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A physician needs to address the issue of an underperforming employee without raising red flags for religious discrimination.

I have an employment issue in my cardiology practice that may turn into a religious discrimination one, and I’m not sure how to proceed. I have an NP who used to be terrific but has become brusque with patients and staff. She often does not complete charts and forms on time, which slows down everyone’s work. I spoke to her, and she said there is a lot of stress at home because her husband’s parents moved in with them and are critical of her. She apologized; however, her work did not improve. She is Muslim but was not observant. Now, though, she wears a head scarf, which she says is because of pressure from her in-laws. She keeps the scarf tucked into her lab coat, so there is no sanitary issue. However, I’m now hearing that some patients have complained, and she is aware of these complaints. I would certainly have her back against bigots, but I’m concerned that she could now claim religious discrimination if I fire her over her work issues. 

The fact that she was not previously observant is not relevant because, well, people change. What matters is what the employee currently practices.

The fact that her in-laws pressured her into this act of religious expression is also not relevant. She is Muslim, and a head scarf can be traditional attire within her faith. The fact that she has taken it up at least partially to make her personal life easier does not impinge on those facts. There is no evidence that she is insincere, like the employee in a 2004 case who claimed (unsuccessfully) that her facial piercings were religious, so Costco had to let her wear them at work.

There is also no need for her to specifically ask for accommodation. In 2015, the Supreme Court noted that a Muslim applicant wearing a hijab to her job interview at Abercrombie &Fitch was sufficient proof of her need for accommodation even though she did not expressly ask for one.

Taking these points as the baseline, you are now at the requirement to afford her a “reasonable accommodation” for her faith-based practices.

The standard for what is “reasonable” is that it permits the employee’s religious observance but does not place an undue burden on the business. Examples of such cited by the Equal Employment Opportunity Commission include being costly, compromising workplace safety, decreasing workplace efficiency, infringing on the rights of other employees, or requiring other employees to do more than their share of potentially hazardous or hard work. In the Costco case, the undue burden was the employer losing its ability to control its public image.

There are no such issues in your situation, though. As a medical staff member, she wears the scarf appropriately for hygiene, and you intend to support her against any disruptive bigotry that could arise in the office. So, you are being a sympathetic boss while acting as the law requires.

The problem you anticipate is the coincidence of the events if you fire her now—the appearance of the firing is about patient complaints about the scarf since she was not previously fired just for poor work.

To counter a discrimination claim, you must show that her firing was for a legitimate business purpose. In this regard, her previous work had become poor before she adopted the scarf, and this has not changed. However, you did not document her poor performance before because you only dealt with her informally. If you were sued, it would be difficult to reconstruct the prior events in a way that did not sound merely self-serving.

That said, it seems you would prefer to keep her on if her work can return to its prior standard. This dovetails with your next steps because the best defense to any wrongful termination claim, including one based on discrimination, is the employer showing that they tried to keep the employee on but could not do so.

Of course, in the medical setting, where patient safety is paramount, an employer can take more summary action if the employee’s beliefs cause imminent endangerment. However, that does not apply here, where the only possible hazard is one your NP has already responsibly dealt with independently. A patient may be offended because of their bigotry, which is why they may seek care elsewhere, not a justification for employee termination.

Therefore, you want to have a sit-down meeting on the record now, with your office manager or another senior staff member present, to discuss the work issues. You then want to set up a formal plan of correction that she can practically meet (i.e., corrections matched to specific issues rather than subjective statements about “rudeness” or “promptness”) and with a schedule set up to review that.

Finally, you must make it clear that termination can be the next step. This is essential because she currently has no actual notice of the risk to her job because you only talked to her informally and supportively.

Acknowledging the bigotry issue you have since become aware of should also be a part of this meeting. She should be told that you have only now become aware of the patient comments and that you want her to feel free to bring any issues to you. This goes to the fact that it is not enough for an employer not to discriminate personally—it must also prevent harassment by others, including non-staff, in the workplace.

At the end of the meeting, she should feel supported as a Muslim employee but also be fully aware that her work conduct must improve for her job to be maintained. Rather than a legally impermissible pantomime just to create a paper trail for a pre-decided firing, you will have a record of your actual willingness to have her remain if she can resume her prior work conduct.

She probably will improve—someone who was “terrific” before can be so again, particularly when they know that they have employer support—but if not, you will have both acted ethically and be legally defensible if you have no alternative but to fire her.