Just as the employer had to make a decision about an employee’s request for an accommodation of a religious practice, the employee failed to complete his IRS Form I-9. In a recent case, the employer hired a sales representative, but the new employee wanted to keep his second job as a church pastor. The employer generally prohibited outside paid employment that required more than five hours per week, but the employee refused to resign his pastorate. Just then, the employer discovered the employee (a native Italian) had not shown employment eligibility as required by the Immigration Reform and Control Act of 1986 (“IRCA”). The employer discharged him, and the employee sued claiming the failure to complete the I-9 was pretext for religious discrimination. The court disagreed: without evidence that the employer treated similarly situated employees more favorably either under the outside employment policy or under the IRCA requirements, the coincidental timing between the discussion of religion and the discharge was not enough for the plaintiff to show discrimination. Martino v. Western & Southern Financial Group, No. 12-1855 (7th Cir. April 25, 2013).
Disciplinary decisions often coincide with discussions of protected status, but employers’ hands are not tied. Here, different people were responsible for the different issues, and the two decision trees did not intersect. Of course, the fact the employer applied its policies and the IRCA consistently was fundamental.