Ch10 Religious Discrimination.docx

Religious Discrimination Chapter Objectives: The objectives in this chapter are to make the student aware of the ways in which religious discrimination arises in the workplace, what the law requires, and how to avoid liability. When finished, the student should understand the requirements and limitations of the law regarding religious discrimination and how to avoid liability in this area. Scenarios - Points for Discussion Scenario 1: In his pre-employment interview, Mosley stated that he would not work on Saturdays because that is the day of his sabbath. As a result, he is not hired. Is this religious discrimination? Yes, this is religious discrimination against Mosley if the employer did not try to reasonably accommodate Mosley's religious conflict. If the employer did so, and no accommodation could be found, there would be no liability. Scenario 2: Three months after coming to work for Steel Bank, Joi joins a religious group whose sabbath is on Tuesdays. Members of the religion are not to work on the sabbath. Joi refuses to work on Tuesdays. She is terminated. Joi sues for religious discrimination. The employer defends by saying that (1) Joi was not of this religion when she was hired (2) Tuesday is not a valid sabbath day and (3) any religious group which celebrates a sabbath on Tuesday is not a valid religion and the employer does not have to honor it. Are any of these valid defenses? No, none of the employer's defenses are sound. (1) Joi need not have been of affiliated with this religion when she was hired by the employer in order for the employer to have the duty to reasonably accommodate imposed. It does not matter when the employee began the religious endeavor. (2) The employer may not judge the practices of a particular religion, such as when that religion practices its sabbath. (3) The employer may not judge the validity of the religion. As long as it is a closely held belief which has the place of religion in the employee's life, the employer has to treat it just as any other religion. Scenario 3: A supervisor tells a SIKH employee that his religiously mandated turban makes other employees uncomfortable and he must stop wearing it. Must he? No, the discomfort of other employees is not a sufficient basis for making the SIKH employee violate his religious mandates. Posings and Imposings 1. Freedom of religion has always been highly valued and closely held and has enjoyed a protected position in American law. See Exhibit 10-1 for an idea of world religions and Exhibit 10-2 to get an idea of the different religions in the U.S. 2. Title VII embodies this in the employment arena by prohibiting discrimination in employment based upon religion--either its practices or beliefs. 3. While litigation on the basis of religious discrimination does not occur as frequently as some of the other categories, or may not have as high a profile, it is just as important a concern for employers. 4. Federal and state constitutional guarantees of due process, equal protection, and freedom of religion also provide protection for federal, state and local government employees. 5. If the employer is a governmental entity, the employer must avoid workplace policies which have the effect of tending to establish or of interfering with the practice of the employee's religion. 6. Title VII is the only legislation specifically prohibiting religious discrimination in employment and there is consideration given to constitutional issues where necessary. 7. Unlike the other categories included in Title VII, there is not an absolute prohibition against discrimination on the basis of religion. Rather, for the first time under Title VII we see that the category of religion has built into it a duty to reasonably accommodate the employee's religious conflict unless to do so would cause undue hardship on the employer. 8. There is no such reasonable accommodation requirement for race, gender, color or national origin, but there is under the Americans with Disabilities Act (ADA) as we shall see. 9. To a great extent, religious organizations are exempt from the prohibitions in Title VII. 10. As a general rule, they can discriminate so that, for instance, a Catholic church may legitimately refuse to hire a Baptist minister as its priest. That is, religion is recognized as a possible basis for a BFOQ reasonably necessary to the normal operation of that particular business or enterprise under section 703 (e)(1) of Title VII. 11. If the church has sectarian activities such as running a day care center, bookstore or athletic club, which in no way involves religion, it may not enjoy the same broad type of freedom to discriminate since these activities do not necessarily have religion or propagation of the religion as an integral part of their activity. Case Examples: Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987). Issue: Whether it violates the U.S. Constitution’s Establishment Clause for an employee to bring a cause of action for religious discrimination under Title VII after being terminated from his non-religious job with a church-owned corporation for failure to qualify as a church member in good standing. Facts: A nonprofit gym open to the public and run by the Mormon church discharged a 16-year building engineer because he failed to qualify for a temple recommend, that is, as a member eligible to attend its temples. Temple recommends are issued only to those who observe the church’s standards in such matters as regular church attendance, tithing and abstinence from coffee, tea, alcohol and tobacco. The employee sued the church for religious discrimination and the church defended on the ground that they are exempt from Title VII’s religious prohibitions. The employee believed that to apply the law to the exemption violates the Establishment Clause. Decision: Under section 702, Title VII ‘s prohibitions against discrimination in employment on the basis of religion does not apply to a religious corporation, association, educational institution or society with respect to those of a particular religion employed to perform work connected with the carrying on of that religion. The Court said it long recognized that the government may and sometimes must accommodate religious practices without violating the Establishment Clause. “Benevolent neutrality” permits religious exercise to exist without sponsorship and without interference. The religious exemption is to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions. Though the employee argued that there was no such purpose here, the court said that it would be burdensome for religions to have to define which of its activities a secular court will consider religious and the fear of potential liability might affect the way an organization carried out it’s understanding of its religious mission. Under the Lemon v. Kurzman test, the provision (section 702 exempting religious organizations from Title VII) must have a permissible secular purpose of assuring it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions, which is true here. Secondly, the law must have “a principal or primary effect that neither advances nor inhibits religion.” Here, government has not advanced religion through its own activities and influence. As applied to the nonprofit activities of religious employers, the exemption is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions. Case Questions 1. Are you surprised by the outcome of this case? Why? Student response. 