Sympathy for the Devil (as religious discrimination)

I haven’t always been a lawyer. During a previous life (high school and college), I spent weekends and summers as a bar mitzvah DJ, a nursing home busboy, and a warehouse loading dock guy. At one of those warehouses, I worked with a man by name of Harland Jester. (I provide his name because he named his son “Court,” and this context provides the necessary color for the rest of the story.) Harland was an interesting cat. He believed, for example, that the Freemasons ran the world from a secret office on the 36th floor of Rockefeller Center, and the Lee Iacocca saved Chrysler by making a pact with the devil. This warehouse was full of colorful characters in addition to Harland, many of whom enjoyed a good practical joke. One such joke, played at Harland’s expense, involved a sketch on Harland’s work desk of Mr. Iacocca shaking hands with Satan, with both saying, “Harland, we’re watching you!” Harland did not find the joke nearly as funny as the rest of us, and complained to management. For its part, the company took the path of least resistance, repainting his desk and requiring everyone at attend sensitivity training.

Suzanne Lucas, the Evil HR Lady, shared a story this morning about another employer which could have taken a lesson from my summer job. Billy Hyatt sued Pliant Corp. after it fired him for refusing to wear a sticker with the number 666 (representing the number of consecutive accident-free days) on it. According to the Workplace Prof Blog, Mr. Hyatt’s complaint alleges that he “asked a manager for a religious accommodation on day 666,” and was fired after he refused to work on that day at all.

Sometimes, the path of least resistance makes sense. Is it silly for an employee to refuse to wear “666” on a sticker? Yup. Was the employer within its rights to fire that employee? Maybe. Could the employer have avoided the cost (in legal fees, bad publicity, and a potential settlement or judgment) by simply exempting this employee from the sticker requirement for that one day? Absolutely. Even if this employer was legally in the right in firing this employee—and think about the reasonable accommodation requirements for an employee’s religious beliefs—sometimes it’s just not worth the cost to be right.

Stereotypes

On last Sunday’s episode of HBO’s Boardwalk Empire, Chalky White, a jailed African-American bootlegger, comforted his wife with the following information about his attorney: “He a Hebrew gentleman.” Lest you think that such observations were left in the 1920s, I once had a client I was defending in a race harassment case refer to me as his “Jew lawyer.”

I relay these tales (both real and fictional) because of a story on Businessweek.com about a national origin discrimination case recently filed by the EEOC against a Colorado hotel. The lawsuit claims that hotel ownership directed management “to hire more qualified maids, and that they preferred maids to be Hispanic because in their opinion Hispanics worked harder.” The lawsuit further claims that management told one of the fired employees that ownership did not want to employee American or Caucasian workers “because it was their impression that such workers are lazy.”

There is no hiding that stereotypes—both positive and negative— exist. To some degree we all harbor them (and anyone who tells you differently is full of it). The better job you do of insulating your personnel decisions from these stereotypes, the less often you will find yourself in need of my services—which is a positive stereotype you can embrace.

Is that a hair in my chalupa? (or, Taco Bell and EEOC battle over religious accommodation)

A Nazarite is one who takes a biblical vow to refrain from wine, wine vinegar, grapes, raisins, intoxicating liquors, and vinegar distilled from such, refrain from cutting the hair on one’s head, and to avoid corpses and graves, even those of family members, and any structure which contains such.

History’s most famous Nazarite is Samson, who famously refused to cut his hair because it was the source of his strength. Its second most famous might be Christopher Abbey, on whose behalf the EEOC has filed a religious discrimination lawsuit against a North Carolina Taco Bell that fired Abbey after he refused to cut his hair. From the EEOC’s press release:

According to the EEOC’s lawsuit, Abbey is a practicing Nazirite who, in accordance with his religious beliefs, has not cut his hair since he was 15 years old. Abbey had worked at a Taco Bell restaurant owned by Family Foods in Fayetteville, N.C., since 2004. Sometime in April 2010, Family Foods informed Abbey, who was 25 at the time, that he had to cut his hair in order to comply with its grooming policy. When Abbey explained that he could not cut his hair because of his religion, the company told Abbey that unless he cut his hair, he could no longer continue to work at the restaurant.

