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Seventh Circuit Backs Walmart Firing of Anti-Gay Religious Employee

October 2011

By: Nancy E. Joerg, Esq.

On March 31, 2011, the Seventh Circuit Court of Appeals [in an unpublished Opinion (No. 10-2242)] ruled in favor of defendant Walmart and found no evidence of religious discrimination.

By way of background, in September 2005, Tanisha Matthews (an overnight stocker at Walmart for nine years) became involved in a heated discussion about God and homosexuality with a lesbian co-worker, named Amy, during a break. When Walmart officials later investigated the incident, they learned that Ms. Matthews screamed at Amy that God does not accept gays, that gays should not "be on earth," and that they will "go to hell" because they are not "right in the head."

After the three-month investigation of the incident by Walmart, Walmart fired Ms. Matthews for violating Walmart's Discrimination and Harassment Prevention policy. This policy clearly prohibits Walmart employees from harassment based on an individual's status, including sexual orientation.

Upon being fired, Tanisha Matthews sued Walmart under the civil rights laws, arguing that Walmart fired her for stating her sincere religious belief that gays will go to hell, which she maintained is central to her Apostolic-Christian faith. The trial court granted summary judgment to Walmart, finding no evidence for the religious discrimination claim.

Next, Tanisha Matthews brought her religious discrimination case to the Seventh Circuit Court of Appeals. However, Ms. Matthews did no better on appeal.

The Seventh Circuit Court of Appeals affirmed the trial court's decision, noting the following:

"Walmart fired [Matthews] because she violated the company policy when she harassed a coworker, not because of her beliefs, and employers need not relieve workers from complying with neutral workplace rules as a religious accommodation if it would create an undue hardship. In this case, such an accommodation could place Walmart on the 'razor's edge' of liability by exposing it to claims of permitting workplace harassment."

Clearly, Tanisha Matthews believed that she had a religious duty to scream anti-gay epithets at her Walmart coworkers. Tanisha Matthews believed and unsuccessfully argued that Walmart must permit her to admonish gays at work to accommodate her religion.

The bottom line in this case is that the Seventh Circuit decided that Ms. Matthews' right to exercise her religious freedom at work did not permit her to harass gay people. Walmart fired Ms. Matthews "because she violated company policy when she harassed a co-worker, not because of her beliefs," the Seventh Circuit ruled. Even though Ms. Matthews' anti-gay harassment was religious-inspired, Walmart did not violate Ms. Matthews' civil rights when it fired her.

This case stands for the common sense principle that the Civil Rights Act does not protect religious-based bigotry in the workplace. Walmart fired Tanisha Matthews because she violated company policy when she harassed a co-worker, not because of her religious beliefs.

Anti-gay remarks by employees professing religious beliefs are not part of religious accommodation in the workplace.

Congress adopted Title VII of the Civil Rights Act in 1964. Title VII makes it unlawful for an employer to discriminate against an applicant/employee with respect to hiring, firing, promotion, or any other terms or conditions of employment based on that employee's race, color, religion, sex or national origin.

In addition to this prohibition against religious discrimination, employers are affirmatively required by state and federal law to reasonably accommodate employees' religious observances and practices unless such accommodation causes undue hardship to the employer. Courts have ruled that a proposed accommodation of a religious belief is an undue hardship if it imposes more than a de minimis cost on the employer. The EEOC has stated that an employer can show undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes coworkers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.

In this case brought by Tanisha Matthews, Walmart's anti-harassment policies trumped her religious speech. This Seventh Circuit decision is a message to all employees that if their employer wishes to bar anti-gay sentiments expressed in the workplace; the employer can establish policies and fire violators-even if the anti-gay rhetoric is based on sincerely held religious beliefs.

An interesting side note: Tanisha Matthews also relied on a decision by the Illinois Department of Employment Security, finding that the misconduct that led to her termination was not severe enough to bar her from receiving unemployment benefits. However, the Seventh Circuit found that the unemployment insurance decision was irrelevant because it was based on a different definition of misconduct used only for employment-benefits decisions.

Questions? Call Attorney Nancy E. Joerg of Wessels Sherman's St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com. Nancy Joerg is a managing shareholder of Wessels Sherman - a management-side labor and employment law firm.