2. As a church employer in your religion, what reason would you give for requiring that the building engineer be of the same religion? Student response. 3. Are you able to draw a bright line between excessive interference with church business and the government wanting to ensure employment protection for all? Explain. Student response. LECTURE NOTES Section 703(e)(2) of Title VII states that it is not an unlawful employment practice for a school, college, university, or other educational institution to hire or employ employees of a particular religion if the institution is in whole or substantial part owned, supported, controlled or managed by a particular religion or by a religious corporation, association or society or if their curriculum is directed toward the propagation of a particular religion. 13. The more frequent basis for lawsuits is that an employee is not hired or is terminated because of some religious practice which comes into conflict with the employer's workplace policies. The employee may wish not to work on a particular day, as it is the employee's sabbath. Or the employee may wish to dress a certain way for religious reasons, or to take certain days off for religious holidays or observances. 14. Frequently the employer discovers religious information through questions on an employment application or during a pre-employment interview which relate to notifying a religious figure or taking employee to a particular hospital in the event of on the job injury. To eliminate the appearance of illegal consideration of religion in hiring, employers should instead ask the specific and necessary questions, and do so only after hire. What is "Religion"? 1. Title VII originally provided no guidance as to what it meant by the word "religion". 2. In the 1972 amendments to Title VII, Congress addressed the issue. In section 701 providing definitions for terms within Title VII, section (j) states that "The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business." 3. The question frequently arises "What if I never heard of the employee's religion. Must I still accommodate it?" The answer is based upon two considerations: whether the belief is closely held and whether it takes the place of religion in the employee's life. The latter requirement means that even atheism has been considered a "religion" for Title VII purposes. See Exhibit 10-3 for such a workplace situation. 4. The religious belief need not be a belief in a religious deity as we generally know it. 5. However, courts have determined that groups like the Ku Klux Klan are not religious organizations even though their members have closely held beliefs. 6. The employer need not previously know of, or have heard of, or approve of the employee's religion in order to be required to accommodate it for Title VII purposes. 7. The employer cannot question the sincerity of the belief merely because it may appear to the employer to be unorthodox. The duty to accommodate the religious conflict arises whenever the conflict arises. It does not matter that the employee did not have the conflict when hired. Case Example: Frazee v. Illinois Dep't. of Employment Security, 489 U.S. 829 (1989) Issue: Whether an employee must belong to a particular religious organization in order to claim religious discrimination. Facts: Unemployment compensation was denied to an applicant who refused a temporary retail position because he would not work on Sunday's for religious reasons. Though he considered himself to be a Christian and did not want to work on the Sabbath, he did not belong to a particular religious organization and was therefore denied benefits. Decision: For employee. The Court held that the fact that the applicant did not belong to a particular religious organization did not mean he could not claim his religious freedom had been abridged in violation of the law prohibiting abridging freedom of religion. It is the closely held belief which is protected, not simply how it is exercised. Case Questions 1. As the employer here, how could you stay within the law and still have a policy in the best interest of your company? By treating all religious conflicts as legitimate and attempting to accommodate them. If, after legitimate attempts to do so, it is unable to be done, the employer would have satisfied his or her duty under the law. 2. If you were Kelly Services, what would you have done to avoid a conflict with Frazee? Possibilities are checking to see if I could arrange for him to work on days other than Sundays; checking to see if other employees were willing to switch with him if he was assigned a Sunday job; if no one wanted to switch with him, looking into the feasibility of hiring someone else for Sundays. 3. As an employer, would you be concerned about how you could tell when an employee had a right to be protected under the law and when an employee was simply trying to get out of work? What would you do about it? Student response. LECTURE NOTES Religious Conflicts 1. Workplace conflicts between an employee’s religious beliefs and workplace policies is probably the most frequent type of religious discrimination case. For instance, the employer may have a no-beard policy and the employee’s religion forbids shaving his beard. 2. The conflict can also come about because of the employer’s religious beliefs. See Exhibit 10-3 in which an atheist employee was required to attend workplace religious services at the manufacturing plant at which he worked. 3. As more and more different types of employees come into the workplace, this conflict can become more frequent and employers must be attuned to them. 4. Once an employer is aware of a religious conflict, the employer must make a good faith attempt to accommodate the conflict and the employee must assist in the attempted accommodation. 