Tag Archives | religious discrimination

Politics and religion in the workplace: a primer

By on May 14, 2012 in Our Blog

My west coast colleague, Allison West, Esq. SPHR, will be tackling this issue in a webinar on June 19, 2012.  In a nutshell, she’ll be covering:

Religious and political discussions can be difficult to avoid in the workplace, especially in a presidential election year. And because such discussions can invoke strong reactions, employers struggle with how much to allow — or rein in — without violating employees’ rights. So, what can an employer do to avoid legal landmines?

Timely, right?  If you are interested, here is the link to sign up.

To really drive home the importance of knowing the potential pitfalls when it comes to religion at work, earlier this month a jury awarded $5 million to a single plaintiff.  Susan Bashir worked for a division of AT&T.  When she started working, she was Christian.  A few years later she converted to Muslim.  Her work environment was not hospitable, to say the least.  Managers and coworkers called her a terrorist and other pejorative names.  They made fun of her hijab and her manager even tried to pull it off her head.  She complained, but to no avail and she was eventually fired (retaliation anyone?).

The jury was quick to rule in her favor.  Actual damages were $120,00.  But the punitives?  An additional $5 million.  [Hat tip Allison West]

If you read this blog you probably know what I am about to say.  Train your employees, especially managers!

 

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Exceptions to a grooming policy: a classic accommodation of a religious belief

By on May 1, 2012 in Our Blog

Religion is the only protected category under Title VII that requires employers to make reasonable accommodations.  (We typically think of reasonable accommodations in the context of the ADA).  The EEOC just tagged an employer for a common but easy-to-avoid misstep.

A Taco Bell franchise in North Carolina recently threatened to fire an employee who refused to cut his hair, in contravention of the restaurant’s policy.  The employee was a self-avowed “Nazirite” who, following his belief system, had not cut his hair in years.  What should the employer have done?  Considered making an exception to the grooming policy as an accommodation.  If there were health or safety issues (e.g., the employee dealt directly with food and his hair was in the way), the employer could have insisted on a hairnet or some such thing, in lieu of a hair cut.  The point is, the employer should have spotted the issue.

Never heard of an employee’s claimed faith?  Most likely this will not make a difference to your obligation.  Title VII’s mandate is incredibly broad.  Do yourself a favor and train managers to at least be able to spot these issues.  That way, HR and/or legal counsel can get involved before the EEOC does.

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Duped into discriminating

By on September 19, 2011 in Our Blog

Last month the Northern District of Ohio held an employee who was terminated by a supervisor who had no discriminatory intent could proceed to trial for religious-based discrimination.  Why?  The supervisor who made the termination decision was influenced by another supervisor who was really out to discriminate against the employee based on her disagreement with his religious beliefs.  In other words, the “cat’s paw” theory of liability won the day for the plaintiff.  The case is Willis v. Integrity Realty Group.

Cat’s paw liability kicks in and holds an employer liable for the discriminatory intent of an employee who played no role in the decision to terminate (or whatever adverse employment action is at issue), where that employee exercised some influence over the decision-maker.  In Willis, the plaintiff was asked by her supervisor to attend Bible classes.  She agreed at first but then stopped attending.  Her supervisor then created the false appearance of a performance issue and recommended the plaintiff’s immediate termination to her own boss.  Relying on the supervisor’s word, and knowing nothing about the Bible class, the boss fired the plaintiff who, predictably, turned around and sued.

The takeaway from Willis is clear: don’t just rely on a supervisor’s say-so when making a decision to terminate.  Make sure you really know the facts, and take the time to investigate.  Also, make sure all supervisors receive anti-discrimination training.  Inviting an employee to share religious beliefs is always a very bad idea.

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Religious accommodations: holiday edition

By on November 22, 2010 in Our Blog

As the holidays approach, it’s a good time to make sure your managers know the ins and outs of religious accommodations.  The issue is likely to arise a lot at this time of year.  In a nutshell, employers need to accommodate an employee’s sincerely held religious beliefs, unless doing so would cause an undue burden.  This “undue burden” standard is a tough one to meet, so don’t be too quick to nix potential accommodations.  The employer in a recent case did this, and now faces a jury trial on the issue.

In Oakley v. Orthopaedic Associates of Allentown, an employee who was hired in June 2007 became an active member of the Church of God, a Christian denomination, in the summer of 2008.  She therefore requested that she not have to work Friday evenings or Saturdays, in order to observe the Sabbath.  She also needed additional time off to celebrate the Feast of the Tabernacles.  Her supervisor, on one occasion, referred to her newfound beliefs as “weird” and stated other employees would also like Friday evenings and Saturdays off.  An HR representative told her that her requests for time off were not fair to other employees, who had to cover for her absences.  The employer accommodated some of her requests for time off, but not others.  The employee offered to take a pay cut, and also offered to work at odd times to make up for her requests.  She was eventually terminated, and sued for failure to accommodate, under Title VII.  

