This week in racism (part 2): Macklemore

Last night, I caught up on Louie on my DVR. At the end of the episode, Louis CK made the following observation about love:

How do you know when you really love someone? When you can reveal your secret racism to them.

Well, damn, Macklemore must love us all, because at a concert Sunday night he performed dressed as a stereotypical Jew—wig, beard, and large, stereotypical hook nose—while singing a song about saving money (photos here).

For his part, the rapper denied any anti-Semitic intent, tweeting, “A fake witches nose, wig, and beard = random costume. Not my idea of a stereotype of anybody.” He later posted a half-hearted apology on his website, again claiming the getup was unintentional.

When you are conducting investigations in your workplace, let common sense be your guide. If it looks like a bigoted stereotype, and dresses like a bigoted stereotype, no amount of implausible deniability will make it anything other than a bigoted stereotype. Does anyone really believe that wearing a big hooked nose while singing about money was unintentional? Use your BS sensor to sift out the nonsense and reach the truth of the matter. It will make your workplace investigations that much smoother.

Until tomorrow:

 

Differences of opinion show why we need ENDA

In response to last Tuesday’s post on an Ohio case refusing to protect “sexual orientation” under Ohio’s sex-discrimination laws, EEOC Commissioner (and Twitter friend) Chai Feldblum recommended that I check out a recent decision from the District of Columbia, Terveer v. Billington.

In that case, Peter Terveer, a Library of Congress employee, sued his supervisor for sex discrimination, alleging that the supervisor had created “a hostile environment” by subjecting him to a slew of anti-gay comments.

The employer argued for the dismissal of Terveer’s complaint, since Title VII does not include protections against sexual-orientation discrimination. The court disagreed, and permitted Terveer’s case to proceed under Title VII’s protections from sex discrimination and religious discrimination:

Under Title VII, allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim.… Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes.… 

Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do “not hold or follow [their] employer’s religious beliefs.” … [P]laintiffs state a claim of religious discrimination in situations where employers have fired or otherwise punished an employee because the employee’s personal activities or status—for example, divorcing or having an extramarital affair—failed to conform to the employer’s religious beliefs.… The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual.

This article at Slate.com argues that Terveer shows that anti-gay job discrimination is already illegal. To the contrary, the more prudent conclusion is that Terveer, when contrasted against Burns v. The Ohio St. Univ. College of Veterinary Medicine (the Ohio case I discussed last Tuesday), demonstrates that different courts can, and do, reach different conclusions on this issue. Instead of showing that anti-gay discrimination is already illegal, these cases illustrate the need to amend Title VII to make it absolutely clear that sexual-orientation discrimination is not only abhorrent, but is also illegal.

Social-cultural discrimination does not equal race discrimination

Does a policy that prohibits employees from wearing dreadlocks discriminate against African-Americans? According to one federal court, in EEOC v. Catastrophe Management Solutions [pdf], the answer is no.

CMS maintained the following policy, which it interpreted to prohibit employees from wearing dreadlocks:

All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines … hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

The EEOC claimed race discrimination following CMS’s rescission of a job offer after a job applicant refused to cut her dreadlocks. The court, however, disagreed, dismissing the EEOC’s lawsuit. The court made a key distinction between immutable, protected characteristics (such as race) and mutable, unprotected characteristics (such as hairstyle):

It has long been settled that employers’ grooming policies are outside the purview of Title VII…. The EEOC asserts that the policy itself was discriminatory because it was interpreted to prohibit dreadlocks, which is a hairstyle. Title VII prohibits discrimination on the basis of immutable characteristics, such as race, sex, color, or national origin. A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic….

The court also refused to take the EEOC’s bait to equate culture to race:

According to the EEOC, the definition of race should encompass both physical and cultural characteristics, even when those cultural characteristics are not unique to a particular group. But as the defendant points out, to define race by non-unique cultural characteristics could lead to absurd results. For instance, a policy prohibiting dreadlocks would not apply to African Americans but would apply to whites. Moreover, culture and race are two distinct concepts….

Title VII does not protect against discrimination based on traits, even a trait that has a socio-cultural racial significance.

