In February, we discussed a Federal District Court in Maryland which ordered a Catholic Hospital to perform a hysterectomy on a healthy woman for the purpose of gender reassignment. Ignoring the Hospital’s Catholic identity, US District Judge Deborah Chasanow held that even though St Joseph’s operated “in a manner consistent with Catholic values and principles,” the Hospital could not refuse to perform a hysterectomy on a women who identified as a man because the surgery “was meant to treat (the patient’s) gender dysphoria.”
Yet another District Court, this time in New York, has also refused to recognize traditional religious values and practice in order to provide superior rights to the transgendered.
Under Title VII of the Civil Rights Act of 1964, “It shall be an unlawful employment practice for an employer…to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s…religion…or…otherwise adversely affect his status as an employee, because of such individual’s…religion…”
Seems simple enough. You can’t discriminate against a person in the workplace based on their religious practices or beliefs.
There is also this explanation provided by the US Department of Labor; “Title VII requires federal agencies, upon notice of a request, to reasonably accommodate employees whose sincerely held religious beliefs, practices or observances conflict with work requirements, unless the accommodation would create an undue hardship…A religious accommodation is any adjustment to the work environment that will allow an employee or applicant to practice his or her religion. The need for religious accommodation may arise where an individual’s religious beliefs, observances or practices conflict with a specific task or requirement of the position… An agency may justify a refusal to accommodate an individual’s religious beliefs or practices if the agency can demonstrate that the accommodation would cause an undue hardship. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”
Again, simple enough. Unless it’s an “undue hardship,” you must reasonably accommodate a religious employee.
Unfortunately, someone needs to explain these simple rules to Federal District Judge Geoffrey Crawford of the Western District of New York and the Second Circuit Court of Appeals. In a decision from last February, Judge Crawford stood these rules on their head to deny an accommodation to a religious school board employee. In March of this year, the Second Circuit affirmed Judge Crawford’s opinion.
Raymond Zdunski served as an Account Clerk for the Erie 2- Chautauqua-Cattaraugus Board of Cooperative Educational Services in upstate New York. According to their website, The BOCES partners with local public school districts “to build and strengthen programs for students and maximize operational efficiencies through shared services.” Under the heading of “Equity, Inclusivity and Diversity,” the BOCES states that it “also continually strives to ensure that all students and employees have access to equal opportunities within a safe, inclusive, welcoming, and accepting environment. In order to achieve this goal, we will strive to sustain a culture of learning about the experiences and perspectives of those who are different from ourselves.”
To that end, the website for the BOCES provides a number of video tutorials, including “Are You Biased? I Am,” “Unconscious Bias at Work,” and “Color Blind or Color Brave,” where Finance Executive Mellody Hobson “discusses the reality of racial inequities in our society.” Then there is the always-popular “ABC’s of Creating the LGBTQ-Friendly Classroom,” in which “the National Association for Music Education provides simple strategies for creating affirming and welcoming environments for students who identify as a member of the LGBTQ community.”
The reader is encouraged to review these videos, and the website for the BOCES in general. We will return to this subject below.
According to Judge Crawford’s opinion, “(a)fter becoming aware that a transgender BOCES employee had requested accommodations to facilitate a gender transition, BOCES leadership decided that, in addition to providing gender-neutral bathrooms, LGBTQ anti-discrimination training was necessary to ‘maintain an environment free of harassment and discrimination.'” The BOCES mandated this training for all employees, and in 2018, Zdunski was “directed to attend a mandatory training facilitated by the local ‘Pride Center’ on ‘LGBTQ Cultural Competency.'” Zdunski refused.
The Court noted that Zdunski “declined to attend the training on the basis that ‘he is a devout Christian and, as such, his beliefs regarding homosexuality are dictated to him by holy scripture. Plaintiff did not want to be forced to listen to indoctrination that is in contradiction to the tenets of his faith.'”
There is no indication in Judge Crawford’s opinion that Zdunski was insincere in his beliefs, or that his religious practices were contrary to his stated beliefs. Nonetheless, the BOCES “terminated (Zdunski’s) employment for insubordination due to his failure to attend the LGBTQ anti- discrimination training.”
In his lawsuit, Zdunski argued 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.” Among his complaints, Zdunski asserted a “failure to accommodate under Title VII,” and “disparate treatment and disparate impact under Title VII.” The BOCES sought a dismissal of Zdunski’s case.
