By Christopher R. Deubert, Senior Writer
On January 17, the Philadelphia Flyers of the NHL celebrated their Pride Night, a night intended to celebrate and support the LGBTQ+ community. For their pre-game skate, the Flyers players chose to wear special jerseys with rainbow-colored numbers and letters and to use rainbow colored tape on their sticks. The jerseys and sticks were then auctioned off to support relevant charities.
Flyers defenseman Ivan Provorov refused to participate in the pre-game skate or to utilize any of the rainbow-themed equipment. When questioned post-game about having missed the pre-game skate, Provorov said doing so was his choice in order “to stay true to myself and my religion,” which he identified as Russian Orthodox. Indeed, Provorov is a Russian national who, for what it’s worth, has previously refused to discuss the war in Ukraine, saying “I’m not here to talk about politics.”
In an attempt to explain his actions, Provorov said “I respect everyone. I respect everybody’s choices.” Such comments raise questions as to whether Provorov considers sexual orientation to be a conscious choice, a statement at odds with the expert consensus. (Hodges, 2021).
The Flyers and NHL responded by reaffirming their support for LGBTQ+ causes but avoided criticizing Provorov. Ordinarily, a player that misses a pre-game skate would not play in the game. Flyers coach John Tortorella said he did not consider scratching Provorov from the lineup and said he respected him for “being true to himself and to his religion.”
The Flyers accommodated Provorov’s professed religious beliefs but it is not clear they had to do so. Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of religion (among other protected characteristics). Further, the law and related guidance from the Equal Employment Opportunity Commission require employers to accommodate adjustments to an employer’s work environment that will allow the employee to comply with their religious beliefs unless doing so would impose an undue hardship on the employer.
As an initial matter, while the definition of religion is interpreted broadly under the law, it does not include social or political beliefs or personal preferences. The motivation for Provorov’s actions is debatable. Of potential relevance, Russia has passed abhorrent anti-LGBTQ legislation. (Davis, 2022).
Next, in 1977, in Trans World Airlines, Inc. v. Hardison, the Supreme Court held that an accommodation that would require the employer to bear more than a de minimis cost or burden is an undue hardship. 432 U.S. 63, 84 (1977). This is a low burden. The Flyers arguably will suffer more than de minimis costs from Provorov’s actions in terms of negative publicity, time and effort in responding to the situation, and potential lost sponsorship deals or ticket sales.
Indeed, the Supreme Court has recently agreed to review this standard in Groff v. DeJoy, in which a United States Postal Service letter carrier objected to delivering packages on Sundays for religious reasons. The Eastern District of Pennsylvania and the Third Circuit ruled against him. See Groff v. DeJoy, 35 F.4th 162 (3d Cir. 2022); No. 22-174, 2023 WL 178403 (Jan. 13, 2023).
Religious groups are seeking a standard akin to that under the Americans with Disabilities Act (ADA). (Millhiser, 2023). Under the ADA, employers must also accommodate employees absent undue hardship, but undue hardship is defined as “an action requiring significant difficulty or expense,” and generally imposes a much higher burden. 42 U.S.C. § 12111(10).
The Flyers could have reasonably challenged Provorov’s beliefs and conduct. Doing so in the future may get harder based on the Supreme Court’s future ruling in Groff.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP.
References
Wynne Davis, Experts see Putin’s latest anti-LGBTQ law as another attempt to control Russians, NPR (Dec. 18, 2022), https://www.npr.org/2022/12/18/1143578879/experts-see-putins-latest-anti-lgbtq-law-as-another-attempt-to-control-russians.
Brandon Scott Hodges, Is Sexuality a Choice? An Analysis of the Facts and Factors that Influence One’s Sexual Orientation, Phil. Coll. Of Osteopathic Med. (2021), available at https://digitalcommons.pcom.edu/cgi/viewcontent.cgi?article=1025&context=capstone_projects.
Ian Millhiser, A new Supreme Court case could turn every workplace into a religious battleground, Vox (Jan. 18, 2023), https://www.vox.com/policy-and-politics/23559038/supreme-court-groff-dejoy-religion-twa-hardison-workplace.
