By Lorene D. Park, J.D. Media reports, agency activity, and cases involving religious discrimination and accommodation suggest religion in the workplace is a hot topic for good reason. Cases over a CFO repeatedly asking a Muslim employee about terrorists, or a Rastafarian employee being fired for refusing to cut his dreadlocks, are among the more interesting cases. There are also more mundane cases involving employees being fired for absences accrued on their Sabbath or holy day. Religious issues will likely make headlines more often in the future, as the EEOC has announced plans to improve data collection and outreach on religious discrimination. Civil rights groups are also closely watching developments. For example, CAIR, a Muslim civil rights organization, issued a press release on August 8, 2016, welcoming a Colorado labor department ruling that Muslim workers fired over prayer breaks are eligible for unemployment benefits. On August 10, the Arizona Attorney General’s office defended a state economic security director’s emails to staff about his trip to a Catholic shrine in Lourdes, France, following a letter from the Freedom from Religion Foundation, which asserted that it was “unconstitutional” to use state resources to promote a religion and that he was showing “favoritism.” Given this level of interest, employers, Human Resources professionals, and decisionmakers need to refresh their knowledge on how to comply with federal and state laws governing religion in the workplace. The following points may be a good start: “Religion” means more than you think As explained by the EEOC, Title VII defines “religion” broadly and protects all aspects of religious belief, observance, and practice. This includes not only organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, or that seem illogical. “An employee’s belief or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few–or no–other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.” In one recent example, a federal court in Pennsylvania held that an atheist employee fired for refusing to remove tape covering an employer’s religious mission statement on his ID badge can go to trial on his failure-to-accommodate and retaliation claims. Whether the accommodation would impose an undue hardship on the employer will be determined at trial. It is also unlawful to discriminate against someone who is “perceived” to be of a certain religion based on that perception, regardless of whether they actually are of that religion. For example, it would be unlawful to discriminate against someone because he or she appears to be Middle Eastern and is assumed to be Muslim (there is an EEOC Q&A on this). As another example, a federal court in New York refused to dismiss Section 1981 discrimination claims by a bank’s senior VP who claimed management perceived her to be Jewish and assigned her to clients in “Jewish communities,” while directing clients with “non-Jewish” surnames away from her. Accommodating religion—neutrality and reasonableness are key The EEOC has explained that requests to accommodate a “religious” belief or practice could include a Catholic employee requesting a schedule change to attend church, a Hindu employee requesting an exception from the dress code to allow her to wear her bindi (forehead marking), an atheist asking to be excused from a religious invocation at the beginning of staff meetings, or an adherent to Native American spiritual beliefs seeking leave to attend a ritual ceremony. As these examples suggest, attendance policies, dress codes, and grooming standards are often at the center of religious discrimination and failure-to-accommodate claims. The key for employers is to maintain neutrality and reasonableness in creating and enforcing policies, as well as in considering possible accommodations. Importantly, an employer need not consider an infinite number of accommodations and is not required to endure an undue hardship to accommodate an employee. Generally, any cost in efficiency or wages that is more than de minimis is an undue hardship (e.g., hiring someone to fill in on an employee’s Sabbath or other holy day). Moreover, as explained by a federal court in Colorado, an employer’s mere failure to make a religious accommodation, without more, does not create a “freestanding” cause of action under Title VII. In that case, an employee’s discrimination claim was tossed because she did not suffer an adverse employment action. Attendance policies The undue hardship defense often comes up in cases involving employees who ask to be excused from scheduling or attendance requirements. For example, a federal court in Utah granted summary judgment against Title VII discrimination claims by two Seventh Day Adventists who were fired after repeated Saturday absences. The employer had a neutral attendance policy, and it had tried to accommodate the employees by advising them of ways in which to avoid accruing absences, including the use of paid time off and swapping with the coworkers. The alternative accommodations suggested by the employees (e.g., ignoring the absence policy) would have posed an undue hardship on the employer, and that was something Title VII did not require. On the other hand, a federal court in New Jersey denied Dollar General’s motion for summary judgment against a claim by a Seventh Day Adventist who was denied his request for Saturdays off to observe his Sabbath. He was a store manager, and the employer claimed his absence would have such negative consequences as deprivation of leadership, improper delegation of tasks, inadequately stocked shelves, and lower employee morale. In response, the employee argued that the so-called “Saturday Duties” were delegable and could have been referred to another employee without impacting overall operations. The court concluded that a jury would have to decide whether a scheduling accommodation would have been an undue hardship for the retailer. Dress and grooming standards Another common workplace dispute involves deviations from dress and grooming standards. In Abercrombie, a case involving the rejection of a job applicant because her headscarf