When religious liberty clashes with job requirements

By now, you’ve likely heard about the Muslim flight attendant who filed a charge of discrimination with the EEOC, claiming that her employer refused to accommodate her religion by requiring her serve alcohol on flights. There is much to say about this issue, but I do not think I can say it any better than Eugene Volokh did in the Washington Post. I highly recommend his thorough and thoughtful essay.

The practical question, however, is what to do when an employee requests such an accommodation. Consider:

• A Catholic pharmacist who refuses to sell birth control.
• A Muslim truck driver who refuses to deliver any pork.
• A Christian Scientist nurse who refuses a flu vaccine.
• An Orthodox Jew who refuses to sell any non-Kosher items.
• An IRS employee with religious objections to working on certain tax-exemption applications.

How you feel about each of these particular cases will depend, in large part, on your view of Religion, or certain religions. Yet, Title VII does not make any such distinctions. Instead, Title VII requires employers to exempt religious employees from generally applicable work rules as a reasonable accommodation, so long as the accommodation won’t impose on the employer an “undue hardship” (something more than a modest cost or burden). If the job can get done without much of a burden, then Title VII requires the employer to provide the accommodation.

Volokh makes six observation about this reasonable-accommodation rule, which are worth repeating:

1. The rule requires judgments of degree. Some accommodations are relatively cheap (again, always realizing that any accommodation involves some burden on employers), while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that’s a bad idea, but that’s what Congress set up with the “reasonable accommodation” requirement. So if you want to argue that one religious objector shouldn’t get the relatively easy accommodation she wants, you can’t do that by analogy to another claim where the accommodation would be very expensive.

2. The rule turns on the specific facts present in a particular workplace. An accommodation can be very expensive when the objecting employee is the only one at the job site who can do a task, but relatively cheap when there are lots of other employees. It can be very expensive when all the other employees also raise the same objection, but relatively cheap when the other employees are just fine with doing the task. Again, maybe that’s a bad rule, but it’s the rule Congress created. And if you want to argue that one religious objector shouldn’t get an accommodation that’s easy at the objector’s job site, you can’t do that by pointing out that the accommodation would be expensive at other job sites.

3. The rule accepts the risk of insincere objections. Of course, when sincere religious objectors can get an exemption, others can ask for the same exemption even just for convenience rather than from religious belief. That’s not much of a problem for many exemption requests, since most people have no personal, self-interested reasons not to transport alcohol on their trucks, or raising an American flag on a flagpole. But for some accommodations, there is a risk of insincere claims, for instance when someone just wants Saturdays off so he can do fun weekend things. The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem. Again, the law might be wrong on this, but it’s the law.

4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.

5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.

6. The rule focused on what specific accommodations are practical. If someone demands as an accommodation that a company completely stop shipping alcohol, that would be an undue hardship for an employer. But if it’s possible to accommodate the person by just not giving him the relatively rare alcohol-shipping orders, then that might well not be an undue hardship.

In other words, Title VII’s religious accommodation provision is the law of the land, and it does not permit value judgments based on the religion of the person making the request, no matter how different a religion may seem from ours. If the request is based on a sincerely held religious belief, is reasonable, and does not impose an undue hardship, an employer must provide it. Value judgments will result in litigation, in which the employer will likely be on the wrong side of the law. Treat each religion equally, consider each accommodation request on its merits, and err on the side of inclusion.

#SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case

Yesterday, the United States Supreme Court ruled that an employer violates Title VII’s religious accommodation requirements if the need for an accommodation was a “motivating factor” in its decision, regardless of whether the employer had actual knowledge of the religious practice or its need to be accommodated.

The case, EEOC v. Abercrombie & Fitch Stores [pdf], is an unambiguous win for religious freedoms, while, at the same time, places an added burden on employers to make educated guesses about applicants’ and employees’ potential needs for workplace religious accommodations.

Abercrombie involved a conflict between a hijab-wearing Muslim job applicant and the employer’s “look policy.” The unusually terse seven-page opinion (of which only a little more than three was dedicated to actual legal analysis) focused on the difference between motive and knowledge in explaining its holding:

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.…

For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. 

So, if knowledge is irrelevant, what is an employer to when faced with one’s potential need for a religious accommodation? More the point, isn’t an employer faced with having to make educated guesses (based on stereotypes such as how one looks or what one wears) of the need for an accommodation? Title VII is supposed to eliminate stereotypes from the workplace, not premise the need for an accommodation on their use. And that’s my biggest critique of this opinion—it forces an employer into the unenviable position of applying stereotypes to make educated guesses.

