Thursday, January 30, 2020

Does Title VII protect “veganism” as a religion?

A judge in the United Kingdom has ruled that “ethical veganism” is a protected class akin to religion and is protected from workplace discrimination. The Washington Post shares the details:

An employment tribunal made that landmark determination in a case involving a man who claimed he was fired from his job at an animal rights organization for revealing to colleagues that their pension funds were invested in companies that experiment on animals. The tribunal has yet to rule on the merits of the case, but it did on Friday take the step of deciding that the man’s ethical veganism constitutes a “philosophical and religious belief” protected by anti-discrimination law.

That’s the United Kingdom. What about the United States? Well, it depends.

There are two leading cases on this issue.

In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 2012), the federal court denied the hospital’s motion to dismiss the employee’s religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira—a customer service representative who refused a flu vaccine because it contained animal by-products—cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation. In denying the motion to dismiss, the court stated:

The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.

Contrarily, in Friedman v. Southern California Permanente Medical Group (Cal. Ct. App. 2002), the state appellate court dismissed the religious discrimination claims of a vegan IT worker who refused a mumps vaccine for similar reasons as Chenzira. He claimed the vaccine “would violate his system of beliefs and would be considered immoral by him,” which resulted in the withdrawal of his employment offer. The court concluded that veganism is not a protected religion:

We do not question plaintiff’s allegation that his beliefs are sincerely held; it is presumed as a matter of law that they are.… There is no allegation or judicially noticeable evidence plaintiffs belief system addresses fundamental or ultimate questions. There is no claim that veganism speaks to: the meaning of human existence; the purpose of life; theories of humankind’s nature or its place in the universe; matters of human life and death; or the exercise of faith. There is no apparent spiritual or otherworldly component to plaintiffs beliefs. Rather, plaintiff alleges a moral and ethical creed limited to the single subject of highly valuing animal life and ordering one’s life based on that perspective. While veganism compels plaintiff to live in accord with strict dictates of behavior, it reflects a moral and secular, rather than religious, philosophy.

In other words, while his beliefs are sincerely held, they are moral beliefs, and therefore secular and not religious.

To answer my question on how U.S. courts would view this issue, it depends on the jurisdiction in which your business is located, and perhaps, whether the employee’s beliefs are grounded in spiritualism or personal morals.

These cases also raise a more fundamental question—how far should businesses go to accommodate employees’ requests for special treatment. To me, sometimes, the path of least resistance makes the most sense.

For a hospital, there may not be a path of least resistance when comes to public health issues such as vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.

For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Possibly. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Likely.

In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How you incorporate those other factors into your accommodation decision-making is often more important than simply answering the underlying legal question.