conflicted with the retailer’s “Look Policy,” the Supreme Court wrote: “An employer may not make an applicant's religious practice, confirmed or otherwise, a factor in employment decisions.” It also noted that Title VII gives religious practices “favored treatment,” meaning it doesn’t just require that religious practices be treated no worse than other practices—religious practices must be accommodated and the failure to accommodate can support a discrimination claim. Now, a little over a year later, the EEOC has sued a staffing company serving Florida’s massive hospitality industry, alleging that it violated Title VII by firing a Rastafarian employee over his dreadlocks, which he grew as part of his religious beliefs. For a year he had kept them tucked under his hat without incident, but after a Disney staff member saw him in the kitchen, he was told he had to cut his hair to return to work. He refused and was fired. Prayer, proselytizing, and other religious statements According to the EEOC, employers “should not try to suppress all religious expression in the workplace,” but “if an employee’s proselytizing interfered with work, the employer would not have to allow it. Similarly, if an employee complained about proselytizing by a co-worker, the employer can require that the proselytizing to the complaining employee cease.” As for case law, innocuous statements about religion appear acceptable, but derogatory remarks or jokes are a bad idea. For example, the Fourth Circuit recently reversed summary judgment against a Muslim employee’s discrimination and hostile work environment claims based in part on evidence that her supervisor (the company’s CFO) at various points initiated a discussion on the differences between Christianity and Islam, said his birthday (September 11) reminded him of “terrorist attacks by the Muslims,” and asked her “why are the Muslims killing people.” In a federal case out of New York, a Jewish sales manager avoided summary judgment on his state and federal religious discrimination and hostile work environment claims based largely on workplace remarks such as “you people are manipulative” and “Jews only buy from Jews,” along with other evidence concerning the treatment of Jewish employees. Not all cases are so extreme. Some merely involve general discussions on religion or isolated remarks, which usually aren’t actionable. For example, when a car rental employee’s wallet was found, he expressed his happiness, saying to a coworker "praises and love and glory to God." In the employee’s lawsuit, he claimed a manager-in-training overheard him and created a hostile environment by mocking him through a “comedy skit” in which he pretended to be an excited pastor saying “thank you, Lord Jesus.” Noting that the employer took prompt remedial action, the court found this instance was not enough to be actionable. Forewarned is forearmed Other recent developments in the industry include the following: Flu vaccines in the healthcare industry: Denying a Muslim hospital employee’s religious-based request to avoid flu vaccines while keeping her patient-care position would have created an undue hardship for the hospital, ruled a federal court in Massachusetts. The hospital provided reasonable accommodations by allowing her to seek a medical exemption, helping her find a new job, and granting her leave. It will be interesting to see if a federal court in North Carolina comes to a similar conclusion in a suit filed by the EEOC alleging that several hospital employees were denied requests to forego the flu vaccine based on “various sincerely held religious beliefs.” Freedom from profanity: Dismissing in part the claims of a fired worker who alleged that he was fired just days after complaining to HR that his supervisor’s unrelenting use of profanity violated his religious beliefs, a federal court held that the Kentucky Civil Rights Act did not allow an individual to be held personally liable for religious discrimination. Office composition: The mere fact that more Jewish individuals were hired than Christians was not enough to show that the termination of a Christian employee for poor performance (which had been documented for years) was pretext for religious discrimination, ruled a federal court in Arkansas. Note, however, that it was enough to make a prima facie showing, and the employer had to spend time and resources defending itself. Ministers: There is a “ministerial exception” barring employees in ministerial jobs from filing discrimination claims against the religious institutions that employ them. A federal court in Illinois recently explained that the individual’s job title isn’t enough to show he or she is a “minister.” The analysis depends on the employee’s “functional role.” The court therefore denied a Catholic Archdiocese’s motion to dismiss a suit by its former “director of worship,” who was fired when the church learned he was marrying his same-sex partner. The parties will conduct limited discovery on the issue of his functional role. Takeaways When it comes to religion in the workplace, the foregoing examples make it plain that the issue is very complex and outcomes depend on the particular circumstances. As with most issues involving workplace discrimination, the usual advice applies—maintain and enforce neutral workplace policies (e.g., on appearance, attendance, and discrimination); enforce the policies consistently and fairly; adequately train your employees on your policies; fully investigate complaints; and promptly respond to any requests for religious accommodation. For those wanting more information and examples, the EEOC has provided a plethora of online resources to educate employers, employees, and the public about religious discrimination. The easiest way to access the various guides is simply to go to the agency’s website and type “religion” into the box provided for search terms. The many agency resources include a Q&A on religious discrimination; a Q&A and fact sheet on dress code, garb, or grooming policies; and an informal discussion letter on flu vaccines and religious accommodation.
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