5. If no accommodation can be worked out without undue hardship on the part of the employer, the employer has fulfilled his or her Title VII duty. Case Example: Goldman v. Weinberger, 475 U.S. 5032 (1986). Issue: Whether it is a violation of the First Amendment right of freedom of religion for the military to prohibit a Jewish Air Force member from wearing a yarlmuke in exercise of his religious belief. Facts: Simcha Goldman, an orthodox Jew, ordained rabbi and member of the Air Force, challenged the Air Force regulation mandating uniform dress for Air Force personnel because it did not permit him to wear a yarmulke with his uniform. Goldman was in the Armed Forces Health Professions Scholarship Program and was placed on inactive reserve status while he studied clinical psychology at Loyola University of Chicago for three years. After completing his PhD, he entered active service in the Air Force as a commissioned officer in accordance with a requirement that participants in the scholarship program serve a year of active duty for each year of subsidized education. From 1976 to 1981 Goldman was not prevented from wearing a yarmulke on the base and to prevent controversy, remained close to his duty station in the health clinic and wore his service cap over his yarmulke when outdoors. In 1981, he testified as a witness at a court martial wearing his yarmulke and no service cap. Opposing counsel lodged a complaint, saying this was a violation of military dress regulations. Eventually, Goldman received a letter of reprimand and was warned that failure to obey the Air Force regulation could result in a court martial. The Court said that their review of military regulations is “far more deferential” than those in civilian society. “The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and espirit de corps. The essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.’” While this does not nullify the First Amendment, when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. The courts are ill-equipped to determine the impact upon discipline that any intrusion upon military authority may have and the military has been charged by the executive and military branches with carrying out the nation’s military policy. The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. Uniforms encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except those of rank. The 190-page Air Force policy on the uniform authorizes a few individualized options, but even these are subject to severe limitations. The Court said Goldman’s arguments that the yarmulke would not present a clear danger, a challenge to espirit de corps or a challenge to discipline are beside the point since the military authorities have decided appropriate dress and they are under no constitutional mandate to abandon their professional judgment. The First Amendment does not require abandoning the policies if they detract from uniformity. Decision: No, it is not a violation of the freedom of religion for the military to prohibit a Jewish Air Force member from wearing a yarlmuke in exercise of his religious belief. The court said the Air Force’s strong interest in discipline justified the strict enforcement of its uniform dress requirements. Case Questions 1. Do you agree with the Court’s decision? Explain. Student response. 2. What do you think of Goldman’s argument that wearing the yarmulke will help morale? Does that seem a valid argument for permitting the apparel exception? Student response. 3. Can you think of other types of clothing that people may want to request to wear as part of their religious practice that may present the same situation as here? Do you understand why it should not be permitted? Explain. Student response. LECTURE NOTES 1. This case presents a conflict between religious practice and work. 2. The case also gives us a chance to see how the U.S. Supreme Court handles Title VII-type matters when the military is involved. They give them a very wide berth and generally defers to them to facilitate the military’s need for good order, espirit de corps, morale, cohesion and unquestioning obedience. 3. It is also a demonstration that the freedom of religion is not absolute and, as in Goldman, may be overridden when there are other considerations, such as the military. 4. It is only religious conflicts which are protected by law. However, not every conflict an employee attempts to have resolved is a religious conflict. Case Example: Lumpkin v. Jordan, 49 Cal. App. 4th 1223 (CA. 1996) Issue: Whether a minister who makes public religious statements about the subject matter of a commission he serves on, that are at odds with the work of that commission, has a religious conflict which must be accommodated under the state’s anti-discrimination law. Facts: A minister who was a member of the San Francisco Human Rights Commission made statements to the press indicating that he believed, based on his religion, that homosexuality was an abomination against God and gays should be put to death. Part of the Commission’s mission was to hear complaints of discrimination against gays and lesbians. The minister was eventually removed from the Commission by the mayor. The minister sued, alleging discrimination based on his religious beliefs in violation of the fair employment practice law and the Free Exercise Clause of the Constitution. Decision: The minister’s removal did not violate his rights under the Free Exercise Clause and the mayor’s interest in preventing disruption of the goals of his administration in promoting good will toward all people outweighed the minister’s right to religious expression. The minister’s remarks, as a policy maker with the mayor’s administration, could have been interpreted as undermining the Commission’s own policies. Case Questions 1. Do you agree that this case was not about religious discrimination? Explain. Student response. 2. Can you think of some other way to have handled this matter? Explain. Student response. Note for the students the impact that matters other than the substance of the conflict can have on the conflict itself. Here, the politics of having someone on the Commission who had expressed such views, up to and including the death of those of a given group the Commission was to protect, outweighed whatever decisions the minister may have rendered as a member of the Commission (the mayor said the minister had “a solid and unambiguous record as a member of the commission, and as a commissioner, had protected and advanced gay and lesbian civil rights”). 3. Do you agree with the minister that he could continue to do his job with no problems, despite the feelings he expressed to the media? Explain. Student response. Again, factors other than the substance of the situation can impact it. With the statements the minister made, he might now find it difficult to continue to render decisions which “protected and advanced gays and lesbian civil rights” if those who took his public press statements literally protested that his Commission decisions did not seem to be consistent with his comments. The Employer's Duty to Reasonably Accommodate 1. Unlike the other categories under Title VII, the prohibition against religious discrimination is not "absolute". An employer can discriminate against an employee for religious reasons if to not do so causes the employer undue hardship. 2. When the employer discovers a religious conflict between the employer's policy and the employee's religious belief, the employer's first responsibility is to attempt accommodation. 3. If it happens that accommodation is not possible, the employer can implement the policy even though it has the effect of discriminating against the employee on the basis of religion. 