Two questions immediately leap to mind:

1. What changed between 2004 and 2010, when the restaurant decided that Abbey could no longer work with long hair?
2. What was so burdensome about Abbey wearing a hair net?

Someday, employers will learn that sometimes it is easier to make a simple accommodation than to dig in their heal and fight.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

You’d think a businesses named “Menorah House” would know something about accommodating the Sabbath

The EEOC is alleging that Menorah House, a Boca Raton, Florida, nursing home, violated Title VII when it fired an employee who wanted time off to observe the Sabbath. From the EEOC’s press release:

According to the EEOC’s suit … Menorah House denied a religious accommodation to Philomene Augustin and fired her because of her religious beliefs. Augustin … is a Seventh-Day Adventist, and her Sabbath is from sundown on Friday to sundown on Saturday evening. Menorah House had accommodated Augustin’s request not to work on her Sabbath for over ten years until management instituted a new policy requiring all employees to work on Saturdays, regardless of their religious beliefs.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

When will accommodating the weekly Sabbath requests of an employee pose an undue hardship?

• If it would require hiring additional employees.
• If it would require paying other employees overtime.
• If other employees refuse to voluntarily swap shifts to cover.
• If it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.

If, however, an employer can schedule around the request without adding employees or costs, or without forcing employees to swap shifts, then the accommodation likely should be made.

If the facts as alleged by the EEOC are true, this employer should have forsaken its across-the-board prohibition against Saturdays off. Instead, it should have engaged in a cooperative information-sharing process with the employee to determine if it could provide a reasonable accommodation without incurring an undue hardship.

For more information on religious discrimination and reasonable accommodations, the EEOC offers the following resources on its website:

• Compliance Manual on Religious Discrimination
• Questions and Answers: Religious Discrimination in the Workplace
• Best Practices for Eradicating Religious Discrimination in the Workplace

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Grooming and appearance policies continue to make headlines as fulcrum of religious discrimination lawsuits

Grow your dreadlocks
Don’t be afraid of the wolf-pack
A tell you, one man a walkin’
And a billion man a sparkin’
Rastaman, live up

~Bob Marley, Rastaman Live Up

The EEOC has sued a Virginia moving company that refused to hire a Rastafarian because of his dreadlocks. According to the agency:

Christopher Woodson applied for a job as a loader at Lawrence Transportation’s Waynesboro, Va., facility in May 2008. Woodson, who is Rastafarian, wears his hair in dreadlocks in accordance with his religious belief that he should refrain from cutting his hair…. Lawrence Transportation refused to hire Woodson as a mover because he would not cut his hair, even though Woodson had fourteen years of experience in the moving industry, including several years with Lawrence prior to his conversion to the Rastafarian religion. To address the company’s concerns regarding the appearance of Woodson’s hair in relation to Lawrence Transportation's grooming policy, Woodson offered to tie his hair up, wear a head wrap or wear a cap over his head. The hiring official rejected Woodson’s offers and told Woodson that the company would not hire him if he did not cut his hair.

Amanda Hess, writing at TBD.com, quotes a press statement from Lawrence Transportation, in which it defends its decision:

“Lawrence Transportation did not hire Mr. Woodson because he would not comply with our personal appearance policy,” the statement reads. According to Lawrence Transportation, employees are required to have “close personal contact” with customers, and non-standard hairstyles could affect Lawrence's ability to “provide the service expected by” these people.

“[Woodson’s] hair was down to the middle of his back and he was asked to get it cut to about shirt collar length,” the statement continues. “He refused to comply with this neutral policy.”

Personal appearance policy is a huge red flag. As I’ve discussed before, Title VII requires an employer to reasonably accommodate an employee’s sincerely held religious belief, practice, or observance that conflicts with a work requirement, unless the accommodation would create an undue hardship. The employer in this case is arguing that it does not have to accommodate Woodson because his long, dreadlocked hair will deter customers and cost it business. That argument, however, smacks of the very stereotypes Title VII protects against.

The EEOC continues to take a long, hard look at businesses that fail to accommodate religious practices that cause employees to look (or not look) a certain way. Unless your business can tie employees’ appearance to an integral part of your business (safety issues, Disney cast members, Abercrombie & Fitch’s “look”), you should think (and re-think) about any decision not to accommodate an employee’s religiously-based appearance or grooming.