I’ve discussed dreadlock discrimination before, but in the context of religious discrimination. In this context, the court got this case 100% correct. Dreadlocks are not a “black” thing. Heck, if you saw any of the photos of 2011’s Occupy Wall Street movement, I can guarantee that you saw lots of photos of white folks with dreadlocks. Nevertheless, this case serves a good reminder that grooming policies remain high on the EEOC’s radar, even if they raise much more of an issue for national origin and religion than race.

EEOC issues new guidance on religious dress and grooming in the workplace

Law.com, one of the best websites for legal information, recently relaunched. Its relaunch features posts by well-known bloggers, including yours truly.

My first post at Law.com discusses the EEOC’s recently published Q&A on reasonable accommodation of religious dress and grooming in the workplace. Please click over to check out the revamped Law.com, and my first contribution.

Cursing as religious harassment—context matters

With The year was 1985. I was 12 years and spent the summer at overnight camp. When you spend 8 weeks alone in the woods with a dozen other 12-year-old boys, you curse, a lot. After 8 weeks of “f-this” and “f-that,” it shouldn’t have surprised my parents when, at the dinner table on my first night home from camp, seeking my seasoning on my meal, I asked my mom to “pass the f***king salt.” Needless to say, they were very surprised, and very un-amused.

I thought of this story after reading Griffin v. City of Portland (D. Ore. 10/25/13) (h/t: The Blue Ink), a case in which an employee of deeply religious convictions claimed religious harassment based, in part, on her co-workers’ repeated taking of the Lord’s name in vain.

The court concluded that a line exists between the use of general profanity in the workplace and the use of profanity directed at the plaintiff because of her religion:

The record suggests that Parks and Recreation employees at the Mt. Tabor yard frequently used profanity out on the yard and in the office. Suggestions in the record that profanity was used even when Ms. Griffin was not present indicate that much of it was not motivated by her religious beliefs. As I interpret the guiding precedent, even the category of profanity that uses “God” or “Jesus Christ” as part of a curse does not necessarily trigger the “because of” standard. If the speaker used the terms out of habit, perhaps without even thinking of their religious connotations, and not because of Ms. Griffin’s beliefs, then such language would not satisfy the “because of” standard and could not be used to support the claim.

With language, context matters. For example, it was okay to use salty language to ask for the salt at summer camp; at the dinner table with my parents, not so much. Similarly, Ms. Griffin’s employer will skate on her harassment claim if she cannot prove that her co-workers cursed “because of” her religion.

Nevertheless, employers should take seriously all harassment complaints in the workplace. If an employee complains about profanity, don’t ignore the complaint. Most cases of workplace profanity won’t turn into a lawsuit. Nevertheless, when it rears its head, use it as a tool to educate your employees appropriate versus inappropriate language, the value of context when choosing words, and the importance of being tolerant and considerate around all employees.

A Festivus for the rest of us (at work)

Yesterday, Evil Skippy at Work answered a reader’s question about whether an employer can prevent its employees from celebrating Festivus in the workplace.

“What is Festivus,” you ask? “I’ve never heard of it.” Watch this short, five-minute instructional video, and then let’s talk.

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As you can see, Festivus, is not a religious holiday. It’s a parody, celebrated on December 23 as a non-commercialized alternative to the holiday season. According to Wikipedia, it started as a family tradition of Seinfeld writer Dan O’Keefe, who brought it into our collective consciousness by incorporating it into a 1997 episode of the show.

Which brings us back to the original question—can an employer ban Festivus at work? Because it’s a secular holiday, Title VII’s religious accommodation requirements do not apply. Unless, of course, it is an expression of an employee’s atheism, which is a “religion” Title VII protects and for which an employer must make a reasonable accommodation.

So, if the employee requesting a workplace Festivus Pole is doing so as an expression of his or her sincerely held atheism, then you should think long and hard before you deny the request. If, however, there is no religion supporting the request, then no law would prohibit you from banning Festivus at your company. Then again, why would you want to in the first place?

Regardless, if you are lucky enough to work for a company that embraces this holiday, consider it a Festivus Miracle.

