Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

Yes, this is true.  An employer in Miami required employees to attend courses at the Church of Scientology, and also “to spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving.”   Sounds like “The Master.”    

They also required one employee to undergo an "audit" by an "E-meter"  

"According to the EEOC's suit, employees repeatedly asked not to attend the courses but were told it was a requirement of the job. In the cases of [two employees], when they refused to participate in Scientology religious practices and/or did not conform to Scientology religious beliefs, they were terminated."  

Anyway, the EEOC sued the employer, Miami’s Dynamic Medical Services, which provides medical and chiropractic services, claiming that “Requiring employees to conform to religious practices and beliefs espoused by the employer, creating a hostile work environment, and failing to reasonably accommodate the religious beliefs of an employee all violate Title VII of the Civil Rights Act of 1964.” 

It is interesting that at a time when Scientology is contending that, at least for tax purposes, it is, in fact, a church, its "religious practices" are resulting in an alleged Title VII violation.

One EEOC lawyer said that "Employees' freedom from religious coercion at the workplace must be protected," and another said "When an employer makes an employment decision based on employees' failure to adopt the employer's religious beliefs, it violates federal law.”

Takeaway:  If you want to force employees to scream at ashtrays, make sure there is no religious aspect to it. 

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A federal judge has just denied summary judgment to a company which allegedly fired 80 Somali Muslim employees for requesting time for a prayer break.  

The EEOC had brought suit on their behalf alleging that during Ramadan in 2008, the employees had engaged in a work stoppage because they were not permitted to change the time of their dinner shift break so that they could engage in the required prayer. The company fired them for complaining that they were denied a reasonable accommodation.

The case can now go to trial.

See Equal Employment Opportunity Commission v JBS USA, case number 8:10-cv-00318, U.S. District Court for the District of Nebraska.

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Every year during the holiday seasons, I get at least one phone call from clients about an issue that has arisen due to a holiday.  Whether the complaint from employees revolves around days off for holiday celebrations or particular holiday decorations that some might find offensive, these are issues that must be dealt with sensitivity by managers.

Before you think this will be a serious discussion of that issue, I was just trying to find some reason to post my assistant Chrissie's pick for our first inaugural Friday Five Minute Laugh Session.  She's outdone herself with the first one -- a full clucking version of the Lumineers popular song "Ho Hey" that does end with an Easter message.

From Jimmy Fallon's Late Night blog (Clucking Lumineers):  enjoy!

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Question: When will employers and/or their trusted HR people and advisors learn the law about accommodation for religious beliefs?  Answer:  Only after they get sued.

We have harangued employers since we started our blog about the necessity of accommodating employees who are required by their religion to wear certain clothes or other adornments as long as this does not cause an undue hardship. See our blog dealing with the case of a Muslim employee who was required to wear a headscarf.

Our blog talked about a lawsuit filed by a Muslim hotel restaurant hostess at Disneyland claiming to have been fired after she refused to take off her headscarf, which allegedly “violated Disney’s ‘look’ policy.”  We recalled a similar “look policy” which Abercrombie & Fitch promulgated to insure a unified "preppy" brand image but which resulted in an adverse jury verdict in favor of a job applicant who was denied hiring when she appeared for an interview wearing a headscarf.

Now, the EEOC has just announced a lawsuit against a North Carolina corporation that operates several Bojangles' restaurants, alleging that it failed to accommodate a Muslim employee's religious requirement that he wear a beard.   The employee had been a practicing Muslim for 14 years, required by his religion to grow and maintain a beard without trimming or cutting it “unless it exceeds the length of his fist when holding his beard in his closed hand under his chin.” 

He told the manager that he could not cut his beard for religious reasons, as the manager had asked, but was hired anyway -- only to be fired the next day after a higher supervisor directed him to shave off his beard and refused his requested accommodation of wearing a “beard net,” which is similar to a hair net.  

These numerous cases over the last few years have predictable outcomes – so why don’t employers get the message before they are sued?

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We wrote way back last June that it is difficult to believe these days that a multi-state company either has no relevant polices or employee handbook, or conducts so little training that it’s managers are permitted to ask a job applicant in-depth questions about his religious beliefs and affiliations, and then refuse to hire him when they do not agree with or like his responses.  This was in response to an lawsuit filed then against Voss Electric Company (also known as Voss Lighting), which, it was alleged “appears to have a corporate culture that requires employees adhere to certain religious beliefs that have absolutely no bearing on the business of selling lighting  products.”  

The EEOC just announced that it settled that case – and Voss will pay $82,500 and furnish company-wide injunctive  relief.  Among other things, the suit alleged that a job applicant who applied for an open position as an “operations supervisor,” a  position which involved no religious duties or responsibilities, was asked to identify every church he had attended over several years; where and when he was "saved" and the circumstances that led up to it; and whether he "would have a  problem" coming into work early to attend Bible study before clocking in. At the second interview, the branch manager became upset over the applicant's responses and refused him employment.  

For its transgressions, Voss now must undertake the following: post an EEOC notice specifically prohibiting employment discrimination on the basis of religion at all its 21 locations spanning 12 states; re-disseminate anti-discrimination policies; periodically report to the EEOC about specified hiring information; conduct religion-neutral job advertising; and train management on religious discrimination.

As we said last year: Please don’t be a Voss.  Know the law and have your managers and employees act accordingly.

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Some managers are clueless. One would think that employers, even those not particularly savvy about employment discrimination, would somehow know not to discriminate on the basis of religious beliefs.   

Not so the new administrator of senior assisted living facilities at a company in Texas. She decided that the long-time dietary services manager, who because of her religious beliefs had previously been excused from working on Sundays, would now be required to be available to work on Sundays.  To make matters worse, she injected her own beliefs (or, perhaps, sarcasm) into the fray by telling the employee that God would her excuse her because she worked in the health care field.  "There's the door," the administrator told the employee when she balked.

So now the company must pay $42,500, and in addition, “furnish extensive injunctive relief,” described by the EEOC as follows:

• amend its written anti-discrimination policy to include language regarding Title VII's prohibition on religious discrimination and a provision regarding legal obligations for an employer to provide reasonable accommodations to employees based on their religious belief, including beliefs necessitating not working on a particular day or days of the week;
• conduct annual training for three years on the law against religious discrimination in the workplace, an employee's right to have his/her religious beliefs accommodated in the workplace, the types of accommodations that may be granted to employees due to their religious beliefs and the proper procedure for investigating complaints; and
• post an anti-discrimination policy for five years at its corporate headquarters in Grapevine, Texas, and at its facility in Sweetwater, Texas.

Said an EEOC attorney: "An employee's religious beliefs should never be dismissively disregarded.  Under the law, it is important for an employer examine whether a conflict between a work requirement and the faith-based practice of an individual can be resolved."

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I started the "Fun with Employment Law" posts mainly to provide some entertainment, but the inaugural post has actually generated a thoughtful response -- and one that I thought warranted comment.

After reading the 1/13/13 post where I advised that German employers were permitted to require female employees to wear nude or white bras, a reader sent a comment that posed the more basic question of whether an employer could even establish a dress code and if so, what if an employee claimed their religion prevented them from complying with the dress code.

The fact is, employers are allowed to establish dress codes.  A dress code cannot be discriminatory on its face, however.  Years ago, I saw a dress code that said employees could not wear "ethnic hairstyles."  If you thought, yikes, when you read that, then you are on the right track.  As for the second question, employers may have to reasonably accommodate an employee's religious beliefs that conflict with a dress code, provided that doing so does not create an undue hardship.

These religious accommodation requests can often be tricky, as multiple pasts posts demonstrate.  (See 1/18/13 post  regarding a pentecostal cashier for a recent example).  Employers are cautioned to take the time to think through an employee's request rather than relying on a strict, "sorry, we have a dress code" response. 