Nevertheless, employers are stuck with the Abercrombie “motivating factor” rule as the rule for religious accommodations moving forward. Thus, let me offer a simple suggestion on how to address this issue in your workplace—talk it out. Consider using the following three-pronged approached to ACE religious-accommodation issues in your workplace.

• Ask: Even if an employee comes to a job interview wearing a hijab, it’s still not advisable to flat-out ask about his or her religion. Nevertheless, if you believe an applicant’s or employee’s religion might interfere with an essential function of the job, explain the essential functions and ask if the employee needs an accommodation. 

• Communicate: If the individual needs an accommodation, engage in the interactive process. Have a conversation with the applicant or employee. Explain your neutral policy for which an exception will have to be made. Talk through possible accommodations, and decide which accommodation, if any, is appropriate for your business and for the individual.

• Educate: Do you have written policy on religious accommodation? Of course, merely having a policy is never enough. You must communicate it to your employees, explain its meaning and operation, and enforce it when necessary.

This decision is a potential game-changer for employers. Make sure you understand the implications of Abercrombie, so that you are as accommodating as the law requires.

Image courtesy of Jeffrey Weston’s Ape, Not Monkey
http://www.apenotmonkey.com/2012/04/09/religious-accommodation/

“Daddy, why do Jewish people not like Catholics?”

On Wednesday nights, my wife and I drop our daughter off at band practice, and then take our son to dinner before his keyboard lesson starts. While sitting at dinner last night, my son hit us with this bomb: “Daddy, why do Jewish people not like Catholics? … Why did the Jews kill Jesus?”

If you’ve been a long-time reader, you know that my family is interfaith. Even though my kids are being raised Catholic, they understand that their Catholicism is only half of their religious background. I could go into a long dissertation as to why they are being raised Catholic, but the reality is that I am much more a secular Jew than a religious Jew, and since kids need to be raised something, Catholicism makes more sense, even to me.

Be that as it may, I certainly don’t want my kids thinking that their Jewish side doesn’t like their Catholic side. This morning on the way to the school bus I probed Donovan on where he got the idea that Jews don’t like Catholics. As it turns out (and as I suspected), it was his takeaway from hearing the crucifixion story at PSR on Monday night. I have no doubt that the message wasn’t one of hate, but rather one of miscommunication. Nevertheless, in Donovan’s developing six-year-old brain, when he was heard, “The Jews didn’t like/support/belive-in Jesus,” he understood it as, “Jews don’t like Catholics.” It an honest interpretation from an intelligent six-year-old boy, since he’s been taught his whole life that Catholicism and Jesus are intertwined.

I will explain to Donovan tonight that Jews and Catholics love each other. After all, he’s Catholic, as is his sister, mom, grandma, grandpa, aunts, uncles, and cousins—and I love all of them. I will try to explain, as best as I can, the historical context of what happened 2,000 years ago, and, hopefully, he’ll understand that what some people did those millennia long ago does not translate to today. Then, I will explain to the PSR teacher that she needs to be sensitive to the fact that she is teaching at least one interfaith child, and must tailor her message so as not to alienate or upset. We should be teaching inclusion, not estrangement.

The same lesson translates to your workplace. We live in a multi-cultural, multi-religious society, yet we are becoming more and more fragmented. Our great melting pot is not longer an olio, but an mishmash of separate ingredients holding for dear life to the edge of the pot. We are fragmented by religion, national origin, and political belief. Your challenge as an employer is to ensure that your workplace is integrated. You need to ask yourself what kind of workplace you desire. Do you want a workplace of inclusion or exclusion? Do you want employees to feel as though they are part of a team, or part of a tribe that happens to work among other tribes in the same building? To me, the former not only makes for a more cohesive workplace, but also one that limits the risk of liability for harassment, discrimination, and retaliation.

Reading the #SCOTUS tea leaves: headscarves, religious accommodations, and Abercrombie

Yesterday, the Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc. (transcript here [pdf]), which will hopefully determine the circumstances under which an employer must, as a religious accommodation, grant an exception to its “Look Policy” for a hijab-wearing job applicant. More broadly, employers hold out hope for some more generalized guidance on what they should do when a corporate policy conflicts with an employee’s sincerely held religious belief.

What an interesting argument. The Justices seemed very skeptical of requiring employees to raise the issue of a reasonable accommodation in a job interview, and instead suggested that the burden should fall on an employer to bring up the issue. For example, Justice Kagan asked:

You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation…. But the alternative to that rule is a rule where Abercrombie just gets to say, “We’re going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out.”

The criticism of the employer, however, was not limited to the Court’s left wing. Justice Alito also seems skeptical that an employer can simply ignore an obvious potential need for an accommodation simply by denying employment.