Halting the tide of religious-discrimination claims

According to the Wall Street Journal, religious-discrimination claims are on the rise.

Companies big and small are being affected by the complex intermixing of work and faith. The trend toward a seven-day workweek sometimes treads on the Sabbath. Religious garb and grooming clash with dress codes. Job duties that intersect with changing public policies—for instance, issuing a marriage license to a gay couple—test some workers’ adherence to their religious beliefs.

While religious-discrimination claims only comprise a small portion of all charges filed with the EEOC, they have more than doubled over the past 15 years, growing at a rate faster than race or sex claims.

These claims are not going away. Indeed, a recent survey by the Tanenbaum Center for Interreligious Understanding, entitled,  “What American Workers Really Think About Religion,” concluded that religious discrimination is rampant in the American workplace.

Some the survey’s more eye-opening findings include:

• Nearly half of non-Christians surveyed (49%) believe that their employers are ignoring their religious needs.
• Employees in companies without religious diversity policies are almost twice as likely to be searching for another job as their counterparts in companies with policies.
• Among American workers at companies where religious bias had been reported to managers or human resources, nearly one-third of workers report that the company took no actions to stop the bias.
• Nearly six out of ten atheists (59%) believe that people look down on their beliefs, as do nearly one-third of non-Christian religious workers (31%) and white evangelical Protestants (32%).
• Atheists (55%) are substantially more likely than workers in any other group to report that they themselves face a lot of discrimination today. Unlike white evangelical Protestants, however, atheists are also more likely than workers overall to believe that Muslims (66%), gay and lesbian people (63%), Hispanics (50%), and women (39%) experience a lot of discrimination.

What can you do to make your workplace religiously diverse and tolerant, so that you are not a target for these claims (also via the Tanenbaum Center)?

1. Ask: When an employee comes to work in a turban, find out if this is due to a sincerely held religious belief. If so, you should try to accommodate (unless it causes too big of a burden).

2. Respect Differences: Americans don’t know much about others’ religions. Tensions often arise around religious difference because of a lack of information or misinformation. If your employees need information to understand different faiths and to make co-workers feel welcome, make it available.

3. Communicate: Do you have written policy on religious accommodation. The Tanenbaum Center suggests that the mere existence of a written policy on religion, in itself, reduces the perception of bias in the workplace. Of course, merely having a policy is never enough. You must communicate it to your employees and enforce it when the need arises.

4. Think Outside the Box: When an employee requests a religious accommodation, think creatively about how to meet the needs of the employee and the needs of the company. Communication and compromise are key. Unless you talk, you cannot know what your employee needs and your employee cannot know what you’re willing to offer. Is these circumstances, lack of communication (and not intentional discrimination) is the root cause of most lawsuits.

The devil went down to the EEOC… A story on religious accommodation

Halloween is almost upon us, which mean that it’s only appropriate to discuss one of the EEOC’s last actions before the government shutdown—the filing of a lawsuit against two Pennsylvania energy companies for failing to accommodate an employee’s religiously based fear of using the newly installed time and attendance biometric hand scanners. From the EEOC’s press release:

Butcher repeatedly told mining officials that submitting to a biometric hand scanner violated his sincerely held religious beliefs as an Evangelical Christian. He also wrote the mining superintendent and human resources manager a letter explaining the relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.

The mining companies refused to consider alternate means of tracking Butcher’s time and attendance, such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers. The EEOC charges that Butcher was forced to retire because the companies refused to provide an accommodation to his religious beliefs.  

According to the EEOC lawyer litigating this case, “In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs. Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.”

Before you dismiss an employee’s request for a religious accommodation as silly or outrageous, stop, think, and decide whether the expense or difficultly in making the accommodating exceeds the cost and aggravation of defending a possible discrimination lawsuit. The answer to that equation, should, more often than not, guide your decision.

For more on this issue, I recommend pages 229 – 230 of my latest book, The Employer Bill of Rights, where I discuss a former co-worker of mine who believed that Lee Iacocca saved Chrysler by making a pact with the devil, and how the company for which we worked accommodated his beliefs (true story).

