Recently, the news has been filled with employees who refuse to perform their duties based on political, moral, or religious beliefs. Kentucky clerk Kim Davis was jailed for refusing to issue marriage licenses to same sex couples following the ruling by the Supreme Court. Here in Texas, a Whataburger employee refused to serve police officers after publicized reports of a shooting. A similar incident was reported at an Arby’s restaurant in Florida. These cases raise the question – what should an employer do when an employee refuses to perform their job? Can the employee sue for wrongful termination if he or she is discharged?
First, it is worth noting that Kim Davis, the Kentucky clerk, is not an employee, she is an elected official. Elected officials generally cannot be terminated and serve at the will of the electorate. The focus of this blog posting is on employees. For example, what if your business employs a “Black Lives Matter” activist who refuses to serve a customer? What if a Christian employee refuses to serve a same sex couple visiting your business?
In both the Whataburger and Arby’s cases, the employees were terminated for refusing to serve police officers. Political expression is not protected in the private sector and employees do not have a right to engage in either free speech or activism in their jobs. Generally, employees who use their positions to make political statements with which the business disagrees can be discharged. Similarly, an employee who violates a company policy or local, state or federal law requiring service of all customers without regard to race, religion, or other classification, can be lawfully discharged.
There are two important potential exceptions. First, employees have a right to request a reasonable accommodation for religious beliefs. The employer has a duty to make a reasonable accommodation for religious objections to performing duties. What is “reasonable” depends on the circumstances, and the law does not require an employer to fundamentally transform a job or relieve an employee of performing essential duties. This issue is being litigated across the country as several non-elected officials (unlike Kim Davis who is elected) have been terminated for refusing to issue marriage licenses to same sex couples. There has also been much litigation over pharmacists refusing to issue birth control pills because of religious beliefs, and most states protect such refusals as long as another pharmacist is present and can administer the medication.
In Texas, employees are also protected from termination for refusing to perform an illegal act. For example, an employee who refuses to dump hazardous chemicals into a river, or engage in questionable accounting practices, is protected from adverse action. Given the over-legalization of society in general, and the workplace specifically, it is not hard for a creative lawyer to cast an objecting employee as refusing to engage in illegality.
The takeaway from these recent news stories is that employees making political statements generally act at their own peril and can be lawfully terminated. That said, employers should be careful and make sure that the conscientious objector is not protected , for example if the objection is based on a religious belief or a refusal to break the law. In such cases, employers should seek out legal advice.