Workplace religious bullies are not protected by discrimination laws, but sometimes, neither are their victims

The notion that workplace discrimination laws are easy to exploit is pure propaganda. “What do you mean, she’s suing for discrimination? She was just a bad worker!” “Nobody’s racist anymore – why do we even have racial discrimination laws anymore?” Easy statements, with a certain no-nonsense appeal, but the fact is that plaintiffs in employment discrimination cases face long odds in the courtroom. At the federal level, plaintiffs in job discrimination suits win just 15% of the time (against a 51% plaintiff win rate for all civil cases at the federal level); when the appeals process is factored in, that rate can be as low as 2%. Because of these high risks, plaintiffs’ lawyers are often hesitant to charge on a contingency basis, and so plaintiffs might find them out hundreds or thousands of dollars in legal fees before they even get to trial – and then you keep spending until you either settle (almost universally a better solution that waiting for a verdict) or, lose at trial, lose on appeal, settle after a remand, or win the plaintiffs’ lottery and actually win the case. Plaintiffs’ lawyers face stiff competition from the understaffed, underfunded, underpowered Equal Employment Opportunity Commission which, while a socially worthwhile organization, often just corrals plaintiffs into mediated settlements, usually without a lawyer of their own, helping lawbreaking employers to buy their way off the hook at discount price. In short, employee-plaintiffs have long odds with high costs against a convoluted discovery process with clients who simply can’t afford the long haul it takes to win a big case. And that’s when the EEOC isn’t talking potential clients into settling for peanuts.

Ad on top of all these things, the employee-plaintiffs’ bar sometimes gets people like Pamela Hall.

By all accounts, Pamela Hall is a bully. According to the factual background of the just-decided Hall v. Tift County Hospital Authority, Pamela Hall, a Baptist and a former quasi-supervisor with a Georgia hospital, and Amanda Dix, a staff nurse under Hall, were friends, until religion came up. After what is surely a fascinating but, sadly, judicially unread backstory in which Hall accuses Dix of sleeping with Hall’s husband, Dix reveals to Hall that she is a lesbian, and Hall’s religious beliefs seemingly launched into overdrive.

Now, being a Baptist (ie, anti-gay) with a gay subordinate is not itself fodder for a discrimination case. Neither was it a discrimination case when Hall stuck a religious tract and a condescending little note in Dix’s locker (you know the kind, the condescending Christian power-trip: ‘your sexuality makes you morally inferior to me, but I will be merciful, since it is only your sexuality I hate and that you should change, not you personally!’). And neither was it a discrimination case when Dix found herself receiving follow-up religious harassment from Hall.

So when did it become a discrimination case? According to Hall, it was when she was demoted from her supervisory position. Not fired, not transferred to Alaska, just demoted – and by all appearances, temporarily. Now clearly, she lacks the stability and people skills to be leading anyone which is why she was demoted, but instead, she claims she was demoted because of “religious discrimination.”

What Pamela Hall’s lawyer hopefully told her before going to court was that, in order for something to be discrimination, you have to be treated differently because of your religion. If you’re a Baptist who harasses her subordinates, who goes out of her way to make people uncomfortable because of personality traits that are irrelevant to job performance, then you’re no more fit to lead a team than a Hindu, a Muslim, or an atheist who does the same thing – which is why you have to find the Hindu, Muslim, or atheist who does do the same thing and isn’t demoted, or who receives a lighter punishment. You can’t just be a Baptist who gets in trouble, you have to be in trouble because you’re a Baptist and because you’re not something else.

She lost her case. Her demotion was clearly because of her inadequate leadership traits. But the real sad point here, though, is how her victim’s own case when.

Because her victim doesn’t have a case.

Georgia, like the majority of American states, provides absolutely no job discrimination protections based on sexual orientation. If Hall had gone to Dix and fired her, handing her a pink slip that said just “NO QUEERS IN MY HOSPITAL!,” that would likely have been completely legal (barring a miraculous judicial resuscitation of the moribund public policy exception, but, that’s a tale for another day). Now, a pink slip saying “NO NON-BAPTISTS!” would have been a problem, for Title VII reasons, but Title VII says nothing about sexual orientation discrimination.

Many states have had the courage to stand up to bigoted religious interests, but unfortunately, Georgia is not one of them. Workplace bullying* is bad enough when it isn’t tantamount to discriminatory or bigoted behavior, but it’s far worse when bullying is so obviously based upon pure prejudice and the law provides no remedy for the victims of such blatant aggression. Pamela Hall is the true face of the parody plaintiff, the one who truly bungled her job and abused discrimination laws as an excuse for her own incompetence. And unfortunately, if her victim hadn’t had the courage to complain to upper management, Dix might have herself seen job consequences, even been fired, and had no remedies whatsoever.

*People interested in the subject of workplace bullying and the law are encouraged to read Suffolk Law professor David Yamada’s blog on the subject.

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