“Mr. Zdunski seeks a religious exemption from a policy that concerns trainings on gender expression,” Judge Crawford wrote. “Mr. Zdunski believes his compliance with the policy would render him complicit in conduct he considers contrary to his religious beliefs.” In summary, “(a)ccording to Mr. Zdunski, (BOCES’) decision to terminate his employment for refusing to attend (the LGBTQ awareness) training ‘amounts to unlawful religious discrimination’…(BOCES) maintain(s) that Mr. Zdunski was not terminated because of his religion; ‘he was terminated because he did not attend a mandatory training session.'”
In other words, Zdunski was fired because he did not attend the training session, because it was mandatory, irregardless of what Mr. Zdunski’s faith-based sentiments were regarding the topic of the training.
At this stage, it is useful to remember the video tutorials presented on the website for the BOCES, addressed above; the “ABC’s of Creating the LGBTQ-Friendly Classroom” for instance. Is such a video “training,” or actually “indoctrination?” What sort of program on “LGBTQ Cultural Competency” awaited Mr. Zdunski at the local “Pride Center?” Would Mr. Zdunski have been presented with discussions, images and materials that he might have found offensive to his Christian faith?
Let us consider this issue from another angle for a moment. Suppose Mr. Zdunski was a strictly observant Muslim. In the Muslim faith, “Islamic scholars overwhelmingly teach that same-gender sex is a sin.” Now let us suppose an observant Muslim were required to attend a training session in “LGBTQ Cultural Competency” at the local “Pride Center.” Would an observant Muslim also refuse to attend this “mandatory training,” on the basis that “compliance…would render him complicit in conduct he considers contrary to his religious beliefs.”
Unfortunately, for Zdunski, Judge Crawford did not consider any of these issues. Instead, the Court agreed with the circular logic of the BOCES. “(N)one of the facts alleged support (Zdunski’s) claim that his termination was tainted by an inference of unlawful discrimination. Rather…BOCES terminated Mr. Zdunski in response to his failure to comply with his employer’s policy mandating anti-discrimination training…the training sought to avoid harassment and discrimination directed at transgender employees consistent with…Federal Title VII law…”
“The fact remains that Mr. Zdunski was employed by a State agency in a State…that recognizes gender expression and sexual orientation as protected classes on equal footing with religion for purposes of Title VII,” Judge Crawford wrote. “Just as it would be ‘anomalous to conclude that by ‘reasonable accommodation’ Congress meant that an employer must deny the shift and job preference of some employees . . . in order to accommodate or prefer the religious needs of others,’ so too would it be anomalous to allow an employer to deny a transgender employee’s legal right to a workplace free of discrimination and harassment in order to accommodate the conflicting religious beliefs of other employees.”
Let us assume, for the sake of argument, that, “gender expression and sexual orientation” are on “equal footing” with religion under Title VII. Let us even assume that a “transgender employee” is entitled to a “workplace free of discrimination.” Though called “equal footing,” in fact Judge Crawford is assuming that it is more important that all employees of BOCES attend training for the benefit of that one transgender employee than that one other employee be allowed to assert a religious objection to that “training.”
Aren’t there other ways to insure that the single transgender employee does not suffer from discrimination from the single religious objector? The opinion does not note whether the transgender employee and Zdunski worked in the same area, or even in the same building. Was it really likely that Zdunski would engage in “workplace discrimination” if he did not attend the training – or was it more important that Zdunski be subjected to the propaganda approved for dissemination to all employees by the BOCES?
The Court went on to deny that Zdunski was entitled to any religious accommodation. “Mr. Zdunski’s proposed accommodation—that he be excused from the mandatory LGBTQ anti-discrimination training—amounts to more than a de minimis cost to his employer’s business operations. BOCES is 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.’ (Citation omitted.) Allowing Mr. Zdunski’s requested accommodation…would have put his employer in the position of violating the training requirements set forth (by New York State). An accommodation that would require an employer to run afoul of state law constitutes a substantial hardship and would be more than a de minimis cost to the employer.”
In other words, it was more important that all employees submit to anti-discrimination “training” for the benefit of one employee, than allow one employee to act according to his religious scruples.
A dangerous precedent is being set by the District Court in both New York and Maryland. Rather than accommodate those with traditional religious values and practices, Federal Courts are forcing compliance with an agenda that is incompatible to those who wish to maintain time-honored principles. Most disturbing, both the New York and Maryland decisions showed absolutely no respect for the beliefs and faith-based practices of either St Joseph’s Hospital or Raymond Zdunski.
It was more important to each Court that the dictates of the government be obeyed.
Judge John Wilson (ret.) served on the bench in NYC
llustration: Pixabay