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A Burger King franchisee in Texas has agreed to pay $25,000 to settle a case brought by the EEOC in which it alleged that a Pentecostal Christian cashier was fired for wearing a skirt to work. The employee, whose religion requires her to only wear skirts or dresses, contrary to the employer’s policy that she must wear pants, claimed that she had been initially promised an accommodation but that she was fired nonetheless.

Employers should be aware that in the US employers are required to accommodate the right of religious employees to wear religion-required clothes, tattoos or symbols as long as this does not cause an undue hardship to the employer.  

We have discussed religious accommodation a lot in the last year, and on October 23, 2012 we commented that religion and the workplace is a big topic on both sides of the Atlantic, with the issue of religious liberty in the workplace bedeviling the courts.

We reported on September 3rd that that a group of four cases from the UK were coming before the European Court Of Human Rights involving practicing Christians who allege employment discrimination in violation of articles 9 and 14 of the European Convention on Human Rights – two lost their jobs because they refused to remove a cross or crucifix; the third objected to being required to perform civil-partnership ceremonies; and the last was fired because his religious beliefs prevented him from counseling same-sex couples.

The decisions have just been handed down and we will discuss them shortly.  

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A lot has been written lately about a decision from a federal court in Ohio which some commentators claim (with shock) elevates veganism to a religion.   The Court, however, did not do that.

A few relevant facts are in order. Plaintiff, an employee at a hospital, refused a flu vaccine upon the grounds that she was a vegan, and as such, did not ingest animal products or by-products (such as go into vaccines), “a moral and ethical belief which [she] sincerely held with the strength of traditional religious views.”   She was fired, and sued under Title VII for religious discrimination.    

The employer claimed that “in its view veganism does not qualify as a religion, but rather is no more than a dietary preference or social philosophy.”  

The Court held that “at this early stage of the litigation” and “in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views (emphasis added).”

The Court therefore did not hold that veganism is a religion, or that Title VII includes vegans in a protected class, but, it seems to me, simply decided (wisely) not to become embroiled at the beginning of a lawsuit in an argument as to what is a religion and/or what is the meaning of a belief “sincerely held with the strength of religious views.”     

As a footnote, please be aware that, as my partner Jeff Polsky aptly noted last week in his California Employment Law blog, courts in California have previously held that vegans cannot sue for religious discrimination, and the decisions nicely discuss the countervailing legal and philosophical arguments.  

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Fed up with the fact his town had a nativity and menorah display each year at the holidays despite the fact that he believed it violated the First Amendment's Establishment of Religion clause, Chaz Stevens took a different tack this year.  The Pulp reports that he applied for and received permission to set up a Festivus pole, or in his words, an anti-religion display.

As most of you probably remember, and if you don't FestivusWeb.com will fill you in on the details, Festivus is the holiday first mentioned by Frank Costanza on Seinfeld.  George then invoked Festivus to get out of trouble with his boss for giving his co-workers Christmas cards that said a donation had been made in their name to a fake charity.

I doubt many employers are getting requests to display the traditional Festivus pole along with the poinsettias, kinaras, and menorahs, but this article did remind me of some of the employee complaints I've heard over the years about holiday displays -- both the "why can't I put up my Christmas tree" and "I don't believe my company should set up a nativity scene" variety of complaints.

Before employers simply say, "Bah, humbug, go back to work," they should be prepared for complaints of religious discrimination.  I have clients who simply go the all-inclusive route where every religion is included in the display, go the non-denominational Seasons Greetings route, or say no displays, period.  It's really up to you, but just a reminder to be aware of the issue.

In the meantime, I look forward to December 23rd and the Airing of Grievances, followed by dinner and the Feats of Strength!  Happy Festivus!

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We now have a serious split of authority with respect to the women's preventive care services mandate set forth in the Patient Protection and Affordable Care Act (“ACA”)

On November 2nd, we reported that a second federal court (in Michigan) had enjoined the application of the rule of the Patient Protection and Affordable Care Act (“ACA”) that would have required a “secular, for-profit, family owned and operated corporation” owned by a practicing Catholic to provide employee health insurance that covers contraception. 

The owner contended that it was contrary to Catholic doctrine to use, pay for, or support the use of contraception, and that having his company provide or participate in health insurance that includes providing contraceptives (or else incur a penalty) violates his sincerely-held religious beliefs and substantially burdens his free exercise of religion.

An Oklahoma federal court has just issued a decision directly at odds with the Michigan one, demonstrating the split among federal courts over the rights of for-profit, secular employers to challenge the validity of the ACA’s women's preventive care services mandate.  The Court denied a similar injunction motion filed by Hobby Lobby Stores and Mardel , both for-profit, secular corporations owned by a family management trust whose trustees are practicing Christians. 

The Court held that Hobby Lobby and Mardel, as secular, for-profit companies, do not satisfy the ACA’s definition of a “religious employer,” and concluded that plaintiffs had no likelihood of succeeding on the merits of their claims.

We reacted with skepticism to the earlier case reported on November 2nd, questioning whether an owner’s religion can be imputed to a corporation, or that the ACA violates either the Religious Freedom Restoration Act (known as “RFRA”) or the First Amendment.  Given the split in decisions, we have even more reason now to anticipate an ultimate decision from the Supreme Court.   

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Bagels and cream cheese is (are?) somewhat at the center of an interesting case arising out of a federal court in Colorado.  

Plaintiff was employed by the Colorado Department of Transportation to perform tasks such as planning, scheduling and organizing official functions and special training events.  He is a devout Christian who claimed that he was discriminated against on the basis of his religious faith because he was told to send invitations to reschedule an “annual employee appreciation luncheon” which had been scheduled during the observance of Ramadan, so that an observant Muslim co-worker could attend.  The rescheduled event was a bagels and cream cheese breakfast “[o]n behalf of our fellow employees who are celebrating the end of the Month of fasting [Ramadan].”

Plaintiff objected to accommodating his Muslim colleague, and refused to forward the invitations. He claimed that this was “seriously inappropriate” and “overly accommodating to Muslim proselytization and practices in the workplace,” violating the First Amendment by “establishing that Ramadan was the top religion [in the workplace].”

The Court disagreed. 

“There is no question but that plaintiff subjectively was offended … [and] plainly believed that these actions condoned religious proselytizing of Islam in the workplace and found such actions offensive to his own religious beliefs.  Objectively, however, the evidence, viewed in the light most favorable to plaintiff, does not support a conclusion that a reasonable person could view these events, singly or in combination, as sufficiently severe or pervasive so as to create a religiously hostile or abusive working environment.”

Could it have been the bagels?  Maybe they should have had pancakes!

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In the landmark Hosanna-Tabor case decided earlier this year, the Supreme Court held that the First Amendment bars the government from interfering with the decision of a religious group to fire one of its ministers. What this means is that such a so-called “ministerial exception” exempts an employer from the application of the anti-discrimination laws,  and an employee deemed a minister has no recourse to Title VII, the ADA, the ADEA, etc.  Read our earlier discussion of the case.  

A federal appeals court which decided its first post-Hosanna-Tabor case has just held that a church music director who was fired could not sue under the ADEA or the ADA because of the “ministerial exception.”  The employee claimed that he was not a minister, was not ordained and lacked the education, training, and experience to be considered a minister, had purely-secular duties, and that “he merely played the piano at Mass and that his only responsibilities were keeping the books, running the sound system, and doing custodial work, none of which was religious in nature.”

The Church, on the other hand, contended that the music director “foster[s] the active participation of the ‘liturgical assembly’ in singing, and promoting the various musicians—choir members, psalmists, cantors, and organists—all of whom play instruments in service of the liturgy. Thus, the person who leads the music during Mass is an integral part of Mass and ‘a lay liturgical minister actively participating in the sacrament of the Eucharist.’”