[Hat tip: Overlawyered]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Discrimination against Muslims

We are now nine years post-9/11. To say that relations between Americans and Muslim-Americans are poor is an understatement. Our country has been worked into a froth over a proposed Mosque at Ground Zero. It seems that Muslims rank first in the category, “People against whom discrimination and marginalization is culturally acceptable.” Employment discrimination claims brought by Muslims have hit record numbers—higher in 2009 than even in 2002.

Discrimination against Muslims comes in two forms: national origin discrimination and religious discrimination. Both types are not that much different than a race discrimination claim. Failures to hire or promote, terminations, other unlawful employment actions, or harassment because of on one’s national origin or religion all constitute unlawful discrimination. For example, take the recent pair of cases filed by the EEOC against meatpacker JBS Swift, in which Muslim employees alleged that  blood and bones were hurled at them, bathroom walls were covered with vile graffiti and company supervisors fired many Islamic employees.

Religious discrimination, however, presents its own unique set of issues, because employers have an affirmative obligation to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Two recent stories illustrate the problems that these claims present for employers. Muslim employees continue to sue retailer Abercrombie & Fitch, challenging its “Look Policy” that prevents those who wear hijabs (religious head scarves) from being hired. Then, there is the Disneyland case, in which a Muslim employee, working as a hostess at a restaurant, protesting the theme park’s insistence that her costume cover her hijab so that she meets the “The Disney Look”—a 17-page document [pdf] outlining dress and grooming guidelines for all Cast Members to maintain uniformity and the suspension of disbelief, which has been used since Disneyland opened in 1955.

We all know that discrimination of all kinds is wrong. But, Muslim-Americans are practicing politics of exclusion in a time that calls for the opposite so that we, as a nation, can heal. The issue isn’t one of rights. Of course, one has a right to build a Mosque where one wants (and the law cannot stop the Ground Zero Mosque from being built). One should have the right to pray at work (as long as it doesn’t interfere with job performance or otherwise disrupt the workplace). One should have the right to wear religious garments in the workplace (although Abercrombie and Disney have the right to protect and project the public image that forms the foundation of their companies). Yet, as long as people insist on building a Mosque at Ground Zero, others will feel it’s okay to hurl meat and epithets.

There are no easy answers to these ugly problems. But, it’s not enough simply to say that employers have to cease discrimination. For the healing to begin, and for the discrimination to stop, there also has to be a showing of willingness, participation, and inclusion from the other side of the argument.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Are Christmas closings discriminatory?

HR Review, a British HR website, asks the following question: “Is closing office for  Christmas ‘indirect discrimination’?” For example, would anyone doubt the discriminatory nature of a policy that offers maternity leave to new moms but denies the same to new dads? Yet, no one bats an eye when a business shuts down, with pay, for Christmas, but requires its Jewish employees to use a vacation day if they want to be paid to stay home on Yom Kippur.

I have two thoughts:

1. This question does not compare apples to apples. Businesses offer designated paid holidays as a benefit to employees. Some are religious and some are not. If a business remained open on Christmas (a hospital, for example) and gave its Christian employees the day off with pay and without requiring the use of a vacation day, employees of other faiths would have a legitimate complaint. But, granting a paid day off to all employees as a benefit is simply not a fair comparison.

2. An employer does not have to make a religious accommodation if it imposes an undue hardship. In religious discrimination cases, undue hardship is a low standard – anything more than a de minimus cost or burden. The possible accommodation – being paid for a religious holiday without using a vacation day – would impose an undue hardship. An employee should not expect to receive what would amount to an extra paid vacation day just because of a religious affiliation.

Everyone enjoy your day off in a few weeks.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Can employers require flu shots for their employees?

As H1N1 becomes more widespread, and as the vaccine is beginning to become available, employers are beginning to require that their employees become vaccinated. The question, however, is whether such a practice is legal. According to one New York judge, the answer is that it may not be, at least when the directive comes from the state. That judge temporarily halted a New York State directive requiring that all health care workers be vaccinated for the seasonal flu and swine flu. Yet, as Kelly Brewington at the Baltimore Sun points out, many health care facilities are mandating that all employees receive the seasonal flu and H1N1 vaccines as a condition of their employment.

