prayer services and other religious displays at work. You can't refuse to hire them because you assume all atheists are unethical (as my daughter's teacher announced in class the other day) or because they don't attend your church.

If you think about it, even mainstream religions have some practices that may seem weird to outsiders. Catholics engage in ritual cannibalism when they do communion. The Bible that most Christian and Jewish believers follow says offenses like adultery, not honoring the sabbath, and being a bad son are subject to mandatory death penalty.

So who's to say what's weird or whose beliefs are silly? To an atheist, a religious practice might be superstition. To others, it might be blasphemy. To some, it may be their most sincerely held belief.

Hindu, Muslim, Scientologist, Seventh-Day Adventist, Pagan, Wiccan, Satanist, and believers in Greek Mythology are all protected under Title VII.

So let's stop judging each other's beliefs and get back to work.

No Flu Shot? That's a Firing

Did you hear the latest story about 150 people fired for not getting a flu shot? That's right. An employer fired 150 healthcare workers the day before Thanksgiving (doesn't this story keep getting better?) because they mandated each and every employee get a flu shot and these 150 folks didn't do it.

I can't think of anything much more intrusive than requiring an employee to insert something unwillingly into their bloodstream, but there is a growing trend in the healthcare industry to do just that.

Sue the bastards, you say? Hmm. I'm not so sure they would win. In general, requiring vaccines of health care workers is legal, and in some states it is required. Some legal ways employees might get out of having the vaccine:

Collective bargaining agreements: vaccinations are definitely considered a “term or condition of employment” that must be bargained for if the workplace is unionized. Employers can commit an unfair labor practice if they impose them unilaterally in a unionized workplace.

Religious accommodations: protections against religious discrimination include any sincerely held religious or spiritual belief. EEOC recently issued an informal discussion letter on this topic. They offer this advice on whether a practice or belief is “religious” such that it is covered by discrimination laws: “Therefore, whether a practice is religious depends on the employee's motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.). Applying these principles, absent undue hardship, religious accommodation could apply to an applicant or employee with a sincerely held religious belief against vaccination who sought to be excused from the requirement as an accommodation. At the same time, it is unlikely that "religious" beliefs would be held to incorporate secular philosophical opposition to vaccination.”

Disability accommodations: EEOC says that mandatory vaccinations must still accommodate disabilities. They’ve issued a fact sheet on pandemic preparation. Their fact sheet includes this information:

13. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Pregnancy: If vaccinations are contra-indicated due to pregnancy, then the employer must accommodate the pregnancy the same as they would any other medical condition. In the informal discussion letter I mention above, EEOC says this about pregnancy: “In the scenario you pose, a pregnant employee might allege disparate treatment under the PDA and/or Title VII if an employer refused to excuse the pregnant employee from a vaccination requirement but permitted non-pregnant or male employees to be excused from the requirement on other grounds, such as having a medical condition that was a contra-indicator for the vaccination.”

Lots of people think this kind of intrusion is outrageous. I'm not sure where those folks were when their states passed laws mandating vaccines.

So what do you think? Should a private employer be allowed to require employees to have vaccinations? If so, what's next? Can they do a cavity search for drugs and office supplies? Require you to have a vasectomy? Where does it end? When does Congress step in? My guess is that employer intrusions will only get worse for employees, and that Congress will do nothing about it for years to come.

Orange-Americans Unite: Stand Up For Yourselves!

           Did you hear the one about the 14 employees who were fired for wearing orange shirts? If you didn’t, you don’t live in the UK or Ghana or anywhere in the U.S., because the story made the international news. I think the story hit a chord with people everywhere because it was just so outrageous. You come into work one day, the boss is in a bad mood and fires you because she didn’t like your shirt that day.

            Management said they believed the shirts were a protest over working conditions, so they fired the employees involved. Some of the employees were quoted saying they didn’t intend to protest.

            What I thought was really interesting were the lawyers quoted who said, because Florida is an at-will state,  the employees could be fired for any reason. That's true some of the time. As I say in my upcoming book, employers can fire you because they didn't like your shoes that day. However I don’t agree with the assessment that these employees have no legal protection. Employees do have rights, even when they wear orange.

            I should confess at this point that I represent a group of the Orange-American employees who were fired. I won't go into all the underlying facts at this point. Let’s just say there’s more to the story.

            What I will do is discuss generally some circumstances where even Florida employees can’t be fired because their boss didn’t like their shirts:

            Religion: If the clothing has religious significance, the employer can’t fire employees for wearing it unless it can show serious concerns such as safety or security. Orange is a key color for the Protestant religion, so if the color was worn for religious reasons, firing because of wearing the shirts would be religious discrimination.

            Disability: If the clothing or color was worn due to a disability, such as a spine-adjusting device, then the employer would have to accommodate the disability unless it could show an undue hardship.

            Discrimination: If not all employees were fired for wearing orange, and the employees not fired were of a different race, age, sex, religion, national origin, etc. than the people fired, it could be discrimination.

            Concerted activity: The National Labor Relations Act (NLRA), which applies to most workplaces, not just unionized ones, says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Even if an employee didn’t engage in concerted activity, they are protected under the NLRA. An employer who fires them for suspicion of engaging in concerted activity is in violation of the law. The NLRB said in one case: “The discharge of 4 employees . . .because of [the employer’s] belief, albeit mistaken, that the[y] had engaged in protected concerted activities is an unfair labor practice which goes to the very heart of the Act”

            There have been lots of cases where firing employees because management didn’t like their shirt were found to be unlawful: where AT&T workers wore shirts that said “Inmate #” on the front and on the back said “Prisoner of AT$T”; where employees wore shirts protesting the use of retirees to bust unions and some employees wore shirts saying, “Union ‘til I retire, then scab in!” and “When I retire I will not scab. I will go fishing”; where employees wore shirts with the employer’s logo, cracked, saying, “I survived the Midstate Strike of 1971-1975-1979”; and many more. In each case, the employees’ shirts were concerted activity protected under the NLRA.

            I won’t comment on which of these circumstances apply to my Orange-American clients’ cases – at least, not yet. But I will say this: it could happen to you. We’re all Orange-Americans. Every American who works for a living and can be fired, from the janitor to the CEO. Every American who thinks our jobs shouldn’t be yanked away without good reason. Every American who wants to complain about working conditions but is afraid. Every American who can lose not only their jobs, but their health insurance, for any reason or no reason at all. Every American who can be fired for wearing a color their boss doesn’t like, and can then be told they aren’t allowed to work in their chosen profession for a year or two.

            American workers do have rights, even in Florida; you just don’t have many. But you do have some rights, if only you know how to exercise them. You also have the right to vote, and to petition your representatives to change the law. In this economy, shouldn’t an employer have more reason than an intense dislike of the color orange to fire you?

            Orange-Americans unite: stand up for yourselves!