The Court found for the Church, noting that Hosanna-Tabor sets “no rigid formula” for determining who is a minister and mandates a fact-intensive, totality-of-the-circumstances analysis.  Analyzing the facts, the Court held that the music director fell within the "ministerial exception" because “there is no genuine dispute that [he] played an integral role in the celebration of Mass and that by playing the piano during services, [he] furthered the mission of the church and helped convey its message to the congregants.”

Since finding a "ministerial exception" is a fact-intensive inquiry, it is hard to draw a conclusion as to the significance of this new decision.  Suffice it to say that it may mean that courts may very well bend over backwards to find such an exception, since the music director here had no indicia of being a minister.  The Court credited his piano playing at Mass as "further[ing] the mission of the church and help[ing] convey its message to the congregants.”  But even the janitor can be deemed to be furthering the mission of a church simply by keeping it clean, and even a lay secretary or clerk can be deemed to be helping convey a church message by typing and mailing church correspondence.   

Let's see what other courts do.

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A second federal court has enjoined the application of the ACA’s (“Patient Protection and Affordable Care Act”) rule that would have required a Catholic employer to provide employee health insurance that covers contraception.

This week a judge in Michigan temporarily enjoined the government from enforcing this rule against Weingartz Supply Company, which is a self-described “secular, for-profit, family owned and operated corporation that sells outdoor power equipment and employs over 170 employees.” The company owner, Daniel Weingartz, is a practicing Catholic, and contended that it is contrary to Catholic doctrine to use, pay for, or support the use of contraception, and that having his company provide or participate in health insurance that includes providing contraceptives (or else incur a penalty) violates his sincerely-held religious beliefs and substantially burdens his free exercise of religion.

Weingartz Supply Company sued under the Religious Freedom Restoration Act (known as “RFRA”), which provides that “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”   However, the Court also analyzed the request for a preliminary injunction under the First Amendment.

Standing of Weingartz To Raise the Religious Freedom of His Corporation

Initially, the Court had to deal with this issue of standing – whether a corporation can assert a right to religious freedom.  The Court noted that the RFRA protects only individuals, not corporations, but held that that “a corporation has standing to assert the free exercise rights of its owners” when that corporation is closely held and “‘merely the instrument through and by which [the plaintiffs] exercise their religious beliefs.’”  So “[f]or the purposes of the pending motion, however, Weingartz Supply Co. may exercise standing in order to assert the free exercise rights of its president, Daniel Weingartz, being identified as ‘his company.’”  

Likelihood of Success on the Merits and Compelling State Interest

As to the elements of “likelihood of success on the merits” and whether the government “has a compelling state interest” in enforcing the rule, the Court held that Weingartz Supply Co is “likely to show at trial that the [rule] substantially burdens the observance of the tenets of Catholicism,” although “[n]either [it] nor the Government have shown a strong likelihood of success on the merits.”  

Additionally, the Court stated that it “has no doubt that every level of Government has an interest in promoting public health as a general matter, but it remains uncertain that the Government will be able to prove a compelling interest in promoting the specific interests at issue in this litigation.”

Irreparable Harm and The Balance of the Equities

Finally, and apparently most persuasively to the Court, it held that “[v]iolation of a First Amendment right in itself constitutes irreparable harm,” and that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. The potential for harm to Plaintiffs exists, and with the showing Plaintiffs have made thus far of being able to convincingly prove their case at trial, it is properly characterized as irreparable.”

Ultimate Holding

The Court concluded that “The harm in delaying the implementation of a statute that may later be deemed constitutional must yield to the risk presented here of substantially infringing the sincere exercise of religious beliefs. The balance of harms tips strongly in Plaintiffs’ favor. A preliminary injunction is warranted.”

This writer remains unconvinced that the corporation has standing, as the Court concluded, or that an owner’s religion can be imputed to a corporation, or that ACA violates either RFRA or the First Amendment. But the Supreme Court holds the key to these issues.      

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Religion and the workplace is a big topic these days on both sides of the Atlantic, with the issue of religious liberty in the workplace bedeviling the courts. In the US employers are required to accommodate the right of religious employees to wear religion-required clothes, tattoos or symbols as long as this does not cause an undue hardship to the employer.

On April 29, 2012 we discussed the increase in the number of Muslims filing charges and lawsuits alleging employment discrimination on the basis of religion, and noted that some typical workplace-discrimination claims include forbidding women from wearing the traditional head scarf or hijab. In fact, our blog on August 8th dealing with the case of a Muslim employee who was required to wear a headscarf was entitled “When Will Employers Learn The Law Regarding Religious Dress?”

We reported on September 3rd that that a group of four cases from the UK were coming before the European Court Of Human Rights involving practicing Christians who allege employment discrimination in violation of articles 9 and 14 of the European Convention on Human Rights – two lost their jobs because they refused to remove a cross or crucifix; the third objected to being required to perform civil-partnership ceremonies; and the last was fired because his religious beliefs prevented him from counseling same-sex couples. The decisions are pending.

Now, in what may be a first, a German court has fined a dentist who refused to employ a veiled Muslim woman solely because she declined to remove her headscarf, or hijab, holding that he breached the Equal Treatment Act. The court ruled that the headscarf was not optional, but a required expression of religious belief.

Eventually, the courts in the US and abroad will arrive at a concensus which balances religious liberty with the legitimate right of employers to exercise at least a minimal amount of control over the workplace.  

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The EEOC has just sued UPS on behalf of an Arab and Muslim employee who claims that the company allowed supervisors and coworkers to harass him and then retaliated against him when he reported the harassment. The company, of course, has not yet had a chance to respond.

The lawsuit alleges that since 2004, workers pelted the plaintiff with rocks, bottles and tools, put a dead mouse into his lunch bag, and called him "Dr. Bomb," "Al Qaeda," and "Taliban." A supervisor also told him that he would not be permitted to work with hazardous materials because "you are a terrorist and you are going to blow up the building."
 

We noted in a number of earlier blogs an increase in the number of Muslims filing charges and lawsuits alleging employment discrimination on the basis of religion and/or national origin, and that “although Muslims make up only two percent of the U.S. workforce,” they filed nearly 25 percent of religious-discrimination claims in 2009. “Terrorist” and “member of al-Qaeda” seem to be common epithets hurled at these employees, but as this new complaint alleges, Muslim employees are having more than just words hurled at them.

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In one of the most significant cases coming before the European Court of Human Rights out of the UK, the government’s Queens Counsel argued that that an employee’s ability to resign "guarantees freedom of religion."

As we noted in our blog last week, a group of four cases were coming before the Court involving practicing Christians who allege employment discrimination in violation of articles 9 and 14 of the European Convention on Human Rights – two lost their jobs because they refused to remove a cross or crucifix; the third objected to being required to perform civil-partnership ceremonies; and the last was fired because his religious beliefs prevented him from counseling same-sex couples.

The court heard an interesting argument from both sides. The government contended that “where [the employees] can obtain alternative employment in which they can practise their religion as they wish ... [they] were able to manifest their religious belief in many ways outside the professional sphere." Counsel for one of the employees responded that this argument could be used to justify state-sponsored anti-Semitism: "The logical implication of the Government's assertion is the rather startling one that a state employer could have a policy of refusing to employ practising Jews and say that was not a violation if other employers were prepared to employ them."

Outside of court, reaction was just as strident. A spokesman for the National Secular Society was quoted as saying that "Any further accommodation of religious conscience in UK equality law would create a damaging hierarchy of rights, with religion trumping all,” and the chief executive of the British Humanist Association said that "Cases like this, which ought to be sorted out in a sensible common-sense way on the ground, are being used to whip up a narrative of persecution, which is really a fig-leaf for an attempt to increase the visibility of privilege of religion in public life."

The issue of religious liberty in the workplace can get folks riled up on both sides of the pond!
 

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We have lit up the blogosphere lately with our entries about accommodating employees under Title VII who are required to wear religious dress or adornments, and with our litany of employers who have been found to be transgressors. Title VII prohibits employment discrimination based upon, among other things, religion, but is silent about religious dress, tattoos, and hairstyles, leaving it to courts, and state law, to resolve any issues which may arise.