4. Due to the nature of religious conflicts and the fact that they can arise in all types of contexts and in many different ways, there is not one single action an employer must take in order to show that she or she has reasonably accommodated conflicting religious considerations. It depends upon the circumstances and will vary from situation to situation. For example: ? The employer owns a sandwich shop. The employer's policy is that employment entitles employees to eat all the restaurant food they wish during their lunch break. Employee's religion does not allow eating meat. Aside from the meat used for sandwiches, the employer has little else other than sandwich trimmings like lettuce and tomatoes. The employee alleges it is religious discrimination to provide as part of employment benefits lunch the employee cannot eat for religious reasons while other employees receive as a benefit full free lunches they can eat because there is no religious prohibition. The duty to accommodate may be as simple as the employer arranging to have peanut butter and jelly, eggs, or a variety of vegetables available for the employee. ? The employer requires employees to work six days per week. One employee cannot work on Saturdays due to a religious conflict. The accommodation may be that the employee switches days with an employee who does not wish to work on Sundays--a day that the employee with the religious conflict is available to work. ? Employer grocery store has a policy requiring all counter clerks to be clean-shaven in order to present the employer's view of a "clean cut" image to the public. Employee cannot shave for religious reasons. The accommodation may be that the employer switches the employee to a job the employee can perform which does not require public contact, such as stocking shelves or handling paperwork. Case Example: Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir. 1995) Issue: Whether an employee who refuses to modify her religious activity at the request of the employer, even after being told of its negative impact on other employees, and being offered alternatives, has been sufficiently accommodated so that Title VII is not violated. Facts: The employee wore an anti-abortion button to work at all times. The button contained a graphic color photo of a fetus and was very disturbing to other employees. The employer requested that the employee limit the times she wore the button, cover it up when she was with other employees, leave it in her office, or otherwise modify her actions to decrease the negative impact on other employees who lost time away from working dealing with the button and its impact, which was often reminiscent of non-abortion issues. The employee refused the suggestions and said she wore the button based on her religious beliefs of being a “living witness.” She was eventually terminated. Employee sued for religious discrimination, alleging she was not reasonably accommodated. Decision: The court held that the employer’s actions were not in opposition to the employee’s religious beliefs, but rather, were out of concern for the photo on the button and its impact on other employees, many of whom felt the same way the employee did about abortion. The court found that the employee’s religion did not require her to be a “living witness” and the three offered accommodations did not require her to abandon her religious beliefs as the employee argued. The court held that the employer had reasonably accommodated the employee’s religious beliefs. Case Questions 1. What do you think of the co-worker reaction to Wilson’s button? Does it seem reasonable? Explain. Student response. Note that the reaction was not purely based on the abortion issue, but also that the graphic photo reminded some employees of other things that may have been traumatic experiences in their lives. 2. What do you think of Wilson’s response to her supervisors that those who did not like the button should simply be told not to look at it? Does this seem to be a reasonable response for the employer to make? Explain. Student response. Discuss with students the issue discussed later in the affinity orientation chapter of where an employer is to draw the line with employee discomfort, and how that line is determined. The employer’s response of telling the employees not to look at it may be reasonable for some situations, but with one like this, involving a graphic photo, that may not be sufficient. For instance, there could have been an employee who, because of the button, is constantly reminded of the carnage of a gruesome murder of a family accident or car accident involving a loved one. As employers responsible for a work product, part of which is determined by the efficiency of our workers, such matters may become important, but must be weighed with the law’s requirements as to discrimination. 3. If you were the employer here, what would you have done about Wilson? Student response. Case Example: Williams v. Southern Union Gas Co., 529 F.2d 483 (10th Cir. 1976) Issue: Whether it is religious discrimination in violation of Title VII for an employer to not accommodate an employee's religious conflict if an accommodation satisfactory to the employee cannot be found? Facts: Employee was terminated for not working on Saturday. His reason for not doing so was that it was against his religion to work on his Sabbath. It was a company policy that all employees should be available for work seven days a week 24 hours per day inasmuch as it was a public utility and was obligated to provide continuous and uninterrupted natural gas service to the general public. With no one else who could take his place, employee refused to work on a Saturday when he was needed and was terminated. Decision: For the employer. The court found that accommodating this religious conflict would cause the employer an undue hardship, therefore the termination did not violate Title VII. The phrases "reasonably accommodate" and "undue hardship" are relative terms and cannot be given any hard and fast meaning. In a sense the case boils down to a determination as to whether Southern Union acted reasonably under all the circumstances. On the one hand it had a duty to at least try to accommodate Williams' religious practices. On the other hand it also had a duty not only to serve the consuming public on a continuous and uninterrupted basis but also to adhere to employment practices that were fair to its other employees. In our view Southern Union in the instant case acted in a reasonable manner. Case Questions: 1. Do you agree with the court that the employer's duty was discharged in this case? Student response. 2. If you had been the employer, what would you have done when Williams came to you after his conversion, and later (if you decided to keep him on) when he requested the Thursday off? Student response. 