According to the EEOC, employers can compel all of its employees to take the influenza vaccine, with a couple of important exceptions:

An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

At least as far as the EEO laws are concerned, private employers can require flu shots as long as you are willing to accommodate employees’ disabilities and religions. The New York case raises different issues because it was state-issued mandate (which raises constitutional privacy issues), as compared to a rule specific to a private workplace.

Religious accommodation versus public image

According to an EEOC press release, the agency has filed suit against Ohio-based retailer Abercrombie & Fitch for alleged discrimination “against a 17-year-old Muslim by refusing to hire her because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.” According to the lawsuit, pending in Tulsa, Okla., an Abercrombie Kids store refused to hire Samantha Elauf for a sales position because she was wearing a head covering during her interview, which violated the company’s “Look Policy.” The lawsuit also claims that the store failed to accommodate her religious beliefs by making an exception to the Look Policy

According to the EEOC Compliance Manual on Religions Discrimination, “An employer’s reliance on the broad rubric of ‘image’ to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called ‘customer preference’) in violation of Title VII.”

Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. Undue hardship is a low standard – the proposed accommodation need only pose more than a de minimis cost or burden. At least one court, the 1st Circuit in Cloutier v. Costco Wholesale Corp. [PDF], has held that granting an exemption to a dress and grooming policy poses an undue hardship.

Anyone who has ever walked through a shopping mall knows that Abercrombie & Fitch portrays a certain image. Unless the EEOC can prove that the company promotes that image and maintains its “Look Policy” to exclude Muslim customers (or because of a preference for non-Muslim customers), it will have an uphill battle in proving that Abercrombie discriminated against this one job applicant by applying a facially neutral policy against her.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Sexual orientation is not a proxy for religious discrimination

Until Congress gets its act together and passes the Employment Non-Discrimination Act, it is still legal to openly discriminate against employees because of their sexual orientation. For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.

Employees, though, have found loopholes in the discrimination laws to successfully bring sex discrimination claims based on non-conformity to gender stereotypes. For example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed a effeminate gay man to bring a sex harassment claim based on allegations that his co-workers called him names such as Princess and faggot.

In Pedreira and Prowel, both employees also claimed religious discrimination, asserting that their lifestyle did not comport with their employers’ conservative religious views:

• Pedreira claimed that living openly as a lesbian did not comply with her employer’s religion, and that she was terminated because she did not hold its religious belief that homosexuality is sinful.
• Prowel claimed that his co-workers harassed him because his homosexuality did not match their religious views.

The Courts disagreed. Sexual orientation discrimination is not illegal, and employees cannot use religion as a proxy for sexual orientation. Religious discrimination both precludes employers from discriminating against an employee because of the employee’s religion, and because the employee fails to comply with the employer’s religion. The discrimination, however, must be targeted at a specific religion. The plaintiffs did not allege that their religion had anything to do with their terminations, or that their sexual orientation was tied to their religious beliefs. They merely claimed that their employers’ religious beliefs frowned on their lifestyles.

It is likely that sexual orientation discrimination will be outlawed in Ohio or nationwide by 2010 at the latest. Until then, this issue is one of morals for business owners. As for me, I think it’s reprehensible that this type of misconduct still occurs in what we advertise as the cradle of freedom.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

When is a failure to accommodate an employee’s religion actionable?

If an employee approaches your HR department and asks for an accommodation for his or her religion, you might think that your company has an automatic obligation to provide the accommodation. Reed v. United Auto Workers (6th Cir. 6/23/09) [PDF], suggests otherwise.

In Reed, a union member claimed that the UAW discriminated against him because of his religion by failing to reasonably accommodate his religious objection to financially supporting the union.

Under Title VII employers (and labor unions) have a statutory obligation to reasonably accommodate the religious observances of its employees, short of incurring an undue hardship. To establish a failure to accommodate claim, an employee must show: (1) that s/he holds a sincere religious belief that conflicts with an employment requirement; (2) s/he has informed the employer about the conflict; and (3) s/he was discharged or disciplined for failing to comply with the conflicting employment requirement. If an employee makes this showing, the employer (or, in this case, labor union) can avoid liability by showing that it could not reasonably accommodate the employee without undue hardship.

