5th Circuit Decision: Pro-Employer or Anti-Religion?

I don’t think anyone would fault the way Kelsey Nobach handled the unusual request she received at work on September 19, 2009. Nobach, a nursing home employee, was advised by a non-supervisory CNA (certified nursing assistant), that a resident was asking that someone read the Rosary to her. Nobach, who is a Jehovah’s Witness, stated that she could not read the Rosary due to her religion, but she did not identify her religion. The resident complained, and Nobach’s employer terminated her employment without questioning Nobach as to her reasons.   During the termination meeting, a supervisor advised Nobach that she was being terminated for refusing to read the rosary to a patient.   Nobach responded, “Well, I can’t pray the Rosary.  It’s against my religion.”    To which the supervisor replied, “I don’t care if it is against your religion or not.   If you don’t do it, it’s insubordination.”

Nobach filed suit alleging religious discrimination, and a Mississippi jury found in her favor.   On appeal, the employer argued that it could not have discriminated based on religion because Nobach never informed them about her religion or religious beliefs prior to her termination.   The Fifth Circuit Court of Appeals agreed and reversed the trial court’s judgment.   Norbach v. Woodlands Village Nursing Center, Inc.

There are certain activities that are inherently religious.    Asking an employee to pray the Bible, the Koran, or in this case a Rosary, clearly falls in that category.   A worker should not face discipline or job loss for refusing to perform an inherently religious act that is not part of his or her job duties.    Equally, no employer should be able to skirt religious anti-discrimination laws by asserting that they were not aware of a worker’s specific religion.

The U.S. Supreme Court recently rejected this “ignorance of religion” defense in EEOC v. Abercrombie & Fitch Stores, Inc., in which the employer denied having actual knowledge that an applicant, who wore a hijab, or headscarf, was Muslim.   In that opinion, the court made it clear that a plaintiff did not have to prove that an employer had actual knowledge of the plaintiff’s religion or beliefs to be covered under Title VII’s religious accommodation protections.    Does this rationale extend to employers who lacked actual knowledge of a worker’s religion, but discipline or terminate the worker for refusing to perform an inherently religious act?    The Fifth Circuit has said no.   This is a bothersome opinion for those who are advocates for workers’ rights, as well as advocates for religious freedoms.  We will have to wait and see if the U.S. Supreme Court will be willing to weigh in on this decision.

“Religion is like a pair of shoes…..Find one that fits for you, but don’t make me wear your shoes.”

– George Carlin

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John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.