All right.  Let’s say …­­ four people show up for a job interview at Abercrombie…. So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit. Now, do you think … that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement….

I want to know the answer to the question whether the employee has to say, I’m wearing this for a religious reason, or whether you’re willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.

Justice Alito then offered a very practical solution:

Well, couldn’t the employer say, we have a policy no beards, or whatever, do you have any problem with that?

Reading the tea leaves, I predict another employee-side victory from this conservative-majority court. If we are assigning burdens, it seems to me that the Court thinks it makes sense to place the burden on the party with more information (the employer) to explain the job requirements to determine if a potentially obvious religious belief conflicts. Otherwise, you are requiring the employee to guess at whether an accommodation is needed at all.

Stay tuned. This will be a very interesting opinion to read when it is released later this year.

Can you require vaccines for your employees?

You may heard that we have a bit of a measles issue going on around the country.

At his HR Solutions blog, and on his Twitter, Make Haberman asked, “Are measles protected by the ADA?”

The ADA no longer carves-out “short-term” impairments from its definition of “disability.” Thus, there is an argument to be made that the measles could qualify as an ADA-disability, provided that it substantially limits a major life activity of the sufferer. Given that one only suffers from measles symptoms (albeit rather severe symptoms) for a week or so, I have my doubts that a one-week impairment “substantially limits a major life activity” of the sufferer. No matter how loosely the Act’s 2009 amendments liberalized the definition of “disability,” I can’t imagine Congress intended the ADA to apply to short-term viruses.

Whether or not the ADA covers the measles as a disability, if you are going to fire an employee who cannot come to work because of the measles (FMLA notwithstanding), you need to engage in some serious self reflections about the type of employer you are.

Of course, if everyone was vaccinated against the measles, we wouldn’t need to have this discussion. So, can you require that your employees present proof of vaccination as a condition of employment? Here’s what the EEOC has to say on the issue:

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).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

At least as far as the EEO laws are concerned, private employers can require vaccinations, as long as you are willing to accommodate employees’ disabilities and religions.

Employers seek to halt EEOC’s efforts to drum up plaintiffs for its “Onionhead” lawsuit

You may recall the lawsuit filed the EEOC claiming that a New York employer forced its employees to join a religion called “Onionhead.”

Now, Employment Law 360 reports that the company’s counsel is trying to block the EEOC from reaching out to the company’s employees to seek additional plaintiffs for its lawsuit.

The employers have asked the federal judge hearing the case to block the EEOC from any further “solicitations of Defendants’ current and former employees for participation in the lawsuit.” You can download a copy of the employers’ letter to the court here [pdf].

According to the company, the EEOC’s letters, printed on government letterhead, provided the employees a one-sided description of the case, omitted a statement that liability has yet to be decided, and created the impression that the employee must contact the EEOC.

Decide for yourself.

If the employer is true, the EEOC is going to have issues. A federal agency cannot misrepresent litigation to drum up support among employees. It also cannot provide employees a mistaken impression that they must cooperate.

At the same time, however, employers faced with alleged misconduct like that alleged in the Onionhead lawsuit must tread very carefully so that they do not unlawfully retaliate against the employees by interfering with their participation rights. For example, an employer cannot forbid employees from cooperating with the EEOC, or even dissuade them from contacting the agency.

What should employers do?

• They can tell employees that it is their choice whether to contact, or cooperate with, the EEOC.
• They can tell employees to be truthful when talking with the EEOC.

What must employers do? 

• They must guarantee employees that they will not suffer any retaliation, no matter their choice.

Employers faced with an EEOC investigation should know that the agency is using these tactics, so that they can proactively, and lawfully, respond by delivering the right message to their employees.

Mark this beastly religious accommodation case for the employer

Last Monday, I wrote about a jury verdict against an employer that refused to make accommodation for an employee who objected to the use of the company’s time-keeping hand scanner for religious reasons. In response, one reader commented:

Seems to me that the law should require some sort of reasonableness requirement on the plaintiff. There’s no reason we should have to accommodate every ridiculous whack-a-doodle demand…. “The Mark of the Beast”? Seriously??? We should not have to cater to such nutjobs, and it makes a mockery of our legal/political/economic system to have to do so.

Well, captain_quirk, this one’s for you.

Last week, the 6th Circuit, in Yeager v. FirstEnergy Generation Corp., held that an employer does not have to accommodate an employee’s religious beliefs if those religious beliefs conflict with a requirement of federal law.

When the plaintiff, Donald Yeager, turned 18, he disavowed his social security number. As a Fundamentalist Christian, he believed that being identified by any number, including the federally mandated social security number, was having the “Mark of the Beast.” (Amazingly, Yeager is not alone in this thinking.) FirstEnergy refused to hire Yeager because he would not provide his social security number. Yeager sued, and lost.

