What should an employer do if an employee says anti-bias training clashes with their religious beliefs?
A new federal appeals court ruling backed an employer’s decision to terminate an employee who presented that objection and refused to attend the training.
The employee did not show the termination decision was unlawfully discriminatory, the court said, and accommodating the employee’s request to be excused from the training would have resulted in an undue hardship on the employer’s business operations.
Raymond Zdunski began working as an account clerk in the Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services (BOCES) in 2011.
BOCES is a public education collaborative and is an extension of local school districts.
BOCES policy requires all employees to complete anti-bias training “to raise staff awareness and sensitivity of harassment and discrimination.”
After a transgender employee asked for accommodations to facilitate a gender transition, BOCES decided to add specific LGBTQ training.
Anti-bias training is mandated
The training supplemented anti-bias training that is mandated by a New York state law known as the Dignity for All Students Act.
In February of 2018, BOCES told Zdunski to attend a mandatory training session on LGBTQ rights.
Zdunski refused to go, explaining that he is a devout Christian and that “he did not want to be forced to listen to indoctrination that is in contradiction to the tenets of his faith.”
He also asked BOCES to provide training that would “teach greater cultural sensitivity towards persons of faith.”
Zdunski also criticized the LGBTQ training on Facebook, and he made the post during work hours. BOCES’ HR director documented that action due to concerns that it violated a policy banning employees from posting material that might disrupt classroom or other BOCES activities.
When BOCES told Zdunski to attend a make-up training session, he asked about its specific objectives and again requested the provision of training designed to prevent discrimination against Christian employees. The HR manager told him he needed to attend the make-up session, and that he could be terminated if he missed it.
Was it insubordination?
BOCES issued Zdunski a counseling memo for insubordination, and he did not attend the make-up session. BOCES then terminated his employment for insubordination based on his refusal to attend.
He sued, alleging religious discrimination and refusal to accommodate under Title VII. He further asserted due process and equal protection violations as well as conspiracy and violation of state law.
The trial court granted a defense motion for summary judgment.
As to Zdunski’s claim of disparate treatment, the court ruled that he did not show that the circumstances surrounding his discharge permitted an inference of religious discrimination.
None of the alleged facts supported the claim that the termination was tainted by an inference of unlawful bias, the court said. Instead, the alleged facts showed that Zdunski was terminated because he would not comply with BOCES policy that mandated anti-discrimination training.
There was no allegation that the training would have been conducted in a malicious or discriminatory way, or that it would have subjected Zdunski to harassment or ridicule.
Instead, the training sought to prevent harassment and discrimination toward transgender employees, and it was consistent with internal policy as well as state and federal law.
There was simply no evidence that the training was directed toward Zdunski or other Christian employees in a discriminatory manner, the court said.
Nor did Zdunski show he was treated differently than other employees who refused to attend anti-discrimination training, the court added.
No evidence of bias
In a nutshell, there were just no facts to support a finding that Zdunski was terminated based on his religion, it said.
“[I]t would be anomalous to allow an employer to deny a transgender employee’s legal right to a workplace free of discrimination and harassment in order to accommodate the conflicting religious beliefs of other employees,” the court explained.
BOCES was not required to grant Zdunski’s request to be excused as a religious accommodation because doing so would have resulted in an undue hardship, the court added. Granting the requested accommodation would have conflicted with BOCES’ legal obligation to protect its employees from harassment and discrimination, the court reasoned.
BOCES is required by state law to provide anti-discrimination training annually and to maintain an environment free of discrimination and harassment, it noted.
The lower court ruled for BOCES, and the U.S. Court of Appeals for the Second Circuit summarily affirmed.
A rock and a hard place
When employees present religious objections to DEI training, employers are stuck in the middle. Title VII protects religious rights, but it also recognizes gender expression and sexual orientation as equally protected classes — as the lower court in this case noted.
So what are employers to do?
The law does not provide crystal-clear guidance. When the U.S. Supreme Court ruled in 2020 that Title VII’s ban on sex discrimination encompasses a ban on sexual expression and gender identity, it was also careful to note that it was “deeply concerned with preserving the promise of the free exercise of religion.” And it expressly declined to answer the question of how doctrines protecting religious liberty interact with Title VII.
The EEOC has indicated quite clearly that in its view, it would be an undue hardship for an employer to excuse attendance at sexual orientation discrimination training based on a religious belief, where the training is held to make sure employees are aware of applicable EEOC laws and workplace rules.
Here are some general tips employers can keep in mind:
- Where employers are legally obligated to provide anti-bias training, they will be more likely to show that an employee need not be excused from attending such training based on a religious objection.
- Ensure that no employee who does attend such training is harassed or ridiculed based on their religious beliefs.
- Do not segregate employees with respect to anti-bias training, such as by requiring only Christian employees to attend.
- Do not require employees to affirmatively support any particular gender identity or sexual orientation. Focus instead on what workplace conduct is required and prohibited by EEO laws.
- Remember that a general animus toward a protected class is not a form of religious expression that the law protects.
Zdunski v. Erie 2-Chautauqua-Cattaraugus BOCES, No. 22-547-cv, 2023 WL 2469827 (2d Cir. 3/13/23).