The biggest pitfall of social recruiting

Jobvite recently the results of its 2013 Social Recruiting Survey. According to Jobvite, almost all recruiters are using some form of social networking to source candidates for jobs. Ninety-four percent of recruiters use, or plan to use, social media to recruit, and 78 percent have hired via social media.

Yet, as more companies use social media information to source job candidates, more companies expose themselves to legal risk from those same hiring decisions.

Case in point—according to Jobvite, 28 percent of recruiters report that they would react negatively to overly religious posts or tweets on a candidate’s social media profile.

Here’s the problem. It’s illegal—under Title VII and myriad parallel state civil rights laws—for a company to make an employment decision based on one’s religion. Thus, if a recruiter passes on a candidate because of the religious nature of a Facebook post or Tweet, that recruiter has exposed the employer to potential liability under Title VII’s religious protections.

Yet, as the chart above reveals, there is lots of good information to glean from an applicant’s social trail: references to illegal drug use, sexual posts, profanity, and poor communication skills. Thus, the dilemma for employers is how to avoid the risk of exposure to protected information, while allowing valuable, lawful information to filter through to the decision makers?

The answer? Don’t let anyone in the chain of hiring view candidates’ social media profiles. Train an employee who is insulated from the hiring process to do your social media searches, scrub all protected information, and provide a sanitized report to those responsible for making the hiring decision. That way, no one can argue that protected information posted on a social network illegally influenced a hiring decision.

[Hat tip: Lorene Schaefer’s Win-Win HR]

Happy 10th Anniversary to my best friend

Ten years ago today, I married my best friend. To celebrate, enjoy this “greatest hit” from the archives — Accommodating religions starts at home (a love story).

Title VII does not give employees the right to proselytize

I believe that everyone’s relationship with God (whether you call that deity Yahweh, Jesus, Allah, Vishnu, Buddha, or something else) is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today’s discussion, which centers on Hall v. Tift County Hosp. (M.D. Ga. 6/10/13). In that case, the court rejected an employee’s religious discrimination case stemming from discipline for sending a Christian-themed email sent to a gay co-worker.

Pamela Hall, a Baptist, learned that one of the her co-workers, Amanda Dix, was a lesbian. Believing that she had a duty to save Dix from the “sin” of “homosexuality,” Hall placed a pamphlet, entitled, “How Should Christians Respond to ‘Gay’ Marriage?” in Dix’s locker. Rightfully concerned that Dix would ignore the pamphlet, Hall sent her a follow-up email, which said in part:

I saw that book in Kentucky when we went to the creation museum. I don’t want to hurt your feelings but I felt led to leave that for you and I would not be a true friend if I ignore the responsibility that God has left for his children to share the message and hold each other accountable…. Sodomy is a sin, gay people live in sin. It is not about self gratification…. When we are in God’s will we will WANT to live right and live for him and do what the Bible says and that is to go and tell! Everything else is not important…. There is only one way to heaven.

Dix complained to management, which investigated and demoted Hall from her supervisory position. In her lawsuit, Hall alleged that when the HR Administrator communicated the demotion, she said, “We could not share our faith at work. We could not talk about Jesus at work.”

Hall claimed that discipline for discussing religion at work discriminated against her because of her religion. In dismissing Hall’s case, the court disagreed.

Other employees have been disciplined for sending offensive or harassing emails. Two employees were terminated in April of 2009 for distribution of racial, ethnic, and religious materials in the form of an email that was offensive to other employees. The email makes specific reference to Islam, blacks, black Muslims, and Hispanics….

The question is whether Plaintiff was discriminated against because of her religion — was she discriminated against because she is a Christian? Without producing evidence of a non-Christian employee in the same job being treated differently after engaging in the same activity, Plaintiff cannot establish a prima facie case.

As I’ve said before, religious proselytization does not belong in the workplace. If you permit one employee to share his or her religious views in the workplace, you will have a difficult time disciplining or terminating another for the same reason. Employers and their employees should keep religion where it belongs—in the home and in places of worship.

photo credit: danny.hammontree via photopin cc

Cruise-ing for a lawsuit: EEOC sues company for forced practice of Scientology

The EEOC has filed against a Miami, Florida, medical service provider, alleging that it has violated Title VII’s religious discrimination provisions by forcing its employees to practice Scientology. According to the agency’s lawsuit, Dynamic Medical Services required its employees, as a condition of their employment, to spend at least half their work days attending Scientology courses.