Every circuit to consider the issue has [held] that Title VII does not require an employer to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute. Some courts have [held] that a statutory obligation is not an “employment requirement,” while others have held … that violating a federal statute would impose an “undue hardship.” These dual rationales arrive at the same, sensible conclusion: “[A]n employer is not liable under Title VII when accommodating an employee’s religious beliefs would require the employer to violate federal … law.”

The Internal Revenue Code requires employers such as FirstEnergy to collect and provide the social security numbers of their employees. In this case … FirstEnergy’s collection of Yeager’s social security number is a “requirement imposed by law” and therefore not an “employment requirement.”

Despite this highly sensible decision, I stand by my conclusion from last week’s discussion—much more often than not, requests for accommodations are not the demarcation on a battleground, but the call for a middle ground … unless the request asks you to violate a federal law, in which case all bets are off.

Should it matter if your employee thinks hand scanners are tools of Satan?

If you’re a long time reader of my blog, you might recall a story I shared a few years ago about a co-worker at one of my high-school jobs, who held some interesting opinions about Lee Iacocca, Satan, and the end of the world. At the time, I made a point about taking the path of least resistance with reasonable accommodations.

Apparently, Consol Energy is not a blog subscriber.

The Pittsburgh Post-Gazette brings us the story of Beverly Butcher Jr., an employee at its Robinson Run, West Virginia, mine, and an Evangelical Christian, who refused to use the company’s hand scanner to clock in an clock out, because he believed it would imprint him with the “mark of the beast.” Instead of working with Butcher, or providing him an alternative way to track his time, the company mandated his use of the hand scanner. He quit, the EEOC sued on his behalf, and, last week, a federal jury ruled in his favor, awarding him $150,000 in compensatory damages on his religious discrimination claim. Later this year the court will rule on back pay, front pay, punitive damages, and attorneys’ fees.

Whether or not an employee is entitled to a religious accommodation is not dependent upon whether or not you happen to agree with the employee’s religious beliefs. Instead, it hinges solely on whether the beliefs are sincerely held, and, if so, whether you can provide the accommodation without it imposing an undue hardship. While this employer could make a credible undue-hardship argument based on the need for accurate time tracking, and uniformity among employees, it it worth it. Denying the requested accommodation—not using the hand scanner and tracking time in and time out with a different tool—is not worth the headache and associated costs of a federal lawsuit (verdict included).

Requests for accommodations (whether for religious or disability purposes) are not the demarcation on a battleground. Instead, they are a call for a middle ground. Employers need to recognize this truth, and starting wars that simply are not worth fighting.

A New Year’s accommodation story

We spent part of our winter vacation on a quick family trip to Washington D.C.  The Old 97’s, my 8-year-old daughter’s favorite band, was playing two nights, and we decided to pack up the car and make the drive to our nation’s capital to catch the less raucous New Year’s Eve Eve show (and to see some of the of the sights).

My younger child, Donovan, who’s 6, has Celiac Disease. Traveling with someone who has a food allergy is tricky enough. When that same person is your typical 6-year-old picky eater, it’s darn near impossible.

Before we left home, I called the concert venue, where we planned to eat dinner during the opening act, to ask about gluten-free options for kids. They assured me that the wait staff and chefs were well versed in gluten-free preparations. For example, they could serve a bun-less cheeseburger (not his favorite, but he’d manage). When they told me that they had a dedicated fryer for french fries, I knew we’d be fine. He loves fries, but most restaurants can’t accommodate him because of the risk of cross contamination from shared fryers.

When we sat down for dinner, however, the server told us that the downstairs concert hall has a different, more limited menu then the upstairs restaurant, and they they don’t serve a kids menu or fries downstairs. Uh oh! I explained my son’s dietary issues, and that I had called ahead. She explained that they were really crowded and could not make any promises, but that she would see what she could do. No more than 5 minutes later she returned with a thumbs up, letting us know they a bun-less kids cheeseburger with gluten-free french fries would be on their way. Crisis averted.

Employers, there is a lesson to be learned from how the Hamilton handled our issue. It would have been easy for it to stick to its, “We’re too busy” story, leaving Donovan with nothing to eat. Yet, given how simple it was for them to take an extra minute and go upstairs for the burger and fries, I would have been offended had they said no.

Don’t  take the easy way out with your employees when they ask for accommodations for a disability, religion, or other protected reason. Even if you are legally right (and, the odds are good that you won’t be), you will leave the employee feeling offended and upset. Those feelings breed discontent, which, in turn, breed lawsuits. 

