We often talk about “workplace discrimination” as though the term represents one issue, when in fact it represents many big, often complex issues such as race, gender, sexual orientation and religion. Some of these issues can come into conflict with each other. This is increasingly true for protections against religious discrimination and protections against discrimination on the basis of sexual orientation.
What are the protected categories?
Certain types of workplace discrimination are prohibited under federal, state and local laws.
Colorado law prohibits employment discrimination on the basis of certain protected characteristics, including:
- Race or color
- Sex, gender identity, gender expression and sexual orientation
- Ancestry or national origin
- Marital status
Employers may not legally fire, decline to hire, decline to promote, harass or otherwise discriminate against a worker on the basis of a protected characteristic. Under Colorado’s “at-will” employment laws, an employer may fire an employee for poor performance, because the business needs to save money, or simply because the employer doesn’t like the employee’s sense of humor, but the employer cannot fire the employee because they are gay.
Religious freedom arguments
Many employers have taken this concept to heart and now require their employees to take sensitivity training so as to foster a workforce that is tolerant of diversity. However, this can sometimes come into conflict with some other important concepts. For example, some religious people claim that their beliefs require them to discriminate against LGBT people.
This argument has taken on weight in the wake of a recent Supreme Court decision that upheld a website designer’s argument that her religious beliefs should allow her to deny services to same-sex couples. In June, the Supreme Court held that Colorado’s anti-discrimination laws could not force the website designer to cater to these customers if doing so was against her religious beliefs.
A recent case from another state illustrates another way this type of argument might play out in employment law.
A public employee was ordered by his employer to attend anti-discrimination and anti-harassment training, as required by the laws of its state. The employee refused, telling his manager that this training contradicted his beliefs as a Christian. The employer ordered the worker to attend the meeting or face disciplinary action. After the employee failed to show up for the training, they were fired.
The worker filed a lawsuit against his former employer, alleging that his termination amounted to illegal religious discrimination. The court dismissed his claim, finding that he was fired not because of his religion, but because he refused to attend mandatory training. This spring, the appellate court upheld the dismissal.
It is unclear if the June Supreme Court decision would have changed that result.
The case illustrates some important points about employment law. One is that, while discrimination on the basis of religion is prohibited, that doesn’t necessarily mean that employees are free to use their religious beliefs as justification for not doing what their employers ask them to do. Another is that the law changes, and it can be difficult to see how the law may apply to the unique facts of any one case.