Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Second Circuit Rejects Appeal of Employee Terminated for Refusal to Attend LGBTQ Bias Sensitivity Training

Author: Scarinci Hollenbeck, LLC

Date: March 20, 2023

Key Contacts

Back

In Zdunski v. Erie 2-Chautaiqua-Cattaraugus BOCES, No. 22-547 (2d Cir. Mar. 13, 2023), the U.S. Court of Appeals for the Second Circuit rejected the claim of a terminated employee that he was unlawfully discriminated against based on religion when he refused to attend mandatory LGBTQ anti-discrimination and bias training. The district court found that the termination was not because of the employee’s religion but rather for repeatedly refusing to attend mandatory employee training sessions. Plaintiff sought reinstatement, back pay and $10 Million in damages.

Background

Zdunski worked at the BOCES central business office in Fredonia, New York for approximately seven years, earning an annual salary of $32,000. After another employee advised the employer that they were undergoing transition surgery, the employer, in keeping with requirements under the Dignity for All Students Act (“DASA”), required all employees to attend LGBTQ anti-bias and sensitivity training. Zdunski advised the employer that the teaching at the training would contradict his religious beliefs as a “devout Catholic” and requested an accommodation exempting him from the training. Zdunski did not attend the training. Thereafter, he received a memo advising him that he was required to attend the mandatory training in May 2018. He again asked the objective of the training and asked for an accommodation. He did not attend the training. Zdunski was then given a counseling memo advising him that he had to attend the mandatory training the next day or be subject to discipline up to and including termination. He did not attend. Shortly thereafter, Zdunski received a termination notice.

The Action

After his termination, Zdunski filed a complaint with the New York State Division of Human Rights (“NYSDHR”) which was cross-filed with the Equal Employment Opportunity Commission (“EEOC”). The NYSDHR issued a determination of No Probable Cause dismissing the complaint which was adopted by the EEOC. Zdunski then filed in the United States District Court alleging that the training was “aimed at changing his religious beliefs about gender and sexuality,” and that attending the training “would have caused him to violate the religious teachings to which he adheres.”

The district court found in favor of the employer holding that the plaintiff’s “unsupported assumption that Defendants believe him to be bigoted due to his religious beliefs is insufficient for support an inference of discrimination.” Additionally, the district court held that “the evidence in the record supported Defendants’ position that his termination was due to repeatedly refusing to attend a mandatory employee training.” In finding that the plaintiff did not point to any evidence that he was treated differently from other employees who refused to attend the training, the district court also found that Zdunski failed to provide any evidence of intent or malice on the part of the employer.

The Second Circuit upheld the district court’s decision finding there was not sufficient evidence to support Zdunski’s claims.

Issues for Employers

Over the last several years, there have been several decisions concerning religious freedom and LGBTQ rights. As more legislation comes down the pike, we can expect more of these types of challenges. Here, the employer was not required to give an accommodation as doing so would have caused the employer to be in violation of New York State law requiring them to provide annual anti-discrimination training to all employees.

Employers should consult with employment counsel to ensure that their trainings, policies and Diversity, Equity and Inclusion measures are up-to-date and consistently applied. Zdunski, through counsel, advised that he intends to seek review from the United States Supreme Court on this issue. The Supreme Court however, is expected to hear another case of religious accommodation in the employment sector in Groff v. DeJoy, which is currently scheduled for oral argument on April 18, 2023.

We will continue to monitor and report on the Groff matter as well as any updates in this matter.

    No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

    Scarinci Hollenbeck, LLC, LLC

    Related Posts

    See all
    How Understanding Bankruptcy Trends Can Benefit Your Business post image

    How Understanding Bankruptcy Trends Can Benefit Your Business

    The bankruptcy legal landscape presents both challenges and opportunities for businesses navigating financial distress. Understanding current bankruptcy trends can help businesses make more informed and strategic decisions. Corporate Bankruptcy Filings Trending Upwards Bankruptcy filings continued to trend upwards in 2024. According to statistics released by the Administrative Office of the U.S. Courts, personal and business […]

    Author: Brian D. Spector

    Link to post with title - "How Understanding Bankruptcy Trends Can Benefit Your Business"
    SEC Takes Actions Against Issuers for Failure to File Form D post image

    SEC Takes Actions Against Issuers for Failure to File Form D

    In December, the U.S. Securities and Exchange Commission (SEC) announced charges against two privately held companies for failing to file a Form D notice, which is generally utilized for exempt securities offerings. Here, the SEC’s enforcement sends a strong message: compliance with regulatory requirements is not optional and failure to comply can have significant consequences. […]

    Author: Kenneth C. Oh

    Link to post with title - "SEC Takes Actions Against Issuers for Failure to File Form D"
    Redefining Labor Relations: NLRB's Pivot from Abruzzo’s Memoranda post image

    Redefining Labor Relations: NLRB's Pivot from Abruzzo’s Memoranda

    On February 14, 2025, the Office of General Counsel (OGC) of the National Labor Relations Board (NLRB) under Acting General Counsel William B. Cowen issued Memorandum 25-05, “New Process for More Efficient, Effective, Accessible and Transparent Case handling.” The Memorandum rescinds nearly all of the Memoranda issued by his direct predecessor, Jennifer Abruzzo, setting the […]

    Author: Matthew F. Mimnaugh

    Link to post with title - "Redefining Labor Relations: NLRB's Pivot from Abruzzo’s Memoranda"
    What Are FIRPTA Withholding Requirements? post image

    What Are FIRPTA Withholding Requirements?

    If you purchase real property from a foreign person or entity, you may be required to withhold taxes from your payment to the seller under the Foreign Investment in Real Property Tax Act (FIRPTA). The federal tax law is designed to ensure that foreign sellers pay any applicable capital gains tax on profits realized from […]

    Author: Jesse M. Dimitro

    Link to post with title - "What Are FIRPTA Withholding Requirements?"
    Does Your Homeowners Insurance Provide Adequate Coverage? post image

    Does Your Homeowners Insurance Provide Adequate Coverage?

    Your home is likely your greatest asset, which is why it is so important to adequately protect it. Homeowners insurance protects you from the financial costs of unforeseen losses, such as theft, fire, and natural disasters, by helping you rebuild and replace possessions that were lost While the definition of “adequate” coverage depends upon a […]

    Author: Jesse M. Dimitro

    Link to post with title - "Does Your Homeowners Insurance Provide Adequate Coverage?"
    Understanding the Importance of a Non-Contingent Offer post image

    Understanding the Importance of a Non-Contingent Offer

    Making a non-contingent offer can dramatically increase your chances of securing a real estate transaction, particularly in competitive markets like New York City. However, buyers should understand that waiving contingencies, including those related to financing, or appraisals, also comes with significant risks. Determining your best strategy requires careful analysis of the property, the market, and […]

    Author: Jesse M. Dimitro

    Link to post with title - "Understanding the Importance of a Non-Contingent Offer"

    No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

    Sign up to get the latest from our attorneys!

    Explore What Matters Most to You.

    Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

    Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

    Let`s get in touch!

    * The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

    Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!

    Please select a category(s) below: