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‘Gaining My Religion’: U.S. Courts Could Give Lifestyle Choices Saintly Status

If federal courts did expand their definition of protected religious practice in the workplace, this would lead to a quandary for many employers. After all, state and federal laws on the subject can be substantially different.

May 2, 2013

What if Americans’ views on the likes of animal rights, diet, vaccines or the environment were granted protected status alongside traditional faiths such as Christianity, Islam or Buddhism?

While this might sound farfetched, a federal judge has ruled that veganism could indeed be thought of as a religious practice worthy of some amount of workplace protection. Could other ideological frameworks be afforded similar deference? How might this affect the playbook for HR?

The case in question centers on the beliefs of a former employee at a Cincinnati children’s hospital who objected to an employer-mandated flu shot because, as a vegan, she believed it would be wrong to benefit from a vaccine cultivated from chicken eggs. The hospital fired her in December 2010, and she sued.

Subsequently, in response to a motion to dismiss the case, the U.S. District Court issued a preliminary ruling that veganism may constitute a religion or protected religious practice under federal law. The assertion could have a broad impact if allowed to stand; it could therefore end up in the U.S. Court of Appeals.

If the federal courts do expand their definition of protected religious practice in the workplace, this would lead to a quandary for many employers. After all, state and federal laws on the subject can be substantially different.

The federal definition of religion has a subjective component, but the law in California, for instance, requires objective signs of traditional faith such as sacred books, symbols, services and sacraments. A California appellate court ruled in 2003 that veganism does not constitute a protected religion in the state. And yet California is among those states in which employees can look to either federal or state law for the definition of their rights. Thus a California employer would have to carefully consider the federal position as well.

Regardless, the broader issue—how to handle deeply felt beliefs that do not necessarily qualify as ancient creeds—seems here to stay. In 2010, vegans rallied to the defense of convict Paul Cortez after he demanded to be served vegan fare in prison. In 2005, an atheist inmate said jailers had violated his “religion” by not allowing him to form an atheist discussion group (a federal court agreed). And while some Rastafarians see their movement as a religion—even calling marijuana a protected sacrament—others regard Rastafarianism as a mere lifestyle choice.

Many other scenarios are possible. An animal lover might ask the company to cancel a team-building trip to a circus that uses trained elephants and lions. A navel-gazing office worker might want the company to set aside a spare room for voluntary sessions of “secular, nonsectarian meditation.” Or an employee who believes “sitting too much is lethal” might insist on having a treadmill desk, along with “walking meetings” in which people circle the building instead of huddling at a table.

In 2013 it is clear that, culturally, the U.S. is moving toward greater sensitivity. Even in the absence of laws codifying sensitive behavior, employers ought to consider embracing policies and procedures that offer reasonable accommodation for peoples’ deeply held beliefs—religious or otherwise.

The team-building event could take place at a baseball game. Letting people “de-stress” in a spare room would be similarly painless. Other decisions might be tougher, but workable. The noise from a treadmill desk could be disruptive to others. Would a stand-up desk do instead?

Such flexibility can pay dividends—in the form of higher morale (just look at Google Inc.’s high marks for this kind of thing) and general avoidance of unnecessary embarrassments (“ACME Employees Demand Tofu in Cafeteria Protest”), which can spread quickly in the age of Facebook and Twitter.

Brian Inamine is a Los Angeles-based labor and employment attorney and a shareholder in the national law firm LeClairRyan. He can be reached at brian.inamine@leclairryan.com. Comment below or email editors@workforce.com.