California is about to enact a law which is intended to clear up any doubt about whether wearing religious dress to work is a protected activity – it specifically provides that religious clothing and hairstyles qualify as a religious belief or observance, and also provides that segregating an employee from customers or the public is not a reasonable accommodation of an employee's religious beliefs.

The “Workplace Religious Freedom Act of 2012” is now on Governor Brown’s desk for signature.

The prefatory "digest" to the law sets out pretty clearly what the law will do:

“This bill would include a religious dress practice or a religious grooming practice as a belief or observance covered by the protections against religious discrimination, and would specify that an accommodation of an individual’s religious dress practice or religious grooming practice that would require that person to be segregated from the public or other employees is not a reasonable accommodation. This bill would further provide that no accommodation is required if an accommodation would result in the violation of specified laws protecting civil rights.”

The body of the law itself states that: (1) “religious dress practice” “shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed; and (2) “religious grooming practice” “shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.”

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Religion and the workplace is a big topic these days. We have recently written a lot about employers’ need to accommodate the right of religious employees to wear religion-required clothes, tattoos or symbols.  

Now, the august European Court of Human Rights sitting in Strasbourg will hear four “landmark” employment cases arising out of the UK which involve not only the wearing of religious symbols, but also the refusal to perform job duties because of religious beliefs. The four cases, described by one reporter as perhaps defining the boundaries of religious liberties in the UK when decided, involve practicing Christians who allege employment discrimination in violation of articles 9 and 14 of the European Convention on Human Rights (i.e., freedom of religion, and the prohibition of discrimination). The cases involve the following fact situations.

(1) Two employees who allege that they were prevented from wearing a cross visibly;

(2) A municipal registrar of births, deaths and marriages who alleges that she was fired because she declined to officiate at same-sex civil partnership ceremonies;

(3) A counselor who refused to provide counseling to same-sex couples because he believes that "homosexual relationships are contrary to God's law."

These issues are still hot-button issues in the US, and we will see what the European Court decides and if/how it may affect American law.  

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We have blogged on multiple occasions recently about religious accommodation issues and the blunders made by employers in dealing with these requests (see August 23rd blog for example).  Although these issues can be complicated, they cannot simply be ignored or unilaterally denied without making some attempt to accommodate the employee.

The EEOC agrees with us that this has proved to be a difficult issue for employers and that the EEOC will continue to pursue these claims. 

During an August 24th workshop sponsored by the EEOC's Training Institute and the agency's Washington, D.C., field office, a senior attorney noted that these types of cases are "low hanging fruit."  Although I have always hated that expression, it does aptly describe these type of cases.  The reason is that these cases, unlike a lot of employment cases, do not usually involve a lot of documents or witnesses.  Instead, it usually involves a low level manager who is strictly enforcing a dress code that is usually contained in one or two paragraphs of a handbook.

As the senior EEOC attorney stated, managers need to be trained that certain religious beliefs may mean that employees cannot comply with a dress code.  Managers also need to be trained that a dress code is not carved in stone and some flexibility may need to be applied.

Employers should be cautioned about trying to justify a dress code because they have an "image" that they want to convey to their customers.  The EEOC, as noted at last week's conference, has rarely accepted that as a business necessity that prevents making an accommodation.  As we also reported last year, juries are also not too fond of that defense (see July 29, 2011 blog noting Abercrombie & Fitch's failed attempt to use image as a defense).

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May we remind readers of our blog of August 14th wherein we talked about a lawsuit just filed by a Muslim hotel restaurant hostess at Disneyland claiming to have been fired by Walt Disney Co. after she refused to take off her headscarf, which allegedly “violated Disney’s ‘look’ policy.”   We recalled a similar “look policy” which Abercrombie & Fitch promulgated to insure a unified "preppy" brand image but which resulted in an adverse jury verdict in favor of a job applicant who was denied hiring when she appeared for an interview wearing a headscarf.

We asked our readers rhetorically – yet again -- irrespective of the veracity or merits of this new lawsuit:  When will employers and/or their trusted HR people and advisors learn the law?

Now it comes to light that another Title VII suit has just been filed by the EEOC in a Texas federal court against a Burger King franchise operator on behalf of a female cashier who claims to have been fired for wearing a skirt to work as required by her Pentecostal Christian religion. The EEOC alleges that the employer failed to accommodate the woman’s religious beliefs when she refused to wear uniform pants required by the franchise operator.

We have written much about accommodating employees who are required by their religion to wear certain clothes or other adornments as long as this does not cause an undue hardship to the employer. See our blog on August 8th dealing with the case of a Muslim employee who was required to wear a headscarf, which we entitled “When Will Employers Learn The Law Regarding Religious Dress?”

When will employers and/or their trusted HR people and advisors learn the law?

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We have written much about accommodating employees who are required by their religion to wear certain clothes or other adornments as long as this does not cause an undue hardship to the employer.  On April 29, 2012 we discussed the increase in the number of Muslims filing charges and lawsuits alleging employment discrimination on the basis of religion, and noted that some typical workplace-discrimination claims include comments about calling an employee a terrorist,  and forbidding women from wearing the traditional head scarf or hijab.  In fact, our blog on August 8th dealing with the case of a Muslim employee who was required to wear a headscarf was entitled “When Will Employers Learn The Law Regarding Religious Dress?” 

The Hollywood Reporter reports that yet another lawsuit has been filed, this time by a Muslim hotel restaurant hostess at Disneyland who claims to have been fired by Walt Disney Co. after she refused to take off her headscarf, which allegedly “violated Disney’s ‘look’ policy.”  The reader may recall a similar “look policy” which Abercrombie & Fitch promulgated to insure a unified "preppy" brand image but which resulted in an adverse jury verdict in favor of a job applicant who was denied hiring when she appeared for an interview wearing a headscarf.

The former Disney employee alleges in her complaint  that beginning in the summer of 2008, co-workers and supervisors began to call her a “terrorist,” “camel,” and “Kunta Kinte.”  They also “made repeated comments to her that Arabs are terrorists, that she speaks the terrorist language, that she is trained to make bombs, that she gets scanned by security wherever she goes, that she escaped from her family, that people from her country bomb the soccer field when they don’t win games, that she learned how to make bombs at the mosque and that she not kill a co-worker’s boyfriend (“please don’t kill my boyfriend! Terrorist! !“)”

Significantly, she claims that the “look” policy is “not applied at all or consistently at the Storytellers Café. For instance, although the policy prohibits visible tattoos, artificial hair that does not look natural, hair dyeing or highlighting that does not create a uniform look over the whole head, and fingernails that exceed one-fourth of an inch, each of these requirements has been routinely violated by multiple employees of the Café without repercussion. Christian employees observing Ash Wednesday were permitted by Disney to work with a cross of ashes on their foreheads despite the fact that this too facially violates the 'look' policy (emphasis added)."

Walt Disney Co. could not comment on the suit since it had not yet seen the complaint, but stated that “Walt Disney Parks and Resorts has a long history of accommodating a variety of religious requests from cast members of all faiths."  

Irrespective of the veracity or merits of this new lawsuit, we want to repeat our previous question: When will employers and/or their trusted HR people and advisors learn the law? 
 

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On April 29, 2012 we discussed the increase in the number of Muslims filing charges and lawsuits alleging employment discrimination on the basis of religion, and noted the statistics and a few recent charges filed.

We reported that Ralph E. Stone noted in the Berkeley Daily Planet that “although Muslims make up only two percent of the U.S. workforce,” they filed nearly 25 percent of religious-discrimination claims in 2009. He stated that “The increase in discrimination claims was predominately by Muslims, Arabs, South Asians, and Sikhs or Islamophobia. Most of the complaints alleged harassment and termination of employment. Some typical workplace-discrimination claims include comments about praying in the workplace, calling an employee a terrorist or member of al-Qaeda, racial slurs, forbidding women from wearing the traditional head scarf or hijab, and refusing to shave a beard. And there have been cases where an employee was discriminated against because other employees mistakenly thought he was a Muslim.”