Reed’s claim failed because he could not show that he was discharged or disciplined as a result of his religious belief: “Unless a plaintiff has suffered some independent harm caused by a conflict between his employment obligation and his religion, a defendant has no duty to make any kind of accommodation.”

The next time you are faced with an employee requesting a workplace accommodation for some religious belief, do not necessarily assume that the accommodation is owed. The employee’s religious belief may not be sincere, the accommodation might be unreasonable and pose an undue hardship, or, as was the case in Reed, the failure to provide the accommodation may not result in any discipline or discharge. 

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Odd employees have a place – just maybe not in your workplace

I spent my summer between high school and college unloading trucks in a fabric warehouse. During my first week of work, one of my co-workers asked me if “Harlan” had gotten to me yet. As it turned out, Harlan was the warehouse joke. He held some strange ideas, and would take a stab at indoctrinating each new employee. Sure enough, later that same day Harlan cornered me and let me in on his view of the world – that a small cluster of Freemasons ruled the world from a secret office on the 36th floor of Rockefeller Center, that Lee Iacocca saved Chrysler by making a pact with Satan, and that the Israeli government would start the apocalypse by 2004.

I hadn’t thought about Harlan in years, but was reminded of him a few days ago when I came across Lizalek v. Invivio Corp. (7th Cir. 3/16/09):

Gary Lizalek’s religious beliefs make for a complicated identity. As a matter of faith, he understands himself to be three separate beings: (1) GARY C LIZALEK, “a trust that was created by the Social Security Administration … to generate assets for its beneficiary, the United States Government”; (2) Gary C. Lizalek, Trustee; and (3) Gary C. Lizalek, Steward, who “lends … consciousness and physical abilities to said Trust.” His employer asked that he stick with a single identity for professional purposes, but Lizalek refused. Shortly thereafter he was terminated. The district court held that this decision broke no law, and we affirm.

I could profoundly write about how a diligent background check could have revealed this employee’s oddities before he was hired, or about Title VII’s obligations to reasonably accommodate sincerely held religious beliefs unless it poses an undue hardship.

Instead, I’ll simply leave you with this thought. Most workplaces have someone like this employee. It’s up to you to figure out if this type of personality is the right fit for your business. Invivio hired him to deal with customers, and felt uncomfortable with him having that role in light of his bizarre behavior. Harlan was cutting fabric in a warehouse, and management did not mind his weird worldview, even if it sometimes distracted his co-workers. Every employee won’t be the right fit for every job; it’s management’s prerogative to weed out those employees that aren’t the right match for the particular business or position.

[Hat tip: Daily Developments in EEO Law]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

How to avoid a discrimination lawsuit in 5 easy steps

1. Don’t change your explanation about why an employee was fired mid-stream while in the midst of defending a discrimination claim.

2. Don’t refuse to assign meaningful work to a Muslim employee while at the same time keeping non-Muslim employees busy, or fire an employee for alleged lack of work, while at the same hiring others to perform the same exact assignments.

3. Don’t suggest to others that you speak over the phone about the employee, which suggests that you are trying to avoid a written record that can later be used against you.

4. Don’t tell people on 9/11 that “those people don’t belong
   here.”

5. Finally, and most importantly, don’t refer to a meeting about a Muslim employee’s supposed poor performance and termination as a “sand-nigger pile on.”

One Chicago law firm, in Hasan v. Foley & Lardner LLP (7th Cir. 12/15/08), failed to follow this advice. Remarkably, the district court, when faced with this mosaic of evidence, granted summary judgment to the employer. The 7th Circuit, however, reversed and sent the case back for trial:

Mr. Hasan submits that the facts in the record, while possibly weak proof of discrimination individually, together would allow a jury to infer that Foley terminated his employment because he is Muslim and of Indian descent…. Those facts include Simon’s and Hagerman’s anti- Muslim comments, Mason’s warning to Jaspan about Mr. Hasan’s religion, the suspicious timing of the downturn in his hours and evaluations following September 11, one partner’s testimony that Foley fired no other associates for economic reasons and did well financially in 2001 and 2002, the Business Law Department’s treatment of its other Muslim associates and Foley’s shifting justifications for firing Mr. Hasan….