The court stated that the plaintiff had to show (1) a sincerely held religious belief that conflicts with a job requirement; (2) she informed the employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.  She did so, and thus the burden shifted to the employer to demonstrate that it made a good faith effort to accommodate the plaintiff, or that the requested accommodation posed an “undue hardship.”  The court’s analysis revolved around this undue hardship standard.  In the end, the court concluded that material issues of fact remained, enabling the plaintiff to try her case to a jury.  What is most notable in the court’s decision is the painstaking detail it goes through to assess the employer’s claim of undue hardship.  In particular, the court looked at various scenarios whereby the employer might have been able to accommodate the plaintiff, such as hiring part-time staff or decreasing the plaintiff’s pay to a certain degree.  I view this case as a cautionary tale for employers: tread carefully when assessing requests for reasonable accommodations.  Document your decisions, consult with counsel, and above all, make sure your supervisors are not on the front lines making these calls without your input.

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Do’s and don’ts of expressing your religious beliefs at work

By on November 2, 2010 in Our Blog

Employers generally know that employees have the legal right to express their religious beliefs in the workplace, so long as they do not impinge on the rights of others in doing so.  A recent settlement by the Ohio Workers’ Compensation Council provides a textbook example of how not to express one’s beliefs, particularly if one happens to be the boss.

According to three former employees of the agency, Executive Director Virginia McInerney told her employees she had been sent by God to perform her job.  She insisted that God should permeate the workplace and that Satan was responsible for job-related problems encountered by employees.  She further led group prayers to “banish Satan’s influence from the office,” and disciplined employees who resisted.  The employees complained, and were promptly terminated.  They ended up amassing a settlement of more than $70,000.  

 I’m not sure what Ms. McInerney was thinking, if the allegations are in fact true.  To be this unfamiliar with the proscriptions of Title VII in this day and age leaves me with one question.  Really?

Virginia McInerney

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Discrimination complaint filed arising out of forced attendance at religious event

By on July 13, 2010 in Our Blog

Late last year, former Washington Times editorial page editor Richard Miniter filed an EEOC charge against the newspaper.  He complained of (among other things) religious discrimination, stating he had been forced to attend a Unification Church religious ceremony that he found “creepy.”  The ceremony allegedly culminated in a mass wedding conducted by the Church’s leader, Reverend Sun Myung Moon.  According to Miniter, newspaper executives told him of other employees whose careers had skyrocketed after converting and becoming followers of the Unification Church.

The allegations in this case raise the question “what were they thinking?”  It should go without saying that a secular employer should never introduce its religious views into the workplace, let alone force employees to attend a religious ceremony.  Some basic, bare-bones anti-discrimination training would have prevented this alleged conduct that, without a doubt, runs afoul of Title VII.

Reverend Moon

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Employers must heed requests for time off for religious observances

By on April 2, 2010 in Our Blog

The EEOC has sued Lowe’s Home Centers in Tennessee for religious discrimination.  The home improvement retailer denied a Baptist employee his request to not work Sundays in order to celebrate his Sabbath.  According to the EEOC, the employee made two written requests for accommodations.  Lowe’s ignored the requests for over two months and then denied them.  Its explanation was that granting the requests could create a hardship for other employees who may desire not to work on Sundays.  Not surprisingly, it is the EEOC’s position that this is not enough of a hardship to deny the requested accommodation.

The EEOC’s stance on the case is not altered by the fact the employee was not a Baptist when he was hired.  He converted several years later and, according to the EEOC, is entitled to the accommodation regardless.

The duty to accommodate religious beliefs is a pretty hefty one, and one employers need to pay particular attention to.  Managers should also receive training to understand their legal obligations in this regard.  In a nutshell, if an employee requests not to work on a particular day for religious reasons, caution dictates granting the request or, at a minimum, consulting with counsel.

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Deja vu? Abercrombie & Fitch accused of religious discrimination

By on March 2, 2010 in Our Blog

Retail giant Abercrombie & Fitch has had its share of discrimination-related smackdowns.  In 2004, the EEOC sued Abercrombie for race discrimination arising out of its hiring practices.  Abercrombie’s marketing and hiring strategy focused almost exclusively on good-looking white young men and women.  The EEOC obtained a $50 million settlement with the store, as well as the store’s commitment to “diversify” its marketing and hiring efforts and train its employees on the anti-discrimination laws.

Last September, the EEOC filed a discrimination lawsuit against Abercrombie based on its failure to hire a young woman who wore a hijab, a religious headscarf.  (We blogged about this case, the outcome of which is as of yet unknown).  

Last week, the Council on American-Islamic Relations, one of the country’s largest Muslim civil rights organizations, filed an EEOC complaint against Abercrombie-owned Hollister, also a retail store.  According to the complaint, nineteen year old Umme-Hani Kahn, a stockroom worker, was fired for refusing to take off her hijab.  Kahn was told she could wear her hijab when she was hired last October, so long as it was white, gray, or blue, so as to conform with the store’s “looks” policy.  But when a new district manager came to the store last month, Kahn was told wearing the hijab in any color violated the “looks” policy.  When Kahn claimed she could not remove it due to her religious beliefs, she was fired, according to the complaint.

