Religious Discrimination

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When I get asked about non-discrimination and harassment prevention in the workplace, a significant proportion of these questions focus on race discrimination and sexual harassment.  Still, employers should be mindful of other protected characteristics under federal and state law, even if charges and lawsuits on those bases are, statistically speaking, less frequent than others.

While EEOC data show that charges alleging religious discrimination and harassment in the workplace constituted only 4% of charges received in fiscal year 2017, religious discrimination and harassment are prohibited by Title VII and pose significant liability risks to employers.  A lawsuit filed recently in federal court in Florida highlights this point.

Christine Choo-Yick was an employee of the US Customs and Immigration Enforcement agency within the federal Department of Homeland Security.  Ms. Choo-Yick is a person of Muslim faith.  While she also alleged sexual harassment, the allegations in her complaint primarily focus on harassment directed at her in the workplace on the basis of her religion:

8. [ . . . ] b.  Many of the Plaintiff’s co-workers have made derogatory and unethical comments about the Plaintiff’s faith and/or race.

c.  During the week of September 4, 2017, Officer Sean Stephens laughed at and criticized the Plaintiff for wearing a Hijab Muslim hair scarf.  He further stated, “what is that you have on your head,” while humiliating the Plaintiff with boisterous laughter.

d.  On or around October 10, 2017, a visiting employee called the Plaintiff a “Hijabist” and a “terrorist.”

e.  On or around November 2, 2017, a co-worker stated that the Plaintiff was a member of ISIS.

Needless to say, these alleged comments are abhorrent.  However, evidence suggests incidents like this are becoming more frequent.  A wide-ranging 2017 study by the Pew Research Center that found incidents of anti-Muslim discrimination in America are on the rise, with 48% of U.S. Muslims saying they were subject to at least one discriminatory incident based on their religion within the previous year.  In the same study, an estimated 75% of U.S. Muslims agreed that there is “a lot of discrimination against Muslims in the United States.”

Apart from the obvious issues of religious discrimination and harassment, comments of this type in the workplace may also implicate discrimination or harassment on the basis of race, color, and/or national origin under Title VII, depending on the facts.  Indeed, the potential for these issues to be intertwined prompted the EEOC to publish a reminder of employers’ obligations to prevent discrimination and harassment on each of these bases in the wake of the September 11th attacks.

The bottom line for employers: discrimination or harassment on the basis of religion is prohibited.  Period, full stop.  Employers’ policies, practices, and non-discrimination and harassment prevention trainings should be careful not to neglect this point.

28835398_sIn the last few weeks, there have been several religious holidays including Rosh Hashanah, Yom Kippur and  Eid al-Adha.  These holidays may have caused employees to request time off from work.  Employers are often confused about just how far they must go to accommodate an employee’s religious beliefs.  Does a religious accommodation mean that time must be given off with pay?

Generally, the answer to that question is no.  Although an employer may have to grant a reasonable accommodation of time off to observe a religious holiday, that time off can be without pay.  Of course, employers should be consistent with their policies with regard to paid time off.  If some employees are permitted to use vacation or other PTO time for absences due to a religious holiday, then all employees who are absent from work due to religious reasons should be similarly permitted to use paid time off.

What if an employer is closed for Christmas and pays employees for that day off, does that mean that other non-Christian holidays must be paid lest an employer face a religious discrimination claim? Again, the answer to that question is no.

Employers are permitted to choose which holidays the workplace will be closed and on which employees will be paid holiday pay.  In such a case, there is no discrimination against other religions simply because other religious holidays are not paid.  This is because an employee who chooses to be off work on any day where the office is not closed is faced with two possibilities — take unpaid time or use vacation or other paid time off.  This is true regardless of whether the employee is off to attend a child’s high school graduation or due to a religious observance.

 

There has been some immediate fallout from the Supreme Court’s gay marriage decision in Obergefell v. Hodges.  The decision has become a lightning rod for several Republican candidates who have denounced the decision on religious grounds.  Some, such as Ben Carson, have suggested that Congress pass a law protecting people’s religious views.  Of course, there are already several laws protecting people’s religious views, the First Amendment and the Religious Freedom Restoration Act of 1993 to name a few, but I digress.