The record shows that Simon attended the meeting at which the partners decided to fire Mr. Hasan and that he participated in that decision. That others were also involved in making that decision does not make Simon’s participation irrelevant…. There is also evidence in the record that Simon’s criticisms at that meeting incited anti-Muslim and racially charged commentary from other partners. Vechiola’s description of the meeting as a “sand-nigger pile on” suggests as much, as does Pfister’s comment that Simon had targeted Mr. Hasan just as he had targeted another lawyer, albeit unsuccessfully. Viewing the facts in the light most favorable to Mr. Hasan, the record would allow the rational inference that Simon not only participated in the decision to fire Mr. Hasan but also may have instigated it.

This case might not necessarily break new legal ground, but it is a good reminder that even those that should know better sometimes slip, and how a lapse in judgment can come back to bite an employer.

[Hat tip: MMMG Law Blog]

Religious accommodation for prayer becomes hot issue

As I've written before, Title VII requires employers to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Recently, the issue of accommodating employee’s prayer at work has gotten a lot attention. Articles in both the USA Today and the Wall Street Journal recount stories of Muslim employees whose employers refused to permit time at work to accommodate daily prayer.

The following table, courtesy of the EEOC and the USA Today, illustrates the rise of religious discrimination claims brought by Muslims, in the last 10 years, and especially after Sept. 11:

Year	Muslim	Jewish	Catholic	Protestant
1998	285	276	118	159
1999	282	287	101	171
2000	284	282	134	178
2001	330	294	143	210
2002	720	317	118	204
2003	598	260	145	241
2004	504	275	135	228
2005	507	281	122	206
2006	594	282	118	233
2007	607	287	177	258

 

Two facts stick out from this table: religious bias claims are way up across the board, and claims brought by Muslim employees lead the pack by an eye-popping margin. Before you knee-jerk prohibit Muslim (or other) employees from praying at work, consider these numbers, what real effect five minutes of prayer will have on your organization, and whether you want to be defending the bona fides of that effect at the EEOC or in court.

Time off for religious holidays

Today is Rosh Hashanah, the Jewish New Year. As it falls during the work week, many Jews (including yours truly) are taking the day off. The question, however, is what are an employer's obligations to an employee who asks for a day off to observe a religious holiday?

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer's business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah, and next week for Yom Kippur, may impose an undue hardship, depending on the nature of the work performed, the employee's duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the High Holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

EEOC issues new guidance on religious discrimination

This week, the EEOC issued three new publications on religious discrimination: a new chapter in its Compliance Manual, a Q&A, and Best Practices for Eradicating Religious Discrimination in the Workplace. While these documents are not binding, and a court is free to interpret Title VII as it sees fit, it is always good to know how the EEOC views the workplace discrimination landscape.

The Best Practices will prove to be the most helpful for employers. It's not earth shattering, but does give businesses a helpful synopsis of standards that will help minimize liability, such as:

• Carefully and timely recording the accurate business reasons for disciplinary or performance-related actions.
• Ensuring that an anti-harassment policy covers religious harassment.
• Training managers and supervisors on how to recognize religious accommodation requests from employees, and developing internal procedures for processing religious accommodation requests.
• Making an individualized decision instead of one based on stereotypes in determining whether a request for an accommodation poses an undue hardship

[Hat tip: Connecticut Employment Law Blog and Manpower Employment Blawg]

It's a Discriminatory World After All - Sikh sues Disney for banning his turban

I am a Sikh man and the turban that I wear is a religiously-mandated article of clothing. My supervisor tells me that my turban makes my coworkers "uncomfortable," and has asked me to remove it. What should I do?

If a turban is religiously-mandated, you should ask your employer for a religious accommodation to wear it at work. Your employer has a legal obligation to grant your request if it does not impose a burden, or an "undue hardship," under Title VII. Claiming that your coworkers might be "upset" or "uncomfortable" when they see your turban is not an undue hardship.