On May 6, 2012, we commented on what appears to be the largest employment discrimination jury verdict in Missouri history based on religion which was rendered in favor of a woman who converted to Islam and then experienced harassment by co-workers at Southwestern Bell/AT&T. Plaintiff contended that “Nobody ever cared what religion I was before,” but when she converted colleagues began to call her a “towelhead” and a terrorist, and asked her if she was going to blow up the building.

The EEOC has now announced that Fremont Toyota in California has agreed to settle a case brought by four Afghan American salesmen who alleged that during a staff meeting the general manager called them “terrorists,” and threatened them with violence. The employer agreed to pay $400,000 and to train the dealership’s management staff. One of the plaintiffs was quoted as saying that: "The irony of this matter is that, after being labeled ‘terrorists’ at our old job, most of us found work with the U.S. military serving in Afghanistan protecting U.S. soldiers from the terrorists."

The increase in complaints of religious and national origin discrimination, and the atrocity at the Wisconsin Sikh temple this week, may or may not be related, but this employment trend is obviously one that should concern all Americans, not only employers.

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Cases involving the same or similar fact situations keep coming, leading one to believe that employers have no clue as to the law, and/or that they have no HR directors or counsel.

For example, we wrote a few times recently that although Title VII does not prohibit dress or grooming rules per se, such rules may still violate Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style. As with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.

We cited a few cases to remind us that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices. One such case involved Abercrombie & Fitch, where an Oklahoma jury awarded $20,000 in damages to a job applicant who was denied hiring when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer unsuccessfully argued that it had a strict "Look" policy in order to insure a unified "preppy" brand image.
 

Despite what would appear to be settled law, the EEOC announced yesterday that it had entered into a consent decree with an assisted living center, Morningside House of Ellicott City, Maryland, which failed to hire to a Muslim woman as a certified nursing assistant because she refused to remove her headscarf, which she contended was a religious obligation. The employer, apparently seeking to make out a case of “undue hardship,” made a weak claim that the headscarf could interfere with the woman’s ability to work her position, although the woman argued that she had worn the headscarf during her nursing training, which included working in the operating room, and that it had never interfered with her ability to perform her duties.
 

The woman was given $25,000, and the employer has now been ordered to refrain from further discrimination against anyone on the basis of religion; ordered to provide religious discrimination training to supervisors, managers and all involved in the hiring process; ordered to post a notice stating its commitment to maintaining an environment free of religious discrimination; and ordered to submit copies of any complaints about religious discrimination to the EEOC for a period of two years.
 

An EEOC attorney commented: “In this case, there was no undue hardship to the employer -- just an apparent overreaction to a reasonable request because of myths and stereotypes about a religion.”
 

When will employers and/or their trusted HR people and advisors learn the law?

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On January 11, 2012, we reported about a significant First Amendment religious freedom decision involving the “ministerial exception” which was decided that day by the Supreme Court, Hosanna-Tabor Church v. Equal Employment Opportunity Commission. The Court had before it a teacher in a religious institution who taught both secular subjects and a class in religion. When she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination.  Her case involved a head-to-head confrontation between First Amendment religious freedom and the anti-discrimination employment laws. 

At issue before the Court was the definition of “minister,” because” the “ministerial exception” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.” The unanimous Court held that the religious institution must be free to choose its own ministers without state involvement: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

We credit ace reporter Judy Greenwald of Business Insurance for bringing to our attention one of the first post-Hosanna-Tabor decisions. A federal court in Illinois has decided a case with facts similar to Hosanna-Tabor and, following the Supreme Court, has stated that “[t]he ministerial exception, grounded in the Free Exercise and Establishment Clauses of the First Amendment, precludes claims of employment discrimination against a religious institution brought by its ministers. … [the Supreme Court] upheld the right of religious institutions ‘to select and control who will minister to the faithful. …’”

As in Hosanna-Tabor, the Court had to decide whether the plaintiff was a “minister,” but noted that the Supreme Court “declined to “adopt a rigid formula for deciding when an employee qualifies as a minister.” The Court concluded that there were “marked similarities between these two cases [which] establish that the ministerial exception is applicable to [plaintiff’s] claims as a matter of law.” 

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In a deft bit of political etch-a-sketchism, Personnel Today reports that UK Prime Minister Cameron, while at the same time opposing the case of an employee who claims that she was discriminated against for wearing a crucifix at work has nonetheless vowed to "support the right of people to wear religious symbols at work.”

The Equality Act of 2010 provides that employers should, where reasonably practicable, accommodate the requirements of the different religions or beliefs of their employees when creating a dress or appearance code. In a case pending before the European Court of Human Rights, a former British Airways employee alleges that because she was wearing a cross around her neck as a matter simply of personal preference, in admitted violation of the company’s dress code, she was sent home. She has lost her case at three levels of the UK court system, and the European Court will hear her appeal in September. The UK government is opposing her at the Court.

Cameron was faced with an accusatory comment by an MP in the House of Commons (which sounds like it was lifted from present day American political debate) – “I was surprised to see the Government is resisting Miss Eweida's appeal. I cannot believe that the Government is supporting this oppression of religious freedom in the workplace,” and then asked “so what are we going to do about this sad case?" Cameron replied that "What we will do is, if it turns out that the law has the intention, as has come out in this case, then we will change the law and make clear that people can wear religious emblems at work."
 

Darren Newman, employment law trainer and a contributing editor at XpertHR, was confused: "The Government has made it clear that it is opposing the application to the European Court of Human Rights by Miss Eweida and others. Given that fact, the Prime Minister's comments today are puzzling.”

Many employment law experts oppose the case filed by this employee. They distinguish the case where a religion requires the wearing of certain clothes or symbols, from the case where an employee wears a religious symbol as a personal preference, in violation of an employer’s dress code which prohibits both religious and non-religious displays.

For example, employment law editor of XpertHR, John Read, comments that "As it currently stands, discrimination law basically prevents the detrimental treatment of employees because of a protected characteristic, including religion or belief. It does not provide a blanket right for employees to manifest their religion or belief at the workplace in whatever way they choose - although it does not ban expression of belief either.”

For employers who wish to be in compliance with The Equality Act 2010, take a look at the XpertHR quick primer as to the dress or appearance requirements of the different religions or beliefs.

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We reported earlier today of an egregious Title VII case of discrimination based upon religion where a job applicant was grilled about his church, his beliefs, and even if and when “he was saved.” We expressed disbelief that a multi-state company either has no relevant polices or employee handbook, or conducts so little training that it’s managers are permitted to make such inquiries.

We just learned of another case, reported in Business Management Daily, in which the reporter seemed similarly bemused, stating by way of a preface that “Most religious discrimination lawsuits involve allegations of subtle mistakes—e.g., a manager didn’t understand that an employee had a legitimate need for religious accommodation. But there was nothing subtle about the allegations in a recenently settled case involving Cincinnati-based Convergys Corp.” Sounds like the Voss Electric case we discussed this morning, but with one difference – it was the company’s recruiter who ignored the law.

In this case, an applicant for a call center position informed the recruiter for the company that, for religious reasons, she could not work on the Jewish Sabbath. The recruiter told the applicant that she would not be considered for the job unless she could work Saturdays, and therefore stopped the interview. The applicant then filed an EEOC charge of discrimination.

As we have often noted, employees (or applicants) are entitled to reasonable accommodations for their religious beliefs – something that this recruiter apparently did not know, since he/she never discussed any possible accommodation with the applicant.   But it was the company that paid the price for this recruiter’s lack of knowledge or understanding: they settled by paying the applicant $15,000, and entered into a two-year consent decree which obligates it to make sure that its recruiters are trained on religious discrimination, and requires it to notify all future applicants that accommodations may be available.
 

