Religious freedom: Not just an issue for Hobby Lobby

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Elizabeth Newman
Elizabeth Newman

It's tough for nursing homes to attract good certified nursing assistants or aides. It's even harder when rumors abound about the mistreatment of those on the lower end of the power and pay scale. It's practically impossible when there is a belief a nursing home may punish those for sincerely held religious beliefs.

According to the Equal Employment Opportunity Commission, an Alabama nursing home did the latter when it fired a Muslim worker who wore a hijab, a religious head covering. There are many unanswered questions, as I could not reach administration at Shadescrest Health Care Center, or anyone at the Birmingham office of the Equal Employment Opportunity Commission (after waiting on hold with the latter for an hour).

So we'll go on what is alleged. According to the statement released by the EEOC, the center hired Tracy Martin as a CNA in August 2012. She showed up to work about a week later wearing the hijab and was told to remove it or be fired. Martin filed a charge with the EEOC, and was then fired.

Let us examine the many ways in which this apparently went wrong.

To start, employers should know that religious dress and grooming is covered under Title VII of the Civil Rights Act of 1964. Examples, as listed by the EEOC, include not only the hijab and a Sikh turban, but also a Christian cross. Customer preference “is not a defense to a claim of discrimination.” This is where long-term care can be misguided: A resident doesn't want a female doctor, or someone wearing a kippah, or someone of another color treating him or her. Too bad. While you can't make someone a better person, you can tell the resident that their request is not something you can accommodate, and offer to find them another placement, as one commenter suggested in this story about a nursing home that found itself in legal trouble for having a sign saying “No Colored Nurses.”

Similarly, you can't make an employee do something that conflicts with his or her religious beliefs, such as saying the rosary. In the latter case, a jury in Mississippi found evidence that an activities aide was fired because she didn't want to say the rosary with a resident, and the nursing home in question was ordered to pay $55,200 in compensatory damages, $13,884 in back pay and $500 in other economic damages, for a total of $69,584. 

Now, in the second way this Alabama case seems to go wrong: When someone files an EEOC complaint, you can't fire her in retaliation, which is what the EEOC alleges happened. The suit in the U.S. District Court of the Northern District of Alabama comes after “first attempting to reach a pre-litigation settlement through its conciliation process.” The EEOC is now seeking back pay, compensatory damages, punitive damages and injunctive relief.

Which takes us to the third way this can be seen as wrong. Frankly, it's that it became public and that there was no response ready from the nursing home. Maybe the nursing home is correct, and the EEOC is wrong. It almost doesn't matter, because the reputational damage is hard to undo.

One can rail against the media all day long, but we report what is there. At the very least, when the media come knocking and ask uncomfortable questions regarding a lawsuit, it's a good idea to at least go with something like this: “While we cannot comment on pending litigation, our nursing home is firmly committed to equal employment opportunities for everyone. We take any allegation of discrimination seriously, and stand by our principles and values of X, Y and Z.”

If any of this changes, we'll be sure to report back. And in the meantime, feel free to sound off about whether you agree. 

Elizabeth Newman is Senior Editor of McKnight's Long-Term Care News. Follow her @TigerELN.

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Daily Editors' Notes

McKnight's Daily Editor's Notes features commentary on the latest in long-term care news. Entries are written by Editorial Director John O'Connor on Monday and Friday; Staff Writer Tim Mullaney on Tuesday, Editor James M. Berklan on Wednesday and Senior Editor Elizabeth Newman on Thursday.

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