From the archives: Time off for religious holidays

Since today is both Rosh Hashanah and a work day, I though it appropriate to go deep into the archives, all the way to (yikes) 2008, to reprint a post discussing 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 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.

Will Hobby Lobby give Title VII fits?

Yesterday, the Supreme Court decided Burwell v. Hobby Lobby Stores [pdf], holding that a closely held corporation is a “person” that can hold a religious “belief” for purposes of the Religious Freedom Restoration Act (which prohibits the federal government from taking any action that substantially burdens the exercise of religion unless it is the least restrictive means possible). Thus, the plaintiff was able to rely on its religious beliefs to opt out of the requirement of the Affordable Care Act (aka Obamacare) to provide healthcare coverage for contraceptives. 

The opinion is long, but worth the time to read. I want to focus, however, on Justice Ginsburg’s scathing dissent.

Justice Ginsburg believes that the majority’s opinion is not limited to the ACA’s contraceptive mandate, but instead will enable any company to opt out of any non-tax law on the basis of a religious belief:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. 

What about Title VII and the other ant-discrimination laws? What if a company has a sincerely held religious belief that it is okay to discriminate based on race? Or, how about a company, that, because of its religious beliefs, segregates its men and women? Would Hobby Lobby permit those employers to opt out of Title VII? Hobby Lobby does not answer these questions. Instead, it leaves them to lower courts to interpret in future cases. We will have to watch and see how these issues play out down the road.

I agree, however, with Justice Ginsburg, that we need to worry about how companies will try to use this opinion to opt out of laws they do not like. I am concerned that this opinion could lead to a slippery slope of companies using religion to pick and choose laws based on their socio-political beliefs, which could undermine our civil-rights laws, and is antithetical to the First Amendment religious freedoms upon which out country was founded.

Hold the Onion(head): What is a “religion” under Title VII?

Not an onion. Meet Mr. Lettuce.

Have you heard the one about the company that fired employees who refused to worship an onion? This is not the start of a joke, but a real, live lawsuit filed by the EEOC.

According to the EEOC, United Health Programs of America, and its parent company, Cost Containment Group, required its employees to participate in “group prayers, candle burning, and discussions of spiritual texts,” all as part of a “belief system” that the defendants’ family member created, called “Onionhead.” The EEOC further alleges that employees who refused to participate were fired.

What is “Onionhead?” According to the Harnessing Happiness Foundation, Onionhead is not a “what,” but a “who.”

Onionhead is this incredibly pure, wise and adorable character who teaches us how to name it - claim it - tame it - aim it. Onion spelled backwards is ‘no-i-no’. He wants everyone to know how they feel and then know what to do with those feelings. He helps us direct our emotions in a truthful and compassionate way. Which in turn assists us to communicate more appropriately and peacefully. In turn, we then approach life from a place of our wellness rather than a place of our wounds. 

His motto is: peel it - feel it - heal it

I’m not making this up. This comes right from the website of the Harnessing Happiness Foundation, which is a legitimate 501c3 nonprofit organization. It is “dedicated to emotional knowledge and intelligence, conflict resolution and life handling skills, for all ages,” which teaches the belief that “hope lies in our ability to deal with problems in a respectful, mindful and loving way.” “Onionhead” is part of Harnessing Happiness, which uses a genderless onion “as a medium to express peeling our feelings, as a way of healing our feelings.”

According to the New York Daily News, Denali Jordon, whom the EEOC’s lawsuit identifies as the group’s “spiritual leader,” denies that Onionhead is a religious practice.

Here’s the thing. For purposes of the EEOC’s religious discrimination lawsuit, it doesn’t matter whether or not Onionhead is a bona fide “religion.” According to the regulations interpreting Title VII’s religious discrimination provisions:

In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.

We know that forcing employees to participate in religious practices at work is a no-no. If “Onionhead” is a religion, than the EEOC will likely have an easy go of it in court. Should we take Ms. Jordon at her word that Onionhead is not a religious practice? According to Title VII’s regulations, the answer is no. According to the Harnessing Happiness Foundation’s website, Onionhead appears to include sincerely held moral or ethical beliefs about what is right and wrong. Thus, it appears that, even though Onionhead’s leaders deny its status as a religion, Title VII likely concludes otherwise.

What does all this mean for you? Leave religion out of the workplace. Whatever you call your deity—God, Jesus, Allah, Buddah … or even Onionhead—leave it at home. The workplace and religion do not mix. An employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs.

As for me, I’m requesting no onions on my salad at lunch today (just in case).

(Hat tip: Business Insurance / Judy Greenwald)

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).