3. As an employer, what questions would you ask yourself before deciding on a policy to handle religious conflicts? Student response. LECTURE NOTES 1. However, not everything an employee wishes to do need be accommodates simply because it is related to the employee’s religion. Case Example: Chalmers v. Tulon Company of Richmond, 72 Fair Employment Practice Cases (BNA) 747 (4th Cir. 1996) Issue: Whether it was a reasonable accommodation for an employer to terminate a supervisory employee who, based on her religious beliefs, sent disturbing letters home to other employees. Facts: A supervisory employee sent to the homes of two employees letters expressing her belief that they “get right with God.” One employee’s wife saw the letter and became distraught thinking her husband had again committed adultery. Another employee received the letter while at home convalescing from an undiagnosed illness after the birth of her baby born out of wedlock. The employer terminated the employee when the letters were discovered, based on her “serious error in judgment” and the fact that she offended them, attacked their personal lives and beliefs, and damaged the working relationship, making it too difficult for the supervisory employee to continue to work there. The employee sued, alleging religious discrimination and that her writing constituted protected religious activity must be accommodated with a lesser punishment than discharge. Decision: The court upheld the dismissal, saying that the employer’s reasons for the dismissal were legitimate and non-discriminatory. In addition, in order to accommodate a religious conflict, the employer must know of it, and the court said the employee offered no evidence that she had notified the employer of her religious beliefs manifesting themselves through accusatory letter writing which impose her religious beliefs on others. Case Questions 1. Is there any way the employer could have avoided this situation? Explain. Student response. In the discussion, mention to the students the inevitability of situations arising that are simply unforeseeable, within the realm of reasonableness. Here, the court noted that and went along with the impact of realizing it. The court said it was unreasonable for the employer to be required to warn supervisory employees not to send home accusatory religious-based letters. In addition, remind the students of the importance of flexibility and being prepared for whatever comes up, rather than thinking they have everything under control simply because they have good policies in place. 2. If the employee had initially told the employer of her plan to write the letters and the employer had told her not to send them, would the outcome be any different if she had done so anyway? It would have put the employer on notice of the religious conflict, but there would still be little way to accommodate the employee’s religious activity, since she would still be imposing her religious belief on others, which the court said she could not do. 3. What would you have done if your employee’s wife called as Ms. LaMantia died? Student response. LECTURE NOTES Employee's Duty to Cooperate in Accommodation 1. The U.S. Supreme Court has held that in attempting to accommodate the employee, all that is required is that the employer make any reasonable accommodation and this need not necessarily be the most reasonable accommodation available. 2. The employee must also be reasonable in considering accommodation alternatives. 3. The employer's only alternative may involve demoting the employee. This is not forbidden if all other alternatives present the employer with an undue hardship. 4. EEOC and courts will look to the following factors in determining whether the employer has successfully borne the burden of reasonably accommodating the employee's religious conflict. Each factor will be considered and weighed as appropriate for the circumstances. If on balance the employer has considered the factors appropriate for the employer's particular circumstances and accommodation is not possible, there is usually no liability for religious discrimination. The factors include: ? whether the employer made an attempt at accommodation ? the size of the employer's workforce ? the type of job in which the conflict is present ? the employer's checking with other employees to see if anyone was willing to assist in the accommodation ? the cost of accommodation ? the administrative aspects of accommodation Case Example: Vargas v. Sears, Roebuck & Company, 1998 U.S.Dist. LEXIS 21148 (E.D. Mich. 1998) Issue: Whether when there is a religious conflict in the workplace, an employee must assist in trying to reach an accommodation. Facts: Vargas is a Mexican-American practicing traditional Native American religion and was hired as a sales person at Sears. When he was hired, his hair was shoulder length and he was given a workplace handbook that said all associates must be neatly dressed in professional, businesslike clothing and for me, beards and contemporary hairstyles should be maintained in a neat, trimmed manner. When Vargas was hired, his hair was in compliance with the policy, but while there, he let it grow and wore it in a ponytail as part of his Native American religion. While long hair is not a requirement of his religion, he believed Native American religion to be dependent upon “your own spiritual development and the sacrifices you want to make for that.” Vargas was asked to tuck his hair into his collar as an accommodation. Vargas refused, saying the accommodation was inhumane and unreasonable, put him in a position of ridicule and didn’t allow a conducive position for his spirit to be free. Eventually Vargas’ hair grew to nearly waist-length. It is undisputed that during the time he was dealing with his employers, Vargas did not tell them that tucking his hair in would violate his religious beliefs. He also did not suggest any accommodation other than allowing him to wear his hair however he wanted. Decision: yes, if there is a religious conflict in the workplace, the employee with the conflict must assist in the attempted accommodation. Not only did Vargas not tell his employer that wearing his hair inside his collar would violate his religious beliefs, but he also did not try at all to assist in his accommodation. Sears made a good faith effort to try to accommodate, but it had no help from Vargas. Case Questions Do you think that Sears’ accommodation was sufficient? Explain. Student response. 2. Do you think Sears’ policies adequately reflected its workforce? Explain. Student response. 3. What approach would you take to developing policies such as these? Student response. LECTURE NOTES What Constitutes Undue Hardship? 1. What constitutes undue hardship also varies from situation to situation and will be addressed by the EEOC and the courts on an individual basis. There are no set rules as to what constitutes undue hardship since each employer operates under different circumstances. 2. The accommodation the employer rejects as undue hardship may not be a mere inconvenience to the employer. 