The EEOC’s complaint [pdf] details the bizarre job requirements, which included:

• Screaming at ashtrays.
• Staring at someone for eight hours without moving.
• Undergoing a “purification audit” by connecting to a Scientology religious artifact known as an “E-meter.”

Employees who refused to participate in the Scientology religious practices, or conform to Scientology religious beliefs, were terminated.

If any of the EEOC’s allegations in the lawsuit are true, the agency is going to have an easy time winning this case, which serves a good reminder that an employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs.

Hat tip: Lowering the Bar

photo credit: Rob Sheridan via photopin cc

A Muslim walks into a store… Corporate “Look Policies” and religious discrimination

I’ve written before about the tension between companies’ preferences for how employees look and the religious freedoms of those employees (here, here, here, and here).

One company that has gone many rounds in litigation over this issue is Abercrombie & Fitch. Anyone who has walked past an Abercrombie store knows the waft of its familiar fragrance. Abercrombie is not only interested in consistency in how its stores smell, but also how the employees who work in those stores look. To this end, Abercrombie maintains a formal “Look Policy,” detailing what employees are, and are not, permitted to wear. One of its bans is on headwear. According to Abercrombie, it has made at least 70 exceptions to its Look Policy in the last seven year, all on a case-by-case basis, including some religious accommodations for hijabs.

In EEOC v. Abercrombie & Fitch Stores (N.D. Cal. 4/9/13) [pdf], the EEOC alleges that a Milpitas, California, Abercrombie stored refused to accommodate Halla Banafa’s Muslim faith when it refused an exception to its Look Policy for her head scarf. The stored clued Banafa into the fact that her religion might be an issue when it asked her during the interview, “You're a Muslim, right?”
Abercrombie argued that it did not have to accommodate Banafa because it was an undue hardship to deviate from its Look Policy in her case. Specifically, Abercrombie argued that allowing the exception “would disrupt its careful branding efforts, resulting in customer confusion,” and that it would “hurt store performance.”

The court, however, sided with the EEOC, granting its motion to strike the store’s undue hardship defense:

Abercrombie does not offer any studies demonstrating a correlation between failure to comply with the Look Policy and either customer confusion or decreased sales. Nor does it offer into evidence any of the store reports that linked poor sales performance with lack of adherence to the Look Policy. Rather, Abercrombie offers only the seemingly speculative assertion on the part of its executives that the correlation exists…. Abercrombie’s executives consider adherence to the Look Policy important and part of their core strategy, yet they are unable to furnish any evidence outlining the degree to which Look Policy compliance affects store performance or brand image…. [T]he court finds that Abercrombie’s proffered evidence affords little basis upon which a reasonable jury could conclude that Abercrombie would be unduly burdened in permitting Ms. Banafa to wear a hijab at work.

This opinion is in line with that of at least two other courts that have ruled on the same issue under Abercrombie’s Look Policy (here and here).

The lessons to be learned?

1. No good comes from asking a potential employee about his or her religion during a job interview.
2. If you are going to selectively grant exceptions to work rules, your decisions will be scrutinized if later challenged in litigation, and your better have good reasons available.
3. If you hope to claim an undue hardship defense to a religious accommodation claim based on your company’s image, you need to have the hard data to back your claim. Hypothetical hardships likely will not carry the day.

[Hat tip: Chai Feldblum]

Fringe “religions” (veganism?) raise interesting problems for accommodation requests

Like most medical facilities, Cincinnati Children’s Hospital appears to require that all of its employees receive an annual flu shot. It fired Sakile Chenzira, a customer service representative, for refusing to comply. Chenzira sued, claiming that because the flu vaccine contains eggs the requirement violated her religion—veganism—which prohibits the ingestion of any animals or animal by-products.

In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 12/27/12) [pdf], the federal court denied the hospital’s motion to dismiss the religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation.