It surprises me that some employers continue to be completely confounded by the duty to accommodate religious beliefs.  It’s not all that complicated, so long as employers take the time to know the general rules, and to train on them.  Even basic anti-discrimination training can enable employers and their managers to at least spot potential legal issues.  The lesson here is, in short, if an employee cites a religious belief as the basis for a specific appearance, whether it be a hijab, a yarmulka, a tattoo, a hairstyle, or anything else, check with counsel and go through a very careful analysis before firing that employee.

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“W” is for Witchcraft (and, most likely, Winning Religious Discrimination Claim)

By on November 2, 2009 in Our Blog

A district sales manager in Hartford, CT is suing retail giant Bath and Body Works for religious discrimination in violation of Title VII.  Her claim is based on the allegation that her manager made derogatory comments about her religion, Wicca, and fired her shortly after she took time off for a religious observance.  

Wicca is a neopagan, nature-based religion that is often colloquially associated with witchcraft.  The New Year of the Wiccan religion is October 31st, Halloween.  According to the complaint, many Wiccans celebrate by traveling to Salem, Massachusetts, home of the witch trials of the late seventeenth century.

The plaintiff in the case, Gina Uberti, claims she scheduled time off for the occasion well in advance.  A new supervisor, however, allegedly badgered her about the need for time off and made comments such as “you will need a new career in your new year” and “I will be damned if I have a devil-worshipper on my team.”  True to her word, the supervisor fired Uberti a few days after her leave.

While this case is just beginning its long jaunt through the court system, it serves as a useful reminder of employers’ obligations under the anti-discrimination laws.  If this supervisor had received good, solid training on the duty to accommodate religious beliefs (no matter how silly she may find them), chances are Bath and Body Works would not be spending a lot of time and money dealing with this entirely preventable lawsuit.

witch

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Uncertain territory: an employer’s duty to accommodate religious beliefs

By on September 24, 2009 in Our Blog

By now everyone knows that employers have a duty under Title VII to reasonably accommodate religious beliefs.  Just how far this duty goes, though, is subject to debate.

On September 21, 2009, Jon Hyman blogged about this duty in the context of a recent lawsuit filed by the EEOC against the retail giant Abercrombie & Fitch.  According to the EEOC’s press release, Abercrombie & Fitch refused to hire a 17-year old Muslim because she wore a hijab to her interview, which was inconsistent with the store’s “Look Policy.”  Jon Hyman’s take on the case is that the EEOC will have a difficult time proving discrimination.  But I see it differently.

To me this case seems a lot like a recent EEOC case against Grand Central Partnership (GCP) in New York.  The EEOC accused GCP of discrimination against four employees who observed the Rastafarian religion.  The employees sought an exception to GCP’s grooming policy, which prohibited employees from wearing their hair outside their uniform hats.  The employees sought an accommodation for their long dreadlocks and short beards, which they claimed were part of their religious observance.  The case was settled on August 7, 2009, with GCP agreeing to permit the accommodation and also paying the employees for the alleged discrimination.

It is true that we do not know how a court would have ruled in the GCP matter, as it was settled.  But a few things are clear.  First, the EEOC is actively pursuing cases of what it considers an illegal failure to accommodate religious beliefs.  Second, employers should make decisions about the duty to accommodate carefully, and with the advice of counsel.  Finally, employers should make sure they take the time to train their managers on their responsibilities under Title VII.  

hijab

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Religion at Work: Proselytizing v. Freedom of Expression

By on August 3, 2009 in Our Blog

In a June 22, 2009 press release, the EEOC announced an $80,000 settlement with The Vail Corporation, which operates ski resorts in Colorado.  According to the EEOC’s lawsuit, Christian employee Lisa Marie Cornwell was, among other things, denied religious accommodations.  Her supervisor allegedly prohibited her from discussing her Christian beliefs while at work, forbade her from listening to Christian music while on duty (while permitting other types of music, including songs with profanity-laced lyrics), and denied requests for shift changes so that Ms. Cornwell could attend church services.

According to the EEOC, “claims of religious discrimination have increased by more than 80% in the last ten years,” and the agency intends to pursue claims similar to this one.   

One of the ways The Vail Corporation went wrong was by failing to permit Ms. Cornwell to discuss her religion and listen to religious-based music, especially in light of the permitted playing of other, arguably offensive, types of music.  Presumably, the supervisor in question was trying to maintain a religious-free workplace, but in doing so stepped on Ms. Cornwell’s rights.   

Employers need to be careful to draw the right line between proselytizing (which employers can regulate and even prohibit) and expressing religious beliefs (which employers must permit, to a reasonable degree, under Title VII).

In addition to extracting a monetary settlement, the EEOC forced The Vail Corporation to conduct company-wide training on complying with the discrimination laws.  

Best practices advice?  Employers should stay one step ahead of the curve and train supervisors on the need to accommodate religious beliefs.  After all, an ounce of prevention is worth a pound of cure!

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