19321926_sThe bigger issue and one everyone seems to be forgetting is that these types of “religious belief” arguments to justify discrimination have already been rejected by the Supreme Court.  The Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. seems to have opened the door for employers to argue that their religious beliefs conflict with certain legal requirements (in that case providing insurance coverage for contraception, but easily analogized to gay marriage).  However, in Hobby Lobby, Justice Alito specifically noted that religious beliefs could not be used to justify discrimination:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. . . . Our decision today provides no such shield.  The Government has a compelling interest in providing an equal opportunity to participate in the work force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

It is true that federal law does not explicitly protect sexual orientation.  However, as we have reported the EEOC has become increasingly focused on same-sex harassment and sexual orientation discrimination as a form of gender discrimination.  Further, many state and local anti-discrimination laws do define sexual orientation as a protected class.

This can be a confusing area for employers since Title VII and many state and local laws require that an employer accommodate a sincerely-held religious belief.  Quite simply, employers cannot justify an employee’s discrimination against gay people because homosexuality is against that employee’s religious beliefs.  Employees must still comply with anti-discrimination laws even if they have a religious objection to homosexuality.

23337822_sToday the U.S. Supreme Court reversed a decision by the Tenth Circuit Court of Appeals that had previously held that Abercrombie could not be held liable for not accommodating an applicant who wore a head scarf to her interview but never mentioned her Muslim faith.  The Tenth Circuit had accepted Abercrombie’s argument that the mere fact that she wore the hijab to the interview did not mean it was aware that she needed an accommodation of Abercrombie’s “Look Policy.”

The Tenth Circuit had held that where an accommodation is requested for religious reasons, an employer must not only be aware of the need for an accommodation but also that it was due to a particular religious faith.

In today’s decision in EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court noted that knowledge of the need for an accommodation is not necessary but simply must demonstrate that an applicant’s need for an accommodation was a motivating factor in the employer’s decision.  This may seem confusing without reading the opinion in full.

I mean, how can an accommodation be a motivating factor if the employer did not know of the need for an accommodation?

Once you dig into the Court’s reasoning, the decision is actually more common sense than it appears on its face.  In short, whether an employee knows of a need for accommodation or simply assumes that one might be necessary, if the desire to avoid accommodating that practice is a motivating factor in not hiring the applicant, then that is a violation of Title VII.

To understand the Court’s decision, a brief review of the facts is helpful.   Samantha Elauf applied for a position with Abercrombie.  At the interview, Ms. Elauf wore a head scarf.  There was no discussion during the interview about the head scarf or whether she wore it for religious reasons.  After the interview, the manager who interviewed her, Heather Cooke, was concerned that the head scarf violated Abercrombie’s “Look Policy” which prohibited the wearing of caps.  When Ms. Cooke consulted with the District Manager, she advised that she thought that Ms. Elauf wore the head scarf for religious reasons.  The District Manager advised that the head scarf would conflict with the Look Policy and Ms. Elauf was then rejected for the position.

In its analysis the Supreme Court noted that the disparate treatment provision of Title VII forbids employers from failing to hire an applicant because of religion. Thus, the provision prevents religion from being a motivating factor in an employer’s decision not to hire an applicant.

When viewed in this light, today’s decision is not so different from cases interpreting the disability portions of Title VII.  For example, if an applicant who came into an interview for a position involving physical labor had a limp, the employer assumed because of the limp that the employee would need accommodations, and the employer did not want to create light duty positions so it rejected the applicant, it is not hard to see how this would be disability discrimination due to the assumption alone.

In this case, Abercrombie assumed (correctly) that Ms. Elauf wore the head scarf for religious reasons and as such would need an accommodation from its Look Policy.  Since Abercrombie’s sole reason for not hiring her was that it did not want to create an exception to the Look Policy, Ms. Elauf could show that her need for an accommodation was a motivating factor in the decision not to hire her even though she had never specifically asked for an accommodation.