In denying the motion to dismiss, the court stated:

The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.

In other words, the court punted. It allowed the parties to test in discovery whether Chenzira’s veganism rises to the level of a sincerely held religious belief. For what it’s worth, the lone other case I could find that discussed whether veganism is a religion worthy of protection under employment discrimination laws—Friedman v. Southern Cal. Permanente Med. Group (Cal. Ct. App. 9/24/02)—concluded that veganism is not a religion, but a personal philosophy and way of life.

This case raises an interesting question—how far should businesses go to accommodate employees’ requests for special treatment. I cover this issue in depth in The Employer Bill of Rights: A Manager’s Guide to Workplace Law, concluding, “Sometimes, the path of least resistance makes sense.”

For a hospital, there may not be a path of least resistance when comes to public health issues such as flu vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.

For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Probably. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Possibly.

In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How your incorporate those other factors into your accommodation decision-making is often more important than simply answering the legal question.

[Hat tips: The Employer Handbook Blog, Employment & Labor Insider, and Jottings by an Employer’s Lawyer]

Accommodating religions starts at home (a love story)

Nine years ago today I got married. Our wedding was not what you’d call traditional. I’m Jewish and my wife is Catholic, and we wanted our ceremony to blend the best of both traditions. While my wife’s dream wedding included her dad walking her down a church aisle, we were willing to sacrifice if we could not find a priest and a rabbi who would accommodate our wishes. With nervous trepidation, we met with the priest of Colleen’s parish, who, as it turned out, was 100 percent on board with our plan. We next found a rabbi, and all of us worked together to craft the ceremony we wanted: in a church, under a chuppah, with a beautiful blend of both religions and our respective traditions and customs.

There has been a lot of ink spilled lately about employers not accommodating employees’ religions. Whether it’s Disneyland refusing to permit a Muslim employee to wear a hijab, or a Burger King franchise denying the request of a Pentecostal employee to wear a skirt instead of pants, or a New York state university firing an employee because of his “I ♥ Jesus” lanyard, employers seem to have forgotten how to accommodate. People are quick to lay blame at the feet of these companies. Yet, teaching how to accommodate starts at home. If children learn exclusion, how can we expect them to act any differently as adults? If nothing else, I know my kids (being raised Catholic, but with a healthy dose of Jewish in the home) should not make these mistakes as they grow. We won’t let them, and, as they age, I hope they won’t want to.

(Happy Anniversary Colleen. I love you.)

Co-worker complaints about revised schedules may not be enough to create undue hardship for religious accommodation

Four days after the University of Tennessee, Knoxville, hired Kimberly Crider, she informed her supervisor that she was a Seventh Day Adventist, which precluded her from working from sundown Friday through sundown Saturday. Crider’s job responsibilities included monitoring an emergency cell phone on a rotating basis during weekends. When Crider’s co-workers refused to exchange shifts to accommodate her, the university determined she was unable to fulfill her job duties and terminated her. As you would guess, Crider sued, claiming religious discrimination under Title VII.

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. In Crider v. University of Tennessee, Knoxville (6th Cir. 7/23/12) [pdf], the 6th Circuit applied these principles and concluded that a jury should decide whether the university lawfully refused to force its employees to change shifts to accommodate a co-worker’s religion.

UTK insists that requiring its employees to work Saturday shifts every other weekend would have created an undue hardship for Crider’s former co-workers…. UTK … insist[s] that a significant effect on a co-worker will suffice to establish an undue hardship…. Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation “without undue hardship on the conduct of the employer’s business.”

The Court concluded that “employee dissatisfaction or inconvenience alone” does not create an undue hardship. Instead, “it is the effect such dissatisfaction has on the employer’s ability to operate its business that may alleviate the duty to accommodate.”

According to the EEOC, “It would pose an undue hardship to require employees involuntarily to substitute for one another or swap shifts.” Some might argue that this case undercuts the EEOC’s position. In reality, I think that the employer simply failed to prove the undue hardship with actual facts and data relative to its operations.

If you are planning on rejecting an employee’s request for a shift change as a religious accommodation, you must be able to support the claim of hardship with facts.