The above is the EEOC's position on the accommodation of religious articles of clothing. I bring this up because Disney has been sued by a practitioner of the Sikh religion, who claims he was denied a job because of his turban. According to a press release by the Sikh American Legal Defense and Education Fund:

Mr. Channa applied for a job as a musician with Disney in the Fall of 2006 but was told that he would not be hired because he lacked "the Disney look" - a negative reference to his religiously-mandated dastaar (Sikh turban).

This lawsuit will most likely be decided on one question - does it pose an undue hardship on Disney for one of its performers to wear a turban? This question is not as easy to answer as it might appear. Disney World might be the most controlled environment on the planet. Employees are not called employees, but cast members. Every worker is considered integral to the suspension of disbelief that Disney is trying to create. Thus, if Mr. Channa is going to be performing, shouldn't he be required to wear the uniform, even if it means not wearing his turban?

On the flip side, Disney permitted Mr. Channa to interview and rehearse with his turban. If the specific uniform was a requirement for the job, why lead him along only to pull the rug out from under him at the last minute. Plus, I'd image that a company as large as Disney has had cast members in the past who have not been able to match the uniform exactly. For example, would Disney refuse to hire a disabled musician if he had to perform in a wheelchair?

It seems to me that Disney dropped the ball on this one. Can there really be an undue hardship on Disney by allowing Mr. Channa to wear his turban? The EEOC defines undue hardship as an accommodation that "requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work." Religious head wear does not impact any of these factors. This is a lawsuit that Disney should settle and settle quickly, if for no other reason that to avoid the bad press that its small world apparently does not include Sikhs.

Tepper v. Potter sets potentially narrow standard for religious accommodations

The Sixth Circuit this week handed down a significant decision that requires a job loss or some actual discipline before the denial of a religious accommodation can be actionable.
After several years of working for the U.S. Postal Service as a full-time letter carrier, Martin Tepper became a Messianic Jew, strictly observing the Sabbath every Saturday. From April 1992 through January 2003, the USPS accommodated his religion and did not require him to work Saturday's or Jewish holidays. At the time, its staffing levels enabled that accommodation without disrupting the rotating day-off schedule of other employees. It is estimated that the accommodation cost the USPS between $7,000 and $9,000 per year in overtime payments to covering employees. By 2003, however, Tepper's branch suffered a decrease in staffing levels, from 36 employees to 32 employees. Management found it more difficult to accommodate Tepper's day off, and had to assign co-workers to work more days than the rotating schedule allowed. While no co-worker formally complained about the arrangement, enough grumbled for their union to hold a meeting, to which Tepper was not invited and at which his co-workers unanimously voted to recommend ending the Saturday accommodation. Shortly thereafter, the Post Office ended the accommodation. Instead, it permitted Tepper to use annual leave and leave without pay on Saturdays, and encouraged him to reserve some of his vacation time for the Saturday absences.
While continuing to work at the Post Office, Tepper sued, contesting the removal of the Sabbath accommodation and claiming that the use of leave without pay reduced his annual pay and future retirement benefits. The District Court and the Sixth Circuit disagreed and found that the discontinuing of the accommodation did not discriminate against Tepper. The Court narrowly read the required elements of a failure to accommodate claim, and required Tepper to prove that he was either "disciplined or discharged" for failing to comply with an employment requirement that conflicted with his religious practice. Because a loss of pay does not amount to "discipline or discharge" Tepper could not prove his case.
As I wrote a couple of months ago (click here for my post on religious accommodation claims), common examples of reasonable accommodations for an employee's sincerely held religious beliefs are flexible scheduling, voluntary substitutions or job swaps, and job reassignments. The Tepper Court suggests, if not impliedly holds, that the denial of an accommodation, no matter how reasonable the request might be, is not actionable unless the affected employee suffers actual discipline or a job loss as a result of the denial. Thus, Tepper might have had a viable claim if he had quit the Post Office claiming religious intolerance, or if he observed his faith, did not show for scheduled Saturdays, and was terminated for attendance violations. I'm not sure that we want to force a job loss on a devout employee before that employee can claim a failure to accommodate. The Tepper decision seems to be much too narrow a ruling of the conduct Title VII is supposed to protect.
While Tepper is now the law in Ohio, Michigan, Kentucky, and Tennessee, I caution that all companies tread very lightly before denying or rescinding a religious accommodation in its wake. The next employee might not be as proactive as Mr. Tepper, instead opting to resign or force a termination before suing for the failure to accommodate.
Click for a copy of Tepper v. Potter.