Once again -- training, training, and yet more training!

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It is difficult to believe that these days a multi-state company either has no relevant polices or employee handbook, or conducts so little training that it’s managers are permitted to ask a job applicant in-depth questions about his religious beliefs and affiliations, and then refuse to hire him when they do not agree with or like his responses. 

The EEOC unsurprisingly jumped on this one, apparently because the managers of Voss Electric Company allegedly so egregiously violated Title VII. Amazingly an EEOC trial attorney claimed that “Voss Lighting appears to have a corporate culture that requires employees adhere to certain religious beliefs that have absolutely no bearing on the business of selling lighting  products.”  

The EEOC sued Voss Electric Company (also known as Voss Lighting), a leading supplier of specialized replacement lighting products with offices in 16 US cities. According to the complaint, Voss Lighting advertised a vacancy for an “operations supervisor,” a  position which involved no religious duties or responsibilities. Edward Wolfe applied and was considered qualified for the position. 

However, two managers asked him repeatedly about his religious activities and beliefs; to identify every church he had attended over several years; where and when he was “saved” and the circumstances that led up to it; and whether he “would have a problem” coming into work early to attend Bible study.  At the second interview, the branch manager became upset over Wolfe’s responses and he was refused employment.  

As expected, the EEOC is seeking not only back pay, compensa­tory and punitive damages and reinstatement or front pay for Wolfe, but also a court order prohibiting Voss Lighting from any further such religious discrimination against applicants.  

Please don’t be a Voss. Know the law and have your managers and employees act accordingly.

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There have been a couple of major legal matters just reported that relate to dress, tattoos or grooming habits in the workplace and the impact of Title VII.   On May 15th we wrote a long blog about whether workplace prohibitions relating to dress, tattoos or grooming habits violate Title VII. See also our blog of 7/29/11.

Although Title VII does not per se prohibit dress or grooming rules or employer acts based upon them, nevertheless these rules may be violative of Title VII’s prohibition of employment discrimination based upon religion.  Accommodation must be made if the dress or grooming rule or policy impacts employees who are members of a protected group, such as religion, and we cited a few recent case examples.

New York -- It was announced yesterday that the NYC Transit Authority has settled a lawsuit brought by the US Department of Justice on behalf of Sikhs and Muslims regarding head coverings worn by transit workers.  See report of Jessica Dye of Reuters. 

California -- The California Assembly overwhelmingly passed a bill – A.B. 1964 (known as the “Workplace Religious Freedom Act of 2012”) which would provide that the state’s version of Title VII applies to religious clothing and hairstyles.

The New York lawsuit merits some discussion. It had long been the policy – but only enforced after 9/11 -- that all head coverings (i.e., headscarves, turbans and other religious headwear) had to bear a Transit Authority logo, or else the employee would be forced to work where the public could not see them. Now, the transit employees will be permitted to wear these head coverings - but only if they are in the same blue color as their transit uniforms.   Significantly, the California bill discussed in this blog, pushed by Sikh groups, was passed to prohibit the similar practice of employers who forced employees wearing religious clothing or headwear “to the back of the store” where they could not be seen.

Chris Dolmetsch of Bloomberg, reported that the Transit Authority also agreed not to “selectively enforce uniform policies or take adverse employment actions” against such employees, and also agreed to accommodate workers who can’t comply with uniform policies and work to eliminate policies and practices that discriminate on the basis of religion, according to the court filing.  It also agreed not to retaliate against employees or prospective workers who have complained that it has engaged in such discrimination, and to require mandatory training regarding religious discrimination, according to the court document.

A Justice Department attorney stated that he was “"pleased that the NYCTA has agreed to end its discriminatory practices that for years have forced employees to choose between practicing their religion and maintaining jobs."
 

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Its been almost a year since my partner Christina Stoneburner wrote about whether workplace prohibitions relating to dress, tattoos or grooming habits violate Title VII. See blog of 7/29/11.  Title VII does not prohibit dress or grooming rules or employer acts based upon them, and Michigan is the only state with such laws.  However, a religious accommodation must be made if the dress or grooming rule or policy impacts employees who are members of a protected group. In that case, as with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.

These rules can get complex, and it is recommended that counsel be consulted before an employer makes a blanket refusal of an employee's accommodation request.

A few recent cases serve to remind us that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices. See yesterday’s blog for our discussion of “disparate impact.” A few recent cases are illustrative. 

Last year we reported a case filed by the EEOC against Abercrombie & Fitch where an Oklahoma jury awarded $20,000 in damages to an applicant for a job after the employer refused to hire her when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer argued that it had a strict "Look" policy in order to insure a unified "preppy" brand image.

We also noted a Title VII filing by the EEOC against a Taco Bell franchise owner (EEOC v. Family Foods, Inc.) alleging that its termination of a devout Nazirite due to his failure to cut his hair was religious discrimination. Nazirites do not cut their hair as a sign of devotion to God. The employee had worked for Family Foods for six years without cutting his hair (in fact, he had not cut his hair since he was 15 years old) before the company tried to enforce its grooming policy that required him to cut his hair.  Occupational Health & Safety now reports that Family Foods has just entered into a consent decree whereby it settled the case and agreed to pay the employee $27,000, and also to adopt a formal religious accommodation policy, to do appropriate annual trainings on Title VII, and also to post a copy of its anti-discrimination policy at all of its facilities.

These cases indeed had a religious component, and an EEOC attorney commented that “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.”

Without some evidence that there are religious overtones regarding a dress or grooming policy, the results may be different.   A recent story by Steve Giegerich of The St. Louis Post-Dispatch reports on an employee with dreadlocks who had been working at a convenience store and gas station for four months who was barred from work because his hair violated the employer's written policy which states that hair must be "kept neat and clean...immoderate styles... such as corn rows, braids etc. must be approved by a supervisor ... dreadlocks and mohawks are unacceptable."

As Giegerich accurately reported, “policies on the personal grooming habits of employees land on the edge of state and federal employment discrimination laws,” and in all states but Michigan, employers have the right to terminate or suspend any employee who fails to comply with grooming guidelines.

He quoted an EEOC attorney who, agreeing with our analysis above, stated that "The baseline for evaluating grooming policies is to look at their overall burden on different groups of employees." If the policy applies to all employees but has a disparate impact on a protected class of employees, oh say Nazirites, it may violate Title VII.

Significantly, the reported story noted no sincerely held religious beliefs of the employee regarding his wearing of dreadlocks. Absent any such evidence, it would appear that his wearing of dreadlocks could be prohibited by the employer.

A Missouri Department of Labor spokeswoman quoted by Giegerich summed up this area of the law fairly well:

"An employer may condition a job on an employee's compliance with the employer's hair styling preferences, unless the employee's alternative hair styling preference is connected with the employee's inclusion in a protected category. For example, a particular hair style may be a tenet of the employee's religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer)."

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On April 29th we discussed the disturbing trend of an increase in the number of Muslims filing charges and lawsuits alleging employment discrimination on the basis of religion, and noted the statistics and a few recent charges filed.

Now, Mará Rose Williams of the Kansas City Star has reported that what appears to be the largest employment discrimination jury verdict in Missouri history based religion was rendered in favor of a woman who converted to Islam and then experienced harassment by co-workers at Southwestern Bell/AT&T. Plaintiff contended that “Nobody ever cared what religion I was before,” but when she converted colleagues began to call her a “towelhead” and a terrorist, and asked her if she was going to blow up the building.

The jury awarded $120,000 in lost wages (and other actual damages), attorney fees and $5 million in punitive damages. The report notes, however, that Missouri law caps punitive damages at five times the actual damages.

Southwestern Bell/AT&T said it plans to appeal.
 