• How does it impact your scheduling?
• Do you have to hire additional staffing to cover for the missed shifts?
• How much would it cost you in added overtime or other premium wages?
• How often would you have to pay overtime or other premium wages?

Without providing answers to these questions, you will be hard-pressed to prove that a shift swap creates an undue hardship.

Woman fired for IVF will test bounds of Title VII’s ministerial exception

It’s no secret that I approach employment law from a pro-employer viewpoint. It’s right in the blog’s title: The Ohio Employer’s Law Blog. Yet, despite my management-side tendencies, I call ‘em as I see ‘em, and every now and again a story about an employer’s treatment of an employee outrages me. This is one of those stories.

According to ABC News, an Indiana Catholic church has fired one of its school teachers, Emily Herx, after it learned she was undergoing fertility treatments to become pregnant. In her Title VII lawsuit [pdf], she claims a senior church official told that her attempt to become pregnant through in-vitro fertilization made her a “grave, immoral sinner.” According to the lawsuit, when Herx appealed her termination to the Bishop, he called IVF “an intrinsic evil, which means that no circumstances can justify it.”

If those two statements are true, there should be little doubt that the church fired Herx because of her IVF treatments. For that reason, the outcome of this case will likely hinge on two legal issues:

1. Does Title VII’s prohibition against sex and pregnancy discrimination cover IVF treatments?
2. Does Herx’s employment falls outside Title VII’s ministerial exception that protects a religious institution’s constitutional right in the selection of ministerial employees, as recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC?

If the court answers both questions with a “yes,” then Herx wins.

On the first issue, I defer (as will the court) to the 7th Circuit’s 2008 decision in Hall v. Nalco Co., which concluded that Title VII’s pregnancy discrimination amendments cover IVF as a medical conditions related to pregnancy or childbirth. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures, such as IVF treatments.

This case, however, is complicated by the fact that Herx’s IVF is contrary to the doctrine of her religious employer. According to Herx’s lawsuit, she worked as a secular literature and language arts teacher. She is not Catholic, never taught any religion classes, and was not required to complete any training or education in the Catholic faith as a condition of her employment. If there is nothing religious about Herx’s employment or responsibilities, it would seem that her job falls outside the ministerial exception as laid out by the Supreme Court in Hosanna-Tabor. Indeed, this is exactly what the Southern District of Ohio held in a strikingly similar case just last month.

To prevail under the ministerial exception, the Diocese will have to convince the court that all of its teachers, even those of a different faith like Herx, serve as “moral exemplars” for its students. Rick Garnett, associate dean and professor of law at Notre Dame Law School, articulates this argument:

A lot of Catholic schools … every teacher brings the kids to Mass, is involved in sacramental activities…. It’s not just one teacher who teaches religion, religion is pervasively involved. The key question is whether it would interfere with the religious institution’s religious mission, its religious message, for the government to interfere in the hiring decision. [Huffington Post]

This case will be fascinating to follow, much more so for the religious implications than for the pregnancy discrimination implications. Whether Title VII protects a woman’s right to undergo fertility treatments is a fairly well-settled issue. Whether a Catholic Church has to provide that right to its secular employees, however, is open to vigorous debate. As someone who thinks that people should not have to choose between having a family and holding a job, I am rooting for Emily Herx.

More social media woes: employee fired for “liking” gay Facebook page

According to MSNBC, an employee has sued the Library of Congress for firing him after his manager discovered that he had “liked” the “Two Dads” page on Facebook. The employee, Peter TerVeer, claims that after his manager discovered he was gay, his performance reviews turned negative. TerVeer also claims that the manager started making derogatory statements about his sexual orientation and sending religiously motivated emails.

Let me offer three takeaways for businesses from this story:

1. Title VII, like Ohio’s anti-discrimination statute, does not protect sexual orientation. Nevertheless, courts have been known to stretch the definition of gender to include sexual orientation in certain cases. Even if TerVeer doesn’t have a sex discrimination claim, the religious overtones of the manager’s emails could provide a claim based on religion.