3. EEOC has provided employers with guidelines as to what factors it will consider in answering the question of whether the employer's accommodation would cause undue hardship. Such factors include: ? the nature of the employer's workplace ? the type of job needing accommodation ? the cost of the accommodation ? the willingness of other employees to assist in the accommodation ? the possibility of transfer of the employee and its effects ? what is done by similarly situated employers ? the number of employees available for accommodation ? the burden of accommodation upon the union 4. Generally speaking, EEOC's interpretation of what constitutes undue hardship and reasonable accommodation has been more stringent than the interpretation of undue hardship by the courts. 5. Since the EEOC's guidelines are not binding, and court decisions are, employers must look to the interpretation by courts in their own jurisdictions. 6. Among other things, courts have found that it would be an undue hardship if an employer had to ? violate the seniority provision of a valid collective bargaining agreement ? pay out more than a "de minimes" cost (in terms of money or efficiency) to replace a worker who has religious conflicts ? force other employees who do not wish to do so to trade places with the employee who has a religious conflict. Case Example: Trans World Airlines v. Hardison,432 U.S. 63 (1977) Issue: Whether the employer must accommodate an employee's religious conflict at all costs in order to avoid violating Title VII? Facts: Employer was unable to accommodate employee's religious conflict of working on the Sabbath without undue hardship because employee worked in a department that operated 24 hours a day every day overhauling and maintaining airplanes. Each of three proposed alternatives was rejected as constituting an undue hardship on the employer. Decision: For employer. The Court set forth the guidelines for making the determination as to what constitutes undue hardship. It said that violating a collective bargaining agreement is not required, nor is permitting employee to work a four day work week or hiring someone to take his place on his Sabbath, if doing so presented more than a de minimis cost. Case Questions 1. In your opinion, were the alternatives suggested by the court of appeals viable for TWA? Why or why not? Student response. 2. Does it seem inconsistent to prohibit religious discrimination, yet say that collective bargaining agreements cannot be violated to accommodate religious differences? Explain. Student response. 3. If you had been Hardison's manager and he came to you with this conflict, how would you have handled it? Does that change now that you have seen the Court's decision? If so, how? Student response. LECTURE NOTES Religion as a BFOQ 1. Title VII permits religion to be a bona fide occupational qualification if it is reasonably necessary to the employer's particular normal business operations. See Box 11-3 for an example of religion being treated as an integral part of a non-religious business setting and Box 11-4 on gender and religious conflicts. 2. Title VII specifically permits educational institutions to employ those of a particular religion of they are owned in whole or substantial part by a particular religion. Case Example: Pime v. Loyola University of Chicago, 803 F.2d 351 (7th Cir. 1986) Issue: Whether a Jesuit Catholic university could use being Jesuit as a BFOQ for teaching in its philosophy department? Facts: The Jewish employee, Pime, brought suit against the Jesuit university under Title VII for religious discrimination in the hiring of tenure track professors in their College of Arts and Sciences, Department of Philosophy. The Department passed a resolution reserving the next three vacancies in tenure track teaching positions for Jesuits, members of the Society of Jesus. Decision: The court held the Jesuit requirement to be a BFOQ under the circumstances, and not violative of Title VII. There is no hint of invidious action against Pime on account of his religion. The administration at this Jesuit institution, fearing the loss of a Jesuit presence because so many of its faculty was non-Jesuit, excluded every non-Jesuit from consideration, whether of the Catholic faith or otherwise. We shall assume, however, that because Pime's faith would prevent his being a Jesuit, he has a claim of discrimination on account of religion. The BFOQ involved in this case is membership in a religious order of a particular faith. There is evidence of the relationship of the order to Loyola and that Jesuit "presence" is important to the successful operation of the university. It appears to be significant to the educational tradition and character of the institution that students be assured a degree of contact with teachers who have received the training and accepted the obligation which are essential to membership in the Society of Jesus. It requires more to be a Jesuit than just adherence to the Catholic faith, and it seems wholly reasonable to believe that the educational experience at Loyola would be different if Jesuit presence were not maintained. It seems to us the evidence supports the more general proposition that having a Jesuit presence in the Philosophy faculty is "reasonably necessary to the normal operation" of the enterprise Case Questions 1. Does the decision make sense to you? Explain. Student response. 2. Since such a high percentage of Loyola's faculty and administrator's are non-Jesuits, does it seem as if an argument could be made that the school has thereby given up its legitimate claim to have being Jesuit be a BFOQ? Yes, since it has hired so many non-Jesuits, which indicates that the non-Jesuits can do the job and the school can still maintain its flavor. No, because hiring as many non-Jesuits as it did is exactly why steps must now be taken to save the Jesuit flavor of the university if it is to be maintained at all. 3. As an employer, do you think you would have to face dealing with the policy adopted here making other employees feel unwelcome? If so, what would you do? Student response. LECTURE NOTES Religious Harassment 1. This area has gotten more active lately including the workplace display of crosses or other religious artifacts in their work space, religious study groups during the workday, handing out religious tracts to co-workers, and preaching, “witnessing” or “testifying” about their religious beliefs to co-workers. 2. Activity in the religious harassment area is due, in part, to matters relating to various religious issues in the past several years. 3. In 1990 the U.S. Supreme Court rejected Native Americans’ argument that they should be permitted the ritual use of peyote in their tribal religious ceremonies as part of their First Amendment right to freedom of religion. 4. In 1993 Congress passed the Religious Freedom Restoration Act (RFRA) to ensure the free exercise of religious practices. The law had tremendous support from many quarters. 5. RFRA was an attempt to restore the previous status quo under which religious practices must be accommodated unless a compelling governmental interest can be demonstrated, and advanced in the least restrictive manner. 