Today’s decision is not so broad that it means that not having knowledge of a need for an accommodation may never be a defense.  If the employer has neither knowledge of nor an assumption that a religious practice requires an accommodation, an employer may still be able to raise a defense to a failure to accommodate claim.  For example, if an employee comes to a manager and simply requests time off without giving a reason why, it may be possible to argue that the cannot show that the denial of the time off was on account of his or her religion.

Employers should keep this decision in the backs of their minds when evaluating such requests.  If, for example, an employee is telling you that he or she cannot work any Friday after 4 pm, then a prudent employer should at least ask why before denying the request.  It is possible that the employee, who is Jewish, is making the request so that he or she can observe the Sabbath, or that the employee has a second part-time job that is scheduled for every Friday evening.  In the first scenario, the employer will have to evaluate whether it can reasonably accommodate the employer.

8081950_sSometimes when I counsel employers they ask why they cannot just take an ostrich approach, i.e., stick their head in the sand and not go looking for issues.  The problem with that approach is that, given my example above, it is not hard to imagine that an employee would claim that the manager was aware that he or she was Jewish and thus, should have assumed that the request was related to an observance of the Sabbath.  That then becomes a factual issue that is likely not going to get resolved on summary judgment.

This week the United States Supreme Court heard arguments in a case that we have previously reported on that was filed against Abercrombie & Fitch.  In that case, a Muslim teenager applied for a job and was denied the job because she wore a head scarf which the hiring manager believed did not coincide with the company’s “look” policy.  It is always dangerous to try to predict how the Supremes are going to rule simply based on the argument.  News outlets have varied in how they believe the Justices’ comments may foreshadow the outcome.  If you want a simple factual retelling of the argument the Christian Science Monitor‘s article is one of your better bets.

The fact that the Supreme Court may rule in the teen’s favor does not necessarily mean that employers cannot have dress codes.  It will likely mean that employers need to follow existing guidance that accommodations may need to be made for religious beliefs.

Indeed, there are lots of things that employees may wear at work that would make an employer cringe and justify the imposition of a dress code.  If you don’t believe me, check out today’s 5 minute laugh video:

 

 

 

Small WorldThe recent measles outbreak making headlines at Disney properties in California has been unnerving, to say the least. As any parent can attest, a visit to Disney is likely to be on someone’s wishlist at some point (as my two small children have already made clear!). Beyond planning a visit to see Mickey and Minnie, managers and HR professionals should also be cognizant of the disease’s spread, recently to New York, and be savvy to their obligations and restrictions vis-à-vis vaccinations and medical leave.

Must an employer require their employees to be vaccinated against measles? Generally, no, absent some specific health or safety regulation that may govern a particular industry in a particular jurisdiction (e.g. healthcare workers/first responders). For most employers, this is not an issue.

May an employer require employees to be vaccinated against measles? This is where things get tricky. There is nothing that would per se prevent requiring employees to be vaccinated against measles in order to work. However, dangers abound. Federal, state and local anti-discrimination provisions may require exceptions, primarily for religious and/or medical reasons. If the employee is in a high risk occupation, such as emergency medical services, the law provides more leeway, however each employer’s situation needs to be analyzed on a case-by-case basis.

A concerned employer could, alternatively, offer voluntary measles vaccinations, free of cost, which would provide employees some level of so called “herd immunity.” However, remember, you generally cannot ask about or disclose an employee’s vaccination status due to various privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA) and the Americans with Disabilities Act (ADA). Proper consent forms should also be obtained through an authorized vaccination provider.

If an employee does contract measles, it may be reasonable and/or required to force an employee to stay home (preferably on paid leave) until they are healthy to avoid its spread in the workplace. Depending on the employer’s size, Family and Medical Leave Act (FMLA) protected leave must also be offered and appropriate FMLA notices given. Confidentiality regarding the employee’s medical status must also be maintained and any discriminatory employment actions avoided.

As always, we recommend giving your friendly local labor and employment attorney a call to discuss the complexities of any particular issues you may have.

We previously reported that the EEOC had filed suit against United Health Programs of America Inc. after workers alleged that they were forced to say “I love you” to co-workers on account of their employers’ beliefs in “Onionhead.”  The suit also alleges that employees were forced to engage in prayer, wear Onionhead-related pins, and burn candles in the workplace.  (Just in case any of you were confused, we really meant Onionhead; this is not a fake news post from the Onion.)

