“Creed—The Mysterious Protected Group under the Tennessee Human Rights Act”
by Jeff Weintraub and Jennifer Riley
Creed? What’s that??
Query: a plaintiff sues under Tennessee law, claiming unlawful employment discrimination because of his creed: he is a vegan. What does a court do with this?
As you know, Title VII of the Civil Rights Act of 1964 (Title VII) is a federal law that prohibits discriminatory employment practices on account of an individual’s race, color, religion, sex, or national origin. Many states have their own similar statutes, the interpretation of which closely follow that of Title VII and the other federal employment statutes.
However, unlike Title VII, some of these state statutes also may prohibit discriminatory employment practices on the basis of other, additional classifications. For example, the Tennessee Human Rights Act (THRA) applies to employers with eight or more employees within the state and prohibits discrimination based on race, color, religion, sex, age, national origin, and creed. Tennessee is not alone in extending protections under its fair employment laws to an individual based on creed—a handful of other states also prohibit discriminatory or retaliatory action on the basis of creed, e.g., Colorado, New Jersey, New York, Washington, Wisconsin, and Wyoming. Some states include creed in the state’s statutes by combining it with religion in one way or another. For example, California law provides protection from harassment or discrimination in employment because of “religious creed.”
How is “creed” defined under Tennessee Law?
There is little or no legal precedent in Tennessee for claims brought on the basis of creed under the THRA’s employment-discrimination provisions. Despite the fact that most chapters in statutes provide sections with definitions of focal terms to make it easier to interpret and enforce the laws uniformly, the THRA, unfortunately, does not define “creed.” When a court is presented with enforcing a statute that has an undefined critical term, the court may look at how similar statutes in other states define the term, but, even so, there is little guidance in other states for a Tennessee court to look to.
What guidance is there for interpreting the term “creed”?
As previously mentioned, federal laws such as Title VII and the ADEA do not contain protections on the basis of creed. There may not be much hope of eventually getting a United States Supreme Court decision to guide Tennessee as to the interpretation of the term “creed” in fair-employment provisions.
Of the other states that also extend protection to individuals on the basis of creed, the few that provide definitions for the term are among those that combine creed with religion. For example, under Colorado Revised Statutes, Title 24, Art. 34, which prohibits employment discrimination on the basis of creed, the statute defines both “creed” and “religion” “as a religious, moral or ethical belief which is sincerely held and includes all aspects of religious observance and practice.”
California’s Fair Employment Practices Law prohibits employment discrimination on the basis of “religious creed” and later defines, among other terms, the term “religious creed” and “creed” to “include all aspects of religious belief, observance, and practice, including religious dress and grooming practices.”
Washington’s Laws Against Discrimination make it unlawful for employers to discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin or the presence of any sensory, mental, or physical disability. While Washington includes “creed” in its employment-discrimination laws, it notably excludes “religion.” A look at Washington caselaw indicates that in the area of employment law, as well as other areas, the term appears synonymous with the term “religion” as used in other states. In several cases in Washington, “creed” has been interpreted as meaning “a system of religious beliefs.”
Are creed and religion synonymous?
Washington is not the only state that views the terms “creed” and “religion” synonymously. Litigators have been known to use the legislative history behind Title VII to bolster their arguments that the terms are interchangeable. In early antidiscrimination actions drafted by the federal government, prohibited discrimination bases included religion or creed. The Civil Rights Act of 1964 (Title VII) barring certain types of employment discrimination was derived from President John F. Kennedy’s proposed antidiscrimination legislation. The drafting of Title VII was based on New Deal measures of fair employment that prohibited “race, color, or creed” discrimination.
The House Judiciary Committee, in its report on Title VII, considered religion, as a prohibited basis for discrimination, to be an important aspect of “conquer[ing] the forces of hatred and intolerance” in this Nation. After looking to the New Deal employment measures and discussing the importance of religion as a prohibited basis, the drafters of Title VII included language similar to that of the New Deal, but instead of copying the language verbatim, the drafters added “religion” and subtracted “creed.” The argument can be made that “religion” was inserted in lieu of “creed” because the drafters intended the terms to mean the same thing; but, of course, the opposite also can be argued—that is, if the drafters meant the terms to be interchangeable, then why strike “creed”?
It could easily be inferred that in states like Tennessee, where the drafters intentionally included both terms, they were displaying an intent to make some distinction between the two terms. Unfortunately, Tennessee courts or legislation has yet to weigh in on what exactly what distinction may be.
If it isn’t religion, what is it?
Merriam-Webster’s Dictionary defines “creed” as “a set of fundamental beliefs; a guiding principle.” If you simply Google the word, you will find that most definitions tie the term to religion, but this does not help us distinguish between the two terms. In states that prohibit employment discrimination on the basis of religion and not creed, many plaintiffs have failed in their claims for discrimination based on their vegan practices and sexual orientations brought under the heading of “religious discrimination.” These claims tend to fail because the courts find that the beliefs are not “religious.” While no court has yet provided an answer, these cases beg the question: if beliefs of this sort do not rise to the level of religious beliefs, do they fall in somewhere just shy of religious, a creed, perhaps?
What does the undefined term mean to Tennessee employers?
Since the law has not yet established what “creed” means, as far as prohibiting employment discrimination on that basis, employers have little guidance in this area. If an employee presents a non-religious but sincerely held belief, will that be enough to be considered a “creed” by the courts? With only a gut feeling to go by, we think it likely that Tennessee courts will lean toward the view that “creed” and “religion” are synonymous terms; thus, veganism, for example, since it does not
constitute a religious belief, would not be a protected group under the THRA. However, to play it safe, employers should refrain from passing judgment or making derogatory comments regarding an employee’s expressed beliefs.
The hard part will come when an employer is faced with a situation that may appear he is terminating an employee due to his creed. Sooner or later, the courts will be ruling in such cases. While we tend to think that Tennessee will decide that creed equals religion (for THRA purposes), the last time we checked, the courts were not giving us a vote on the question. So, employers, proceed with care!