December 5, 2013

RELIGIOUS DISCRIMINATION VIA E-MAIL: ANOTHER VIRTUAL DISASTER

The case is Ogle v. Indiana Department of Workforce Development (IDWD), decided on 11/20/13 by district court Judge Tanya Walton Pratt [2013 U.S. Dist. LEXIS 165325]. For those who do not have access to Lexis/Nexis, the case may be viewed here.

Ronald Ogle, a community employment specialist with an Indiana state department (the Disabled Veteran Outreach Program) decided, for some odd reason, to e-mail fellow co-workers and others a cartoon on a restaurant marquee (the Little Pigs Genuine Pit) containing the statement “Safest Restaurant on Earth, No Muslims Inside.” Though in poor taste, what got Ogle in trouble was his comment stating ““I think this is wonderful” and stating further that he thought the cartoon was funny. Not so for several for several IDWD employees that found the e-mail offensive. Ogle was then terminated after a “predeprivational” hearing for violating the State of Indiana’s “Information Resources Use Agreement.” Ogle then lodged disparate treatment and adverse impact charges, claiming he was discriminated against for his own religion.

It should be noted that after Ogle’s email, two other employee posted cartoons about religions other than Islam and were also accused of violating the Information Resources Use Agreement, but they received five days of unpaid suspension and were permitted to return to work. Additionally, the State Employees’ Appeals Commission (SEAC) ordered that Ogle be reinstated with back pay. Prior to the SECA ruling, Ogle lodged a Title VII suit claiming he was discriminated based on his own religion and was granted a right to sue letter by the EEOC. Despite the SEAC ruling, Judge Pratt ruled in favor of IDWD on their motion to dismiss the case, ruling as follows:

The email that Mr. Ogle sent, despite referencing a religion, did not make any claim to Mr. Ogle’s religion or his beliefs. In fact, the record shows that Mr. Ogle has not specified that he is a member of any particular religion at all. …. not only was the email sent by Mr. Ogle not an expression of his religious belief, but the record is absent of any facts indicating that the employers were aware of what religion, or lack of religion, Mr. Ogle identified with. Rather, Mr. Ogle’s email was simply a poorly calculated joke that some people found offensive, and although it may not have warranted termination, it also does not warrant protection under Title VII. Mr. Ogle has not presented, and the Court is not able to find, any Title VII precedent in this Circuit that protects an employee who makes derogatory comments about another religion.

In short, the fact that Ogle was treated less favorably than similarly situated co-worker, and ultimately reinstated by the SEAC, there was nevertheless no foundation for a Title VII claim of religious discrimination.

Notwithstanding Ogle’s ultimate “vindication,” the moral here, as in other social media cases, is to carefully temper you thoughts before posting them in virtual space, where messages are permanently stored.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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