6. In 1997, the U.S. Supreme Court overturned RFRA as giving a governmental preference for religion, in violation of the First Amendment. 7. Though not directed toward religious practices in the workplace, per sé, national attention and debate about these issues, along with a growing religious presence in political forums extended the religious practices into the workplace by extrapolation. When the religious practices were challenged, religious harassment claims rose. 8. It is often the non-religious employees who allege they are being harassed by religious employees. For example, information systems manager Rosamaria Machado-Wilson filed a case in 1998 alleging that she was fired after less than six months on the job, after reporting religious harassment to her employer, BSG Laboratories. Machado-Wilson said that a simple walk to the coffee pot sometimes meant “weaving past prostate, praying co-workers and stopping for impromptu ceremonies spoken in tongues.” Machado-Wilson alleged she was forced to attend company prayer meetings and be baptized; employees were subjected to inquiries into and comments about their religious beliefs, and those found to be nonbelievers were fired. 9. Since Title Vii prohibits religious discrimination, it also prohibits religious harassment. 10. EEOC issued guidelines on liability for harassment in 1999, explicitly covering religious harassment. 11. On August 14, 1997, President Clinton issued guidelines for religious freedom of federal employees. The purpose is to accommodate religious observance in the workplace as an important national priority by striking a balance between religious observance and the requirements of the workplace. 12. Under the guidelines, employees: * should be permitted to engage in private religious expression in personal work areas not regularly open to the public to the same extent that they may engage in nonreligious private expression. * should be permitted to engage in religious expression with fellow employees, to the same extent they may engage in comparable nonreligious private expression, subject to reasonable restrictions. * be permitted to engage in religious expression directed at fellow employees, and may even attempt to persuade fellow employees of the correctness of their religious views. But employees must refrain from such expression when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome. 13. To best prevent religious harassment liability, employers should be sure to protect employees from those somewhat zealous religious employees who attempt to proselytize others who do not wish to be approached about religious matters, as well as protect employees with permissible religious practices who are given a hard time by those who do not follow such practices. 14. It is also important that employees are given comparable opportunities to use workplace time and resources for religious practices if given for secular activities. 15. There has been a marked increase in religious harassment of Muslims, Sikhs and other Middle Eastern religions since the events of September 11, 2001, leading EEOC to reiterate its rules in this area. Union Activity and Religious Discrimination 1. At times the religious conflicts that arise between the employee and the employer are caused by collective bargaining agreement provisions rather than policies unilaterally imposed by the employer. 2. It has been determined that even though Title VII defines the term "religion” with reference to an employer having to accommodate, unions are also under a duty to reasonably accommodate religious conflicts. 3. The most frequent conflicts are requirements that employees be union members or pay union dues. 4. Union membership, payment of union dues, or engaging in concerted activity such as picketing and striking conflicts with some religious beliefs. Employees have also objected to the payment of union dues as violating their First Amendment right to freedom of religion and Title VII's prohibition against religious discrimination. 6. Unions have claimed that applying the religious proscription of Title VII violates the Establishment Clause of the First Amendment to the U.S. Constitution insuring government neutrality in religious matters. 7. Courts have ruled that union security agreements requiring that employees pay union dues within a certain time after the effective date of their employment or be discharged does not violate an employee's First Amendment rights. However, it violates Title VII for an employer to discharge an employee for refusal to join the union because of his religious beliefs. 8. Employees with religious objections must be reasonably accommodated, including the possibility of the alternative of keeping their job without paying union dues. 9. The union could prove undue hardship if many of the employees chose to have their dues instead paid to a non-union, non-sectarian charitable organization chosen by the union and the employer, since the impact on the union would not be insubstantial. 10. In Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir. 1981), cert. denied 102 S. Ct. 671, Seventh Day Adventists who were prohibited by their religion from becoming members in, or paying a service fee to, a union, offered to pay an amount equal to union dues to a mutually acceptable charity. The union refused and argued that to accommodate the employees violated the Establishment Clause ensuring governmental neutrality in matters of religion. The court said that the government could legitimately enforce accommodations of religious beliefs when the accommodation reflects the obligation of neutrality in the face of religious differences and does not constitute sponsorship, financial support or active involvement of the sovereign in religious activities with which the Establishment Clause is mainly concerned. The Establishment Clause, typically applied to state legislation such as in Frazee, above, requires that the accommodation reflect a clearly secular purpose, have a primary effect that neither inhibits nor advances religion, and avoids excessive government entanglement with religion. 11. Whether the objection under Title VII is directed toward the employer or the union, a government employer still has a duty to reasonably accommodate the employee's religious conflict unless to do so would cause undue hardship, excessive entanglement with religion or violate the Establishment Clause. Chapter-End Questions 1. The Christian Science Monitor refused to hire Feldstein because he was not a Christian Scientist. The newspaper said that they only hired those who were of the Christian Science religion, unless there are non qualified for the position. Is the newspaper’s policy legal? Explain. Feldstein v. EEOC, 547 F. Supp. 97 (DC Mass. 1982). Yes, the newspaper’s policy is legal. Under the exception to Title VII’s prohibition on the basis of religion, a religious entity connected with the church can discriminate on the basis of religion. 