Homophobic Behavior in the Workplace Not Protected By Freedom of Religion

Seldom do employee-side lawyers cheer a ruling for the employer, but the Ninth Circuit decision holding that homophobic behavior in the workplace is not justified by an employee’s right to religious freedom was correctly decided and is good for employees.

In Flanagan v. City of Richmond (Ninth Circuit June 19, 2017) No. 15-17258, Ms. Flanagan claimed she was fired for her religious disapproval of homosexuality.  The record reflected that she manifested this intolerance by, for example, forbidding a lesbian intern from entering the workplace, leaving her stranded in the waiting room and declaring that she wouldn’t be going to heaven.

The court observed that although Flanagan’s religious speech may have touched on a matter of public concern her free speech, when balanced against the “… interest in maintaining a discrimination – and harassment – free environment” must fail.

This certainly isn’t the first time the courts have balanced competing rights in the workplace. In this balancing act, the court came out on the right side, in the favor of a discrimination and harassment-free workplace over religious speech or conduct, just like the California Supreme Court did way back in 1999 in the case of Aguilar v. Avis Car Rental (1999) 21 Cal.4th 121, where the court upheld an injunction against racial epithets over a competing claim of free speech.

In these current times, it is important that the court system protect employees against any kind of hate speech, whether in the guise of freedom of religion or speech. This, although a loss for the particular employee plaintiff in the instant case, is a victory for employees as a whole.

Jody LeWitter