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On April 1^st we reported a sharp increase in the last year in complaints of employment discrimination based on religion filed by Muslims in one county in Pennsylvania. We also reported that nationwide, charges of religious discrimination jumped by 9.5 percent during the 2011 fiscal year, the largest increase of any category, according to the EEOC.

Ralph E. Stone has just noted in the Berkeley Daily Planet that “although Muslims make up only two percent of the U.S. workforce,” they filed nearly 25 percent of religious-discrimination claims in 2009. 

He then goes on to describe the nature of the discrimination claims:

“The increase in discrimination claims was predominately by Muslims, Arabs, South Asians, and Sikhs or Islamophobia. Most of the complaints alleged harassment and termination of employment.  Some typical workplace-discrimination claims include comments about praying in the workplace, calling an employee a terrorist or member of al-Qaeda, racial slurs, forbidding women from wearing the traditional head scarf or hijab, and refusing to shave a beard. And there have been cases where an employee was discriminated against because other employees mistakenly thought he was a Muslim.” 

The Dallas Observer reports that four Muslim just filed a Title VII case alleging that they were fired because of their ethnicity and religion. Plaintiffs, who received a “reasonable cause” determination from the EEOC, are suing International House of Pancakes claiming that despite repeated good performance reviews, they were fired as managers from IHOP locations in Plano, Fort Worth, Arlington and Burleson, and were allegedly replaced by white, non-Muslim managers.  Plaintiffs claim that one replacement told a meeting of managers that "Arab men treat women poorly and with disrespect[;] we're going to let these people go and have new faces coming in."

This trend is obviously one that should concern all Americans, not only employers.

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York County, Pennsylvania recorded 28 complaints of employment discrimination based on religion over the last 10 years.  In no year were there more than 2 such complaints from Muslims.  This has changed drastically in the last year, with the The Pennsylvania Human Relations Commission reporting 12 complaints based upon religion -- all by by Muslims -- between July 2011 and February 2012.   

The York Daily Record of March 31, 2012 noted that “Some observers trace prejudiced opinions toward Muslims to 9/11. Others blame the Republican presidential primary for ramping up the rhetoric.” 

On the newspaper’s web site as of 5 pm today, we noted that 3 out of the 4 posted comments expressed decidedly anti-Muslim bias. 

Nationwide, charges of religious discrimination jumped by 9.5 percent during the 2011 fiscal year, the largest increase of any category, reported the EEOC.

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A significant First Amendment religious freedom case which directly implicates the employment anti-discrimination laws was decided today by the Supreme Court. The issue placed squarely before the Court dealt with the tension between government and religion, the "wall” between them, and the possible “entanglement” between church and state.

In Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which we wrote about in our blog of October 6, 2011, the Court had before it a religious institution which employed a teacher who taught both secular subjects and a class in religion. She claimed to have a disability, and when she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination and because one of the tenets of the religious institution was that all disputes must be resolved internally and not in the courts.

At issue was the definition of “minister,” because” the “ministerial exception” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.”  As we noted earlier, at oral argument last autumn, the Supreme Court justices asked many questions trying to figure out the limits of the “ministerial exception.” Indeed, Justice Breyer stated that “This is tough and I’m stuck on this.”

Writing for a unanimous Court that upheld the rights of the religious institution as against the employee, Chief Justice Roberts held that the religious institution must be free to choose its own ministers without state involvement. He stated that  “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but also that “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”   

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The quietly slumbering area of religious discrimination has been thrust into the news lately. In our  blog entry for September 21, 2011, we noted the general principle that Title VII, 42 U.S.C. § 2000e-2, prohibits discrimination based upon, among many other things, religion.  That is, an employer cannot discriminate on the basis of religion in hiring, firing or the terms and conditions of employment. 

We then discussed the exemption from this religious anti-discrimination provision provided to religious organizations which are permitted to hire and employ only those who subscribe to their religious beliefs. 

Finally, we described that this exemption, while originally applying only to the religious or non-secular activities of the organization (so that, for example, the organization could not discriminate on the basis of religion against a receptionist who was uninvolved in the religious activities of the organization), is now applicable even to the receptionist, irrespective of the nature of the activities or tasks performed, secular or non-secular, under an amendment to the statute. 

An important case in this area was argued in the Supreme Court yesterday. In

Hosanna-Tabor Evangelical Church and School v. EEOC, the Court dealt with a religious institution which employed a teacher who taught both secular subjects and a class in religion. She claimed to have a disability, and when she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination and because one of the tenets of the religious institution was that all disputes must be resolved internally and not in the courts. The issue placed squarely before the Court the eternal tension between government and religion, the ”wall” between them, and the possible “entanglement” between church and state.

At issue was the definition of “minister,” because” the “ministerial exception,” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.” The specific question was whether the teacher in this case was a “minister,” and therefore precluded from filing or suing for disability discrimination. The lower appeals court decided that she was not because, it reasoned, she spent far more time teaching secular courses than religious courses. Other lower courts have come up with other diverse holdings.             

The Supreme Court justices peppered counsel with questions trying to figure out the limits of the “ministerial exception,” when Justice Breyer frankly stated “This is tough and I’m stuck on this.”  Counsel for the religious institution argued that an “ordained” minster was clearly within the exception, and that a teacher of religion should be within the exception because “the government does not set the criteria for selecting and removing officers of the church.” The EEOC responded that the government has a compelling state interest in making sure that people are free to file charges of illegality or civil wrongs with government agencies without fear of retaliation. Indeed, Justice Sotomayor asked whether "society has a right at some point to say certain conduct is unacceptable? And once we say that’s unacceptable, can and why shouldn’t we protect the people who are doing what the law requires, i.e., reporting it?”      

The ultimate decision in this case will likely be a significant one in this highly charged area of the law.  

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Title VII, 42 U.S.C. § 2000e-2, prohibits discrimination based upon, among many other things, religion.  That is, an employer cannot discriminate on the basis of religion in hiring, firing or the terms and conditions of employment. 

Claims of religious discrimination are growing fast given the political, cultural and social conditions existing in this country today. Employees making requests such as for time off for religious observance, for the right to wear certain garb, hair styles and tattoos, and for the right to refuse to participate in certain medical procedures have proliferated – and under the existing law, employees must be accommodated unless an undue burden is placed on the employer.  

Religion, however, is different from other bases of discrimination. There is an amendment to the United States Constitution, the First to be precise, which weighs in and essentially creates “a wall between Church and state” (although that “wall’ is currently under challenge by certain groups).   This “wall” prohibits, or at least mightily discourages, state intervention in non-secular affairs.  

Accordingly, there is an exemption from the religious anti-discrimination provision of Title VII provided to religious organizations, i.e., they are permitted to hire only those who subscribe to their religious beliefs.   (However, religious organizations may still not discriminate on the basis of gender, race, or national origin).   This exemption originally applied only to the religious or non-secular activities of the organization, so that, for example, the organization could not discriminate on the basis of religion against a receptionist who was uninvolved in the religious activities of the organization. 

An  amendment to the statute, however, made the exemption applicable even to the receptionist, irrespective of the nature of the activities or tasks performed, secular or non-secular. A court in 2000 held that the statute now means that an employer may fire an employee “whose conduct or religious beliefs are inconsistent with those of the employer.”     

A recent federal appellate court’s wrestling with a difficult situation involving religion is illustrative of the cases which are now being seen. The court was faced with a nursing facility operated by a Catholic order which fired a nursing assistant whose religion (Church of the Brethren) prescribed that she wear “modest” clothes and a hair covering. The employer contended that the employee’s dress “made residents and their family members uncomfortable,” but the employee claimed that “her attire was a function of her religious beliefs and that she would not change it.” She was terminated. 