2. Much has been made lately about employers snooping on employees’ social media activities. According to nbclosangeles.com, however, the manager only learned about TerVeer’s Facebook activities when the manager’s daughter noticed the “like” and told her dad. This fact underscores what Lafe Solomon (the NLRB’s acting general counsel) told me when we appeared on NPR together last fall—that every social media charge filed with the NLRB started with a co-worker printing out the social media post and giving the hard copy to a manager. In other words, management as much of a hobby out of snooping on its employees as some would have you believe.

3. Despite this story’s foreboding tone, employers should not think that all employees’ off-work activities are off-limits. Nevertheless, this story underscores that employers need to tread very carefully when examining what their employees do on their own time.

Supreme Court finds religion, dismisses discrimination lawsuit

Any decision issued by the Supreme Court in an employment case is newsworthy. Thus, even though Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC [pdf] concerns the viability and applicability of the narrow ministerial exception under Title VII, it is still worthy of discussion.

Hosanna-Tabor employed Cheryl Perich as an elementary teacher. She started her employment as a “lay” teacher, and later received her “diploma of vocation” as a commissioned minister “called” by God. As a teacher, she spent approximately 45 minutes per day teaching religious studies, and the rest teaching secular subjects. Hosanna-Tabor terminated her employment after she began suffering from narcolepsy and threatening to sue for discrimination. The EEOC sued on her behalf under the ADA.

Last year, the 6th Circuit permitted Perich to continue with her lawsuit, finding dispositive the fact her primary job functions were secular, not religious. The Supreme Court unanimously disagreed, recognized that a constitutional ministerial exception exists under Title VII, and that because Perich was a religious employee she could not sue for discriminatory termination.

Other bloggers, who got to this case before me, have admirably recapped the Court’s opinion:

• Supreme Court recognizes “ministerial exception” to employment law protections – from Adam Bonin at Daily Kos
• Just In: SCOTUS Rules 1st Amendment Bars Minister's Discrimination Claim – from Phil Miles’s Lawffice Space
• Ministerial exception bars minister's termination suit against church – from LawMemo Employment Law Blog
• Opinion recap: A solid “ministerial exception” – from SCOTUSblog
• BREAKING: U.S. Supreme Court Supports Fairly Broad “Ministerial Exception” to Anti-Discrimination Laws – from Dan Schwartz’s Connecticut Employment Law Blog
• SCOTUS Upholds and Applies Ministerial Exception – from Workplace Prof Blog
• Ministerial Exception to Employment Discrimination Laws Upheld by Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. – from George’s Employment Blawg
• First Supreme Court Employment Decision of 2012 – from Manpower Employment Blawg

Instead of retreading their ground, I thought I’d focus on what this case means going forward. Chief Justice Roberts, writing for the majority, made it clear that this case only addressed an employment discrimination claim, and not other possible claims a “minister” might bring against a religious institution:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

***

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Wage and hour claims? A church employee fired after being wrongly accused of molesting a child? Given the Court’s reliance on the right of a church, conferred by the Constitution, to “control … the selection of those who will personify its beliefs,” it will be hard to imagine a different result in future cases.

Is spike in religious discrimination claims a reflection of our polarized society?

We are not a tolerant society. We like to think that we are, but in reality, not so much. Instead, we are a polarized society. More and more, we live on the fringes with little tolerance for those whose viewpoints differ from our own. For example, consider that Lowe’s pulled their ads from TLC’s new reality show, All American Muslim.

We should not be surprised then, that religious discrimination claims in the workplace are trending upward. From Marcia Pledger, writing in The Columbus Dispatch (hat tip: i-Sight Investigation Software Blog):

Equal Employment Opportunity Commission statistics show that religious discrimination complaints in workplace settings have more than doubled from a little over a decade ago, resulting in roughly $10 million in settlements. Last year, nearly 3,800 were filed.

“Religion has increasingly moved into the private sphere, so when it does pop up in the workplace, we’re less equipped to deal with it in a rational and evenhanded manner,” said John Gordon, chairman of the religion department at Baldwin-Wallace College in Ohio.

Our Founding Fathers had enough foresight to separate church and state. 220 years later, we should have enough experience to separate church from work.