Second Circuit Rejects Claim of Employee Fired for Refusing to Attend Training Session on LGBTQ Bias
The U.S. Court of Appeals for the Second Circuit has rejected an employee’s claim that he was unlawfully discriminated against based on religion after he refused to attend mandatory LGBTQ anti-discrimination trainings. In Zdunski v. Erie 2-Chautauqua-Cattaraugus BOCES, No. 22-547 (2d Cir. Mar. 13, 2023), the plaintiff sued his former employer, a public organization that provides educational programs and services to school districts, after he was terminated from employment. The district court dismissed his case, finding that the termination was not because of religion but for repeatedly refusing to attend mandatory employee training. The Second Circuit has now weighed in with a summary order affirming the lower court’s decision.
The plaintiff worked for seven years as an account clerk for the employer before his 2018 termination. After the employer learned that a transgender employee had requested accommodations to facilitate a gender transition, the employer decided that LGBTQ anti-discrimination training was necessary to “maintain an environment free of harassment and discrimination.” As a public school in New York State, the employer was subject to the State’s Dignity for All Students Act (DASA), which is meant to “provide the State’s public elementary and secondary school students with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus and/or at a school function.”1 The LGBTQ training was a supplement to the mandatory DASA anti-discrimination training all of the employer’s employees are required to undertake as a condition of their employment.
Employees were directed to attend the mandatory training on “LGBTQ Cultural Competency” in February 2018. The plaintiff notified his supervisor that he would not be attending the training, citing his religious beliefs as a “devout Christian.” He said his beliefs regarding homosexuality were “dictated to him by holy scripture” and that he “did not want to be forced to listen to indoctrination that is in contradiction to the tenets of his faith.” The plaintiff requested that the employer offer training to teach greater cultural sensitivity towards persons of faith. Around the same time, the plaintiff posted a public statement on his Facebook page during working hours that criticized the employer for conducting a mandatory “sensitivity training session on the LGBTQ community” and stated that he would not be “forced to condone this lifestyle.”
The plaintiff and others who missed the February training were notified via email that they were required to attend a make-up training session in May 2018. The plaintiff replied asking what the objectives of the training were. He was informed by the Executive Director of Human Resources the training would cover “[r]ecognizing the difference between sex & gender, understanding aspects of identity, understanding how beliefs/feelings/values perpetuate oppression” and that his failure to attend the meeting would result in disciplinary action. The plaintiff once again requested that the employer provide a similar training aimed at countering discrimination against Christians. Notably, while the plaintiff appeared to allude to concerns about workplace discrimination against Christians in this email, he never lodged a formal complaint alleging such religious discrimination.
During a May 21, 2018 meeting, the plaintiff was issued a “counseling memo” for insubordination and directed to attend the LGBTQ training the following day or face discipline up to and including termination. The plaintiff did not attend the training as directed, and was terminated for insubordination as a result.
After his termination, the plaintiff filed a complaint with the New York State Division of Human Rights alleging unlawful discrimination, which was dismissed for no probable cause. The U.S. Equal Employment Opportunity Commission adopted the findings of the State Division of Human Rights and likewise dismissed the complaint. The plaintiff filed suit in district court, alleging that the LGBTQ training was “aimed at changing his religious beliefs about gender and sexuality,” and that attending the training “would have caused him to violate the religious teachings to which he adheres.” The plaintiff sought reinstatement, back pay and $10 million in damages.
The district court granted summary judgment in favor of the employer in February 2022, holding that the plaintiff’s “unsupported assumption that Defendants believe him to be ‘bigoted’ due to his religious beliefs is insufficient to support an inference of discrimination,” and that “no facts in the record support[ed] a finding that [the plaintiff] was terminated because of his religion; rather, the evidence in the record support[ed] Defendants’ position that his termination was due to repeatedly refusing to attend a mandatory employee training.”
Notably, the district court judge found that the plaintiff failed to present any evidence that the trainings were directed toward him or other Christian employees in a discriminatory manner, especially when the trainings were set in motion “more than four months” before the plaintiff informed his employer that he was personally opposed to the subject of the training. The court also noted that the plaintiff did not present any evidence of discriminatory intent or malice, nor any evidence that he was treated differently from other employees who refused to attend anti-discrimination trainings. He likewise did not present any evidence that any employees criticized his job performance in degrading terms related to religion, or that they directed “invidious religion-related comments” to him or to other Christian employees.
On appeal, the Second Circuit agreed, finding that the plaintiff had failed to provide “sufficient evidence” to support his claims.
We have recently seen an uptick in cases addressing the delicate balance between a company’s anti-discrimination measures or policies and religious freedoms among workers, even in situations where those policies or measures are mandated by law. Indeed, here the employer was bound by New York State law to provide annual anti-discrimination trainings for all employees and to maintain “an environment free of discrimination and harassment.” Thus, the court opined that the plaintiff’s requested accommodation to forego anti-discrimination trainings would have put the employer in the position of violating the training requirements set forth in DASA. The employer was therefore not required to accommodate him, and lawfully terminated him for his repeated refusal to attend the training.
Notably, the plaintiff’s arguments in this case are becoming more prevalent as employers across the country choose to institute inclusion, equity and diversity (IE&D) measures. Most workforces encompass a wide range of different religions, which can sometimes result in unintended conflicts with a company’s IE&D initiatives. With these efforts come related complications, including whether or not an employer needs to provide a reasonable religious accommodation to employees citing religious beliefs as a reason for not conforming to company policy. Indeed, the issue of an employer’s duty to provide an employee with a reasonable accommodation for religious reasons is currently before the U.S. Supreme Court. The case is Groff v. DeJoy, and oral argument is scheduled for April 18. The decision in that case could give employees seeking religious accommodations more leverage by changing the current test for what constitutes an “undue burden” on employers and co-workers.
It will be interesting to see whether judicial decisions like this will interact with laws creating rights not to attend employer-sponsored meetings that have recently been passed or introduced in several states. For example, Connecticut enacted a law last year that imposes liability on employers that violate an employee’s constitutional rights, including subjecting or threatening to subject employees to discipline and discharge for refusing to attend an employer-sponsored meeting or to listen to or view employer communications, if the primary purpose of that employer speech is to “communicate the employer’s opinion on religious or political matters.”
Workplace policies that are enforced consistently and in a non-discriminatory manner often pass muster when challenged by a disgruntled employee. As employee requests to be relieved of training requirements increase, however, employers should consider consulting with employment counsel when faced with questions or employee challenges arising out of mandated workplace policies or IE&D initiatives.
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