Religious discrimination claims rise

This morning's Pittsburgh Post-Gazette reports on the increasing number of religious discrimination cases. Title VII (and Ohio's counterpart, R.C. 4112), prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. For example, religious harassment is just as illegal as sexual harassment, and an employer has the same duty to investigate a claim by a Muslim employee that he is being harassed on account of his religion as it would have to investigate a claim of sexual harassment by a female employee. In our post-9/11 world, such claims have become more and more prevalent.

The law also requires employers to reasonably accommodate the sincerely held religious practices of an employee or prospective employee, unless doing so would create an undue hardship. Some common examples of reasonable accommodation are flexible scheduling, voluntary substitutions or swaps, job reassignments, and lateral transfers. These situation most often arise when an employee requests a day off for a religious holiday (such as Good Friday or Yom Kippur), or seeks not to be scheduled to work on the Sabbath. An employer can claim undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs. For example, hiring a new employee or rescheduling other employees would probably present an undue hardship, while other employees volunteering to cover a shift most likely would not. Moreover, a religion does not have to be traditional to qualify for protection. The Post-Gazette article cites a California case in which a vegan bus driver won a judgment against a county transit agency for firing him after he refused to hand out "free hamburger" fliers for a fast food restaurant.

As workplaces are becoming more culturally, ethnically, and religiously diverse, religious discrimination will continue to be a hot button issue. Employers should not ignore requests for accommodations, no matter how strange they might seem. One person's Mind Body Energy is another person's Christianity. The accommodation may have a small price associated with it, but I can assure you such a price will almost always be less than the price of defending a discrimination lawsuit.

I can't make this stuff up

Ollis v. HearthStone Homes presents a textbook example of how not to make personnel decisions, and is also just plain funny.

The owner and president of HearthStone, John Smith, practices a fringe religion that focuses on Mind Body Energy (MBE) sessions to cleanse one's negative energy. He required his employees attendance at such MBE sessions to enhance their work performance. The case recounts Smith's interesting MBE practices:

According to Smith, an employee’s negative energy could be discovered either through a machine that tests a person’s electromagnetic energy field or through a manual process called “muscle testing.” Muscle testing may require a person to extend his or her arms while answering “yes” or “no” questions. If the person’s extended arms remain strong while questioned as someone pushes down on the arms, the answer is “yes,” whereas, weak arms indicate an answer of “no.” Another example of muscle testing is to place two fingers together and to answer “yes” or “no” questions. If the fingers remain together, the answer is “yes”; whereas, if they separate, the answer is “no.” Smith used muscle testing to make business decisions. Smith equates muscle testing “to someone who may pray before they make decisions.”

On one occasion, Smith determined by muscle testing an employee that drainage problems in a HearthStone subdivision were caused by that employee's ancestors perishing on the land during the Ice Age. Smith determined that the employee was unknowingly defending the land on behalf of her ancestors, and required her to attend MBE sessions to cleanse her negative energy.

Smith also used muscle testing in conducting a sexual harassment investigation against the plaintiff, Doyle Ollis, a devout Christian. After the investigation, Smith terminated him for “poor leadership and lack of judgment," which the jury found to be pretext for Ollis's opposition to Smith's MBE practices and religious discrimination. For the termination, the jury awarded Ollis a whole whopping dollar in damages (plus attorneys fees). Perhaps the jury's low award was influenced by Ollis's admission that he had asked the complaining female subordinate several inappropriate questions, including asking her about her “freakiest” sexual encounter, how long she had known her spouse before she had sex with him, how many sexual partners she had, and if she wore thong underwear. As an aside, HearthStone later terminated the complaining employee for reportedly “removed her clothing at a golf outing and ... doing cart-wheels naked on a golf course.”

Like I said, I can't make this stuff up.