The Court held that the firing was permissible under the statutory exemption described above, despite the employee’s claims of religious harassment and retaliation. Deciding specifically that the statutory exemption applied not only to hiring decisions but also to conditions of employment, the court quoted an earlier decision:

"Congress intended the explicit exemptions to Title VII to enable religious organizations to create and maintain communities composed solely of individuals faithful to their doctrinal practices, whether or not every individual plays a direct role in the organization’s 'religious activities.'"  

The court also took note of the intent of the statute that the government not to become entangled in religion and religious disputes, a point made by the trial court, which feared a trial at which time it would have been likely that there would be competing testimony about religious beliefs – something the courts are loath to entertain.  

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Given the current political and cultural ferment in this country, it should come as no surprise that claims of religious discrimination, long on the backburner in employment discrimination law, are increasing.  In fact, the EEOC reports a doubling of such filed claims in the last decade.

Under federal law, an employer must make reasonable accommodations for an employee’s religious beliefs unless it creates an undue hardship. Federal and local laws (and courts) have, up until now, kept the threshold of what was considered to be an undue hardship fairly low.  

The New York City Council, which has been in the forefront of strengthening employment anti-discrimination laws, recently voted to amend the city’s administrative code so as to raise this threshold well beyond the requirements of federal law.  Local Law Int. No. 632-A.   The result would be an increased burden on employers as to what constitutes undue hardship.

Currently, section 8-107(3)(b) of the City’s Human Rights Law provides little guidance.  It states that "reasonable accommodation" shall mean “such accommodation to an employee's or prospective employee's religious observance or practice as shall not cause undue hardship in the conduct of the employer's business. The employer shall have the burden of proof to show such hardship.”

The new law, entitled “The Workplace Religious Freedom Act,” will (if signed by Mayor Bloomberg) raise the bar by amending section 8-107(3)(b) to define “undue hardship” to be an “accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).”  The new law also specifies various factors that should be considered in making the determining as to whether an accommodation “constitutes an undue economic hardship.”

Mayor Bloomberg has scheduled a hearing on this bill.

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The EEOC has recently focused the spotlight on employers who refuse to make religious accommodations due to dress code or appearance policies.

In a well-publicized recent case filed by the EEOC (EEOC v. Abercrombie & Fitch) an Oklahoma jury awarded $20,000 in damages to an applicant for a job after Abercrombie & Fitch refused to hire her when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim.  Abercrombie argued that it had a strict "Look" policy in order to insure a unified "preppy" brand image. 

The EEOC, who has been focusing more in recent years on religious accommodation claims, recently filed a lawsuit against a Taco Bell franchise owner, Family Foods, Inc., (EEOC v. Family Foods, Inc.) alleging that its termination of a devout Nazirite due to his failure to cut his hair was religious discrimination.  Nazirites do not cut their hair as a sign of devotion to God. 

Although the suit was just filed and no decision has been made, one of the factual hurdles Family Foods will have to get over is the fact that the employee had worked for Family Foods for six years without cutting his hair before the company tried to enforce its appearance policy that required him to cut his hair.

These recent cases serve as a reminder to employers that just because they have a policy that prohibits certain things that could have religious significance like tattoos, piercings, long hair, head scarves, that may not be a reason to deny an accommodation. 

Under Title VII, a religious accommodation must be made as long as it does not provide an undue hardship.  It can get tricky determining what is an undue hardship under the law, so it is recommended to consult with counsel before making a blanket refusal of an employee's accommodation request.

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There have been a number of studies and cases filed recently which demonstrate, once again, that the workplace is merely a microcosm of society at large, and reflects the ever-changing tensions, fault lines and biases inherent in a diverse society.     

For example, despite the fact that Muslims make up only 2% of the United States population, religious discrimination claims made by Muslims to the EEOC in 2009 accounted for 25% of such claims. It is not difficult to understand that world and national religious and ethnic tensions become employment issues as biases that are aired on national news shows trickle down to the workplace.

A recent study by the Center for WorkLife Law at Hastings Law School in California, written by Stephanie Bornstein and entitled “Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers,” highlights the plight of low-wage workers, typically single parents, who must take care of ill or aged family members. Frequently these workers are former social service recipients who have entry-level positions, or hold down many jobs, and who get fired because they need to take time off as caregivers. Public policy aside, there are laws which protect such workers, such as the FMLA, under which employers have frequently been socked with big judgments by such workers. The report recounts such cases, and notes that the success rate for “caregiver discrimination lawsuits” is higher than other discrimination lawsuits, and that the average verdict in such cases is $500,000. Employers take note!

Finally, a suit that is the first of its kind has been filed in New Jersey by a transgendered man who was fired shortly after starting a job as a urine monitor at a drug treatment center – a position which is open only to men.  Neither sexual orientation nor gender status is a protected class under Title VII, and this lawsuit was therefore brought under state law.   See El’Jai Devoureau v. Camden Treatment Associates

As a postscript to the last point, it should be noted that although Title VII does not cover lesbian, gay, bisexual or transgendered employees as such, some employees have brought harassment suits claiming “gender stereotyping” as a form of discrimination based upon gender, and not sexual orientation nor gender status. However, such cases must fall within a very narrow set of facts – i.e., the claim must be that the employer’s adverse action was based not upon sexual orientation or transgendered status, but upon a failure by the employee to conform to gender stereotypes.   

See the following cases:

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Prowel v. Wise, 579 F.3d 285 (3d Cir. 2009)

Lewis v. Heartland Inns, 591 F.3d 1033 (8^th Cir. 2010)

Smith v. Salem, 378 F.3d 566 (6^th Cir. 2004)

Barnes v. Cincinnati, 401 F.3d 729 (6^th Cir. 2005)

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There are various federal statutory provisions commonly referred to as “conscience protection statutes” that apply to recipients of federal funds and prohibit recipients from discriminating against health care providers and/or employees who refuse, based on moral or religious grounds, to perform abortion or sterilization procedures. Specifically, the Church Amendments, the Weldon Amendment, and the newly enacted the Patient Protection and Affordable Care Act all contain anti-discrimination provisions.

Initially, the Church Amendments were enacted in 1973 on the heels of Roe v. Wade, which legalized abortion, to make clear that no health care provider who received federal funds was required to perform abortions or sterilizations. However, the second provision of the Church Amendments prohibits employers from discriminating against any physician or other health care personnel in employment, promotion, termination of employment, or the extension of staff or other privileges because the individual “performed or assisted in the performance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.”

Since the Church Amendments were passed into law, there have never been regulations enacted that interpret the Church Amendments. Notwithstanding the fact that the law had been on the books for thirty-five years, in 2008 the Department of Health and Human Services (“HHS”) decided to issue a notice of proposed rulemaking. Almost immediately numerous groups objected to the notice of proposed rulemaking. Most surprisingly, one of the groups objecting was the Equal Employment Opportunities Commission, which sent a letter objecting that the proposed rule was confusing and unnecessary and further, that the case law addressing accommodation of religious beliefs should simply be followed in cases brought by health care providers where violations of the Church Amendments were alleged.

The final 2008 rule implemented by HHS became the subject of litigation and in March 2009, there was a proposal to rescind the rule altogether. After two years of receiving and compiling nearly 300,000 comments, HHS gutted the final rule and rescinded all provisions except for the last provision. The amended final rule  now simply provides an enforcement mechanism for complaints of violation of the conscience provisions. According to the amended final rule that was issued on February 18, 2011 and will be published on February 23, 2011, complaints of violations of the Church Amendments may be filed with the Office of Civil Rights (“OCR”) in HHS. Conspicuously absent from the regulations is any indication as to how complaints will be evaluated. There is merely a statement that any complaints filed with OCR will be handled in coordination with the EEOC. So, after nearly three years of wrangling over the final rule, employers are still left with no guidance.

For now, it does appear that where an employee objects to performing an abortion or sterilization, an employer should treat the request to be excluded from those procedures as a request for a religious accommodation under Title VII (or applicable state law). Accordingly, those requests should be granted unless doing so creates an undue hardship for the employer.
 

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