2. Cynthia, an employee, requested a two-week leave from her employer to go on a religious pilgrimage. The pilgrimage was not a requirement of her religion, but Cynthia felt it was a “calling from God.” Will it violate Title VII if Cynthia’s employer does not grant her the leave? Explain. Tiano v. Dillard Department Stores, Inc., 1998 WL 117864 (9th Cir. 1998). No, it is not a violation of Title VII for the employer not to grant Cynthia the leave for the pilgrimage. The court said that when an employee maintains that her religious belief requires her tot attend a particular pilgrimage, she must prove that the temporal mandate was part of the bona fide religious belief. Otherwise, the employer is forced to accommodate the personal preferences of the employee. Her church, the Roman Catholic, had not called for a pilgrimage. It was a personal choice. Tiano, therefore, did not establish a prima facie case of religious discrimination. 3. A Catholic police officer is given the opportunity to transfer to another police district after he refuses to do duty at an abortion clinic, where anti-abortion demonstrations are being held, because he does not believe in abortions. He does not think this is a reasonable accommodation and sues for religious discrimination. Will the employer’s accommodation be upheld as reasonable? Why or why not? Rodriguez v. Chicago, No. 97-3339 (7th Cir. 1998). Yes, the accommodation is reasonable. The court found that such an accommodation would have eliminated the conflict between the officer’s job responsibilities and his religious beliefs. 4. Jacinto, a supervisor, repeatedly told offensive religious jokes in the presence of Jarman, an employee, and unjustly criticized Jarman’s work. Another manager saw Jarman reading a Bible during his lunch break and directed a lower-level supervisor to tell him to stop. Jarman also says there was an increase in his workload and he was told to have a project finished by the end of the day, “or else.” During this time, Jarman received positive job evaluations and his requests for overtime were routinely granted. Jarman eventually quits his job and sues for religious harassment. Will he win? Hernandez-Torres v. Intercontinental Trading, Inc. 78 FEP Cas. 90 (1st Cir. 1998). No, the court said that none of the employment actions of which the employee complained rose to the level of the requisite adverse actions, particularly since the employee received positive job evaluations during this period and his requests were routinely granted. 5. A Michigan Holiday Inn fired a pregnant employee because the “very Christian” staff members were very upset by her talk of having an abortion. Has the employer violated Title VII? Turic v. Holland Hospitality, Inc., No. 1-93-CV-379 (W.D. Mich. 1994). Probably. The court ordered a trial on the claim. The court said that in response to the alleged “uproar” at the workplace, the pregnant employee was the only one disciplined and she was identified as the “cause” of the problem. Such allegations of disproportionate punishment, along religious lines state a bona fide claim of religious discrimination under Title VII. 6. A Seventh Day Adventist whose religious faith required him to refrain from work from sunset Friday to sunset Saturday was allowed to bid on several jobs that would not have required that he work on his Sabbath. Employee says the proffered positions are jobs that most other people didn’t want, so he refused to bid on them, even though he would have received at least two of the positions. Because he did not participate in the special bidding procedure, he could be assigned to any position. The position he was assigned to required him to work on Friday evenings, so he resigned. When he brings suit for religious discrimination, will he win? Wright v. USPS, 2 F. 3d 214 (7th Cir. 1993). Yes, the employer reasonably accommodated the employee. The court said that the law requires only reasonable accommodation, “not satisfaction of an employee’s every desire.” 7. Employer has a strict policy of not allowing employees with beards to work in public contact positions. All managerial positions are public contact positions. Employer does not make exceptions to its policies for those with religious objections to shaving, but it reasonably accommodates them by offering them other positions within the company. When employee applies for a driver position and is turned down, he sues employer. Does he win? EEOC v. UPS, 94 F.3d 314 (7th Cir. 1996). Probably. The employer’s policy did not adequately make accommodations for employees with religious conflicts. 8. Employee, a Muslim, is a management trainee at an airport car rental office. As part of her religious practice, employee wears a hijab (headscarf). She is told by her supervisor that the hijab does not match the uniforms she is required to wear, so she must stop wearing them or be transferred to another position with less customer interaction. Employee was later terminated as part of a company cutback. She sues for religious discrimination. Does she win? Explain. Ali v. Alamo Rent-A-Car, 246F.3d662 (4TH Cir.2001) No, she loses. The court said the decision about the hijab had nothing to do with religion, and that employee was never financially penalized for wearing the hijab. 9. A Penetacostal nurse claims she was constructively discharged after refusing to assist in medical procedures she considered to be abortions, because of her religious beliefs. She was initially transferred from labor and delivery to the newborn intensive care unit. Employee found this, unacceptable because she says she would once again be force to refuse tasks that involved allowing infants to die. The hospital invited employee to meet with human resources and to investigate available position, but she refused. Employee says the duty to assist in an accommodation never arose because a transfer to any other department is not a viable option since it required her to give up her eight years of specialized training and education and undertake retraining. employee is terminated and sues for religious discrimination. Does she win? Explain. Shelton v. University of Medicine & Dentistry of New Jersey, US App. LEXIS 19099 No, she loses. The court said that the employee’s refusal to cooperate in attempting to find an acceptable religious accommodation was unjustified. The hospital met its burden of showing it offered a reasonable accommodation. Reasonable accommodation need not be the accommodation most reasonable to the employee or the one the employee prefers. Further, the court said that even if this was not a reasonable accommodation, employee forfeited her claim when she refused to meet with the hospital to discuss other possible assignments. 10. A Baptist-run home for troubled youngsters terminates an employee for being a lesbian. Can it do so? Pedreira v. Kentucky Baptist Home for Children, (Dist Ct. Ky.2001) Yes, it can do so. The employee’s affinity orientation conflicted with the tenets of the home’s religion, which was central to its mission.