Ask the Experts: Same-sex Marriage License Refusal

Gay marriage

Question: We have an employee who has refused to issue marriage licenses to same-sex couples due to her religious beliefs. She has asked to be moved to another position, but we currently do not have any openings. Are we obligated to create another position, or can we release her if she refuses to conduct the duties of her job?

Answer: According to the Equal Employment Opportunity Commission (EEOC), an employer has a duty to provide reasonable accommodations unless there is an undue hardship to the company. In this case, a reasonable accommodation may be to permit the employee to signal a co-worker who will issue licenses to same-sex couples. This is assuming there are other workers available and the volume of same-sex couples seeking licenses is manageable. Similar accommodations have been made in the retail pharmacy industry, when pharmacists have declined to provide contraception.

If this is not a reasonable accommodation, the next step would be to seek lateral positions within the organization where the employee could transition to accommodate their religious beliefs. If there are no lateral moves available, the employee may consider other positions within the organization and voluntarily accept lower wages under such a move.

Be sure to document your accommodation efforts and seek legal counsel prior to initiating any negative employment action, such as denying an accommodation request or termination of employment.