In Lynn Noyes v. Kelly Services, the Ninth Circuit Court of Appeals considered whether a former software developer at Kelly Services could maintain a cause of action for reverse religious discrimination against her former employer. This category of claim had historically been very rare, but was addressed in this May 29, 2007 decision.
In Noyes, Plaintiff alleged that Kelly Services denied her a deserved promotion on the basis that she was not a member of the "Fellowship" religious organization, as was her manager and the employee who was eventually promoted. The district court had granted summary judgment in favor of Kelly Services on Plaintiff’s Title VII disparate treatment claim, holding that Plaintiff could not show that she was "passed over for the promotion specifically because she was not a member of the Fellowship." Reversing the district court’s ruling, the Ninth Circuit held that Plaintiff’s case should be decided by a jury. The court also highlighted that although the senior manager ultimately responsible for the promotion represented that the decision was the product of a "consensus" reached between two other lower managers as well, the two lower managers "did not recall reaching a management consensus" on the decision. This undermined the credibility of Kelly Services and helped to create an issue for trial as to whether the Company’s articulated reasons for the decision were pretextual.
This holding sends a cautionary message to employers of both the existence of a "reverse religious discrimination" claim, as well as the potential pitfall when one manager contends that an employment action was the result of a consensus when in fact others contend that the decision was unilaterally made. It is recommended that employers review their written policies as well as the application of those policies to prevent such confusion from occurring in their workplace.