WASHINGTON — Cases of discrimination serve as a cautionary tale on liability, but employers should seek to create better workplaces as well, Jonathan A. Segal told attendees at the Society for Human Resource Management’s employment law conference Feb. 27.
Segal’s talk mostly centered on antisemitism, but the Duane Morris LLP partner fielded questions and offered answers that illuminated ways for religious diversity at work to thrive across the board.
Below are three audience questions and Segal’s answers.
If an employee’s religion makes them anti-LGBTQ, how should HR advise them on interacting with transgender co-workers?
Misgendering is harassment, the lawyer confirmed.
For example, using she/her pronouns for a trans man (a man assigned female at birth), Segal said, would be harassment. Instead, HR can advise the anti-LGBTQ person to consistently use their transgender co-worker’s name instead of any pronouns. That, Segal thinks, “would be a reasonable accommodation.”
He brought up a real-life case where an Orthodox Jewish man refrained from shaking a woman’s hand in work settings, due to his religious beliefs. “My proposal was: He didn't have to shake her hand,” Segal said. “But he couldn't shake anyone's hand.”
In bringing up this client anecdote, he pondered aloud if the anti-LGBTQ worker in the hypothetical scenario should use every colleague’s first name instead of any pronouns — regardless of whether they were transgender or cisgender.
Segal told the crowd that in brainstorming reasonable accommodations, he looks for a “middle ground.” But both Segal and other attorneys have previously told HR Dive that such an adjustment should be reserved for situations driven by another protected class, such as religion, that entitles an employee to an accommodation.
And generally, those situations will be rare, they said, explaining that employers have a lot of leeway when it comes to workplace policies, including inclusivity policies that require employees to use co-workers' correct pronouns.
How should HR accommodate talent who celebrate the Jewish high holidays — or any non-Christian holidays, for that matter?
“I love ‘floating holidays’ that people can use for any holiday,” Segal said.
He illustrated how accommodation for religious celebrations goes beyond paid time off. He mentioned a scenario where a project launch meeting was slated for the first month of Ramadan — implying a carelessness or insensitivity there.
Managers won’t be able to avoid everything, Segal acknowledged. But having holidays of various faiths in the shared calendar will help.
A Holocaust denier created a hostile work environment and was eventually fired. How should HR step up and care for the remaining employees in the wake of such trauma?
“I would invite a speaker, a survivor,” Segal said. “More likely, a child of a survivor. Sometimes, that person can talk about their family tree.”
Where should an employer start? The person who asked the question was local, so Segal recommended outreach to the United States Holocaust Memorial Museum. In general, HR can reach out to regional or local Holocaust remembrance organizations.
“You can't make all the bad feelings go away. But you can amplify the good,” Segal said.