35103496_sUnited Health Programs of America Inc. asked for permission to file a motion in federal court to bar the EEOC from contacting its employees.  The motion alleges that employees were sent a letter that laid out “skewed facts” and seemed to imply that a response to the letter was mandatory.  According to the motion, if employees did not respond to the letter, they were called by the EEOC and sent a follow-up letter.

It will be interesting to see how the Court rules on the motion.  If the allegations in the motion are true, then employers should be aware that the EEOC may employ aggressive solicitation methods.  Of perhaps bigger concern for employers is how to respond to employees who complain about being contacted by the EEOC.

Employers cannot tell employees that they must not cooperate with the EEOC lest they face claims that they interfered with the employees’ rights to report discrimination.  Employers can, however, tell employees that they do not have to cooperate with the EEOC if they do not wish to do so.  It is also fine to tell employees that if they do speak with the EEOC, that they should tell the truth.  Employers should be careful to also let employees know that no action will be taken against the employee if the employee chooses to speak with the EEOC.

OK, so we engaged in a little Page 6 headline hyperbole – the Nuns were not literally “tossed out” of the court, but just had their discrimination claims  dismissed.  But the case is important, and we wanted to catch your eye.

A major issue for employers these days is whether individuals are employees or independent contractors.  There are serious employment and tax consequences inherent in this distinction.  In that regard, we commend for your edification a new federal appeals court decision which dissected this issue and discussed it at length in the course of an interesting case involving two altruistic Catholic Nuns.

See:  http://laborandemploymentlaw.bna.com/lerc/2440/split_display.adp?fedfid=59126599&vname=lefepcases&split=0

nuns : Two attractive young nuns with rosary and bible praying

In that case, the two Catholic Nuns were disaster relief volunteers for the American Red Cross and the [Ohio] Ross County Emergency Management Agency for extended periods of time.  As the Court noted, they “dedicated their lives to assisting the poor and serving the good of the community.”

After some issues with management at both places, they filed a Title VII case (and also claims under Ohio law), claiming religious discrimination, retaliation, and harassment, as well as Section 1983 violations of their constitutional rights to free speech, free exercise of religion, and equal protection under the law.

The issue framed by the Court was:  “Under what circumstances are volunteers protected from employment discrimination by Title VII? … The parties agree that the critical issue is whether the Sisters were ‘employees’ of the Red Cross or RCEMA.”

In summarizing the relevant facts (followed by a long discussion), the Court held that the Nuns “have not shown that they received compensation, obtained substantial benefits, completed employment-related tax documentation, were restricted in their schedule or activities, or were generally under the control of either organization through any of the other incidents of an agency relationship. … Therefore, their volunteer relationship does not fairly approximate employment and is not covered by Title VII. Nor, as will be explained, were the Sisters’ constitutional rights violated.”

The Court goes through all of the relevant factors which distinguish employees from independent contractors, as well as discussing the status of “volunteer.”

Worth a read.

Slate reports that the creator of “a Noah’s Ark–themed creationist amusement park” in Kentucky – an “Ark park” — (the same person who created the Creation Museum) has instituted a hiring policy which requires applicants to sign three documents before being hired: a “Salvation testimony,” “Creation belief statement,” and a “Confirmation of your agreement with the AiG statement of faith.”  Slate notes that “AiG is Answers in Genesis, Ham’s ministry and Ark Encounter’s parent company.”

Noah's ark : Noah s Ark cartoon

As Slate puts it, “The park is quite openly instructing all applicants to pledge that they personally believe in creationist Christianity. If an applicant has other beliefs, her application to Ark Encounter isn’t welcome. … AiG’s statement of faith is no mere loyalty oath: It’s a four-part theological declaration mandating that all signatories accept dozens of fundamentalist Christian principles.”

Does this discriminate on the basis of religion, in violation of Title VII?  I mean, a very religious pre-req for hiring which excludes all non-believers?

Before you jump to conclusions, consider whether the job involves religious doctrine, such as teaching creationism or being a religious guide to the various amusements and events.   If so, your conclusion might be different if you then considered the “ministerial exception.”

The Ministerial Exception

The “ministerial exception” is written into Title VII, and states that:

“This subchapter shall not apply to an employer with respect to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

Put simply, a religious insitution can avoid the anti-discrimination employment laws with respect to employees performing religious-related, or ministerial, functions.

Read the Supreme Court’s key decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which 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 the 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.   See our earlier discussion of this case.

Is this amusement park a religious insitution? Is it required to be to be entitled to the “ministerial exception?”

But What If Public Money Is Involved?

But consider this wrinkle:  The Ark could not obtain all the necessary financing so he turned to public funding.  Slate notes that “Kentucky’s Tourism Development Finance Authority gave preliminary support for $18.25 million in tax credits for Ark Encounter, citing [the creator’s] promise that the project would create 600 to 700 jobs.  … ultimately, the state could grant Ark Encounter up to $73 million in tax breaks.”

So, is using taxpayer money and discriminating in hiring on the basis of religion legal?

The Kentucky agency which oversees tax incentives stopped funding the project because of the discriminatory hiring issues:  “the Commonwealth does not provide incentives to any company that discriminates on the basis of religion and we will not make any exception for Ark Encounter, LLC.”

In response, Ark Encounter’s executive director said that the state was “requiring us to give up our religious freedom and our religious rights.”

Any comments?

 

 

Way back on July 29, 2011 we wrote that an Oklahoma jury had awarded $20,000 in damages to a devout Muslim job applicant refused hiring by Abercrombie & Fitch when she appeared for an interview wearing a headscarf, or hijab, which she wore for religious reasons.  Abercrombie & Fitch argued that it has what it calls a “look policy,” which it strictly enforces, which is necessary, it claims, to insure a unified “preppy” brand image.

An EEOC lawyer said at the time that “U.S. District Courts are finding that Abercrombie cannot establish an undue hardship defense to the wearing of hijabs based on its ‘Look Policy.’   This is a clear victory for civil rights.”

Not so fast — an appeals court later reversed this decision!

But wait — the United States Supreme Court has just issued a rare writ and has agreed to hear the EEOC’s appeal, and the betting line is that A&F’s “look policy” may go down.

Why?

hijab : Young asian muslim woman in head scarf smile isolated white

First a little background.

Grooming Policies and Title VII

We have written before 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.

Abercrombie & Fitch’s Win On Appeal

Abercrombie & Fitch appealed the Oklahamo case, and in a 76-page decision, the federal court of appeals reversed the summary judgment ruling that preceded the jury trial, so that the jury verdict was vacated, and judgment was entered in favor of Abercrombie & Fitch.

abercrombie : Abercrombie Fitch store on Pine Street next to the Century Square Street Clock on May 19, 2007 in Seattle, Washington The clock was built by E Howard

The Court held, in sum, that the employee in that case never informed Abercrombie & Fitch prior to her hiring that she wore a hijab for religious reasons and required an accommodation.

The Court stated that:

“we resolve a question vigorously contested by the parties: specifically, whether, in order to establish a prima facie case under Title VII’s religion-accommodation theory, a plaintiff ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice, due to a conflict between the practice and the employer’s neutral work rule. We answer that question in the affirmative.”

Abercrombie & Fitch Loses A Different Case

In a separate case brought by the EEOC, a federal judge ruled against Abercrombie & Fitch on behalf of a Muslim stockroom employee in California who was fired for wearing a headscarf, or “hijab.”

The Court dismissed the company’s defense of “undue hardship” — that “the Look Policy goes to the ‘very heart of [its] business model’ and thus any requested accommodation to deviate from the Look Policy threatens the company’s success,” finding no legitimate evidence of this.   The company then settled this case (and another similar one) for $71,000.

The Supreme Court Has Just Granted Cert To The EEOC

The big news today is that the Supreme Court has just agreed to hear the EEOC’s appeal as to whether Abercrombie & Fitch’s “look policy” as applied to the hijab-wearing Muslim woman violates Title VII.

Even ignoring the merits of the appeal, the fact that the Court has agreed to hear a case in which the immediately lower court ruled against the EEOC gives some of us a clue that a reversal will occur.

But we shall see.