Religious Discrimination in Employment

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It was amended in 1972 by the Equal Employment Opportunity Act. This Act created the Equal Employment Opportunity Commission which is commonly referred to as the EEOC. If you are the victim of employment discrimination, you can file a charge with the EEOC if you employer or prospective employer has 15 or more employees. The EEOC will then investigate the charge and can file suit on behalf of the employee if it believes that the charge has merit. Title VII prohibits discrimination in employment based upon religion – either its practices or beliefs.

While litigation on the basis of religious discrimination does not occur as frequently as some of the other categories, or may not have as high a profile, it is just as important a concern for employers. Discrimination against Muslims and Middle Easterners has increased dramatically since 9/11 and involve issues such as females wearing of head scarves at work, Sikhs wearing turbans at work, having a place to perform pre-prayer ablutions at work for Muslims, Muslims needing breaks and a place to say their religiously-mandated prayers several times per day.

Federal and state constitutional guarantees of due process, equal protection, and freedom of religion also provide protection for federal, state and local government employees. If the employer is a governmental entity, the employer must avoid workplace policies which have the effect of tending to establish or of interfering with the practice of the employee’s religion. Title VII is the only legislation specifically prohibiting religious discrimination in employment and there is consideration given to constitutional issues where necessary.

To a great extent, religious organizations are exempt from the prohibitions in Title VII.
As a general rule, they can discriminate so that, for instance, a Catholic church may legitimately refuse to hire a Baptist minister as its priest. That is, religion is recognized as a possible basis for a BFOQ reasonably necessary to the normal operation of that particular business or enterprise under section 703 (e)(1) of Title VII. If the church has sectarian activities such as running a day care center, bookstore or athletic club, which in no way involves religion, it may not enjoy the same broad type of freedom to discriminate since these activities do not necessarily have religion or propagation of the religion as an integral part of their activity.

What is “Religion”?
Title VII originally provided no guidance as to what it meant by the word “religion”. In the 1972 amendments to Title VII, Congress addressed the issue. In section 701 providing definitions for terms within Title VII, section (j) states that “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
The question frequently arises “What if I never heard of the employee’s religion? Must I still accommodate it?” The answer is based upon two considerations: whether the belief is closely held and whether it takes the place of religion in the employee’s life. The latter requirement means that even atheism has been considered a “religion” for Title VII purposes. The religious belief need not be a belief in a religious deity as we generally know it. However, courts have determined that groups like the Ku Klux Klan are not religious organizations even though their members have closely held beliefs.

The employer need not previously know of, or have heard of, or approve of the employee’s religion in order to be required to accommodate it for Title VII purposes. The employer cannot question the sincerity of the belief merely because it may appear to the employer to be unorthodox.

The duty to accommodate the religious conflict arises whenever the conflict arises. It does not matter that the employee did not have the conflict when hired.

Religious Conflicts
Workplace conflict between an employee’s religious beliefs and workplace policies is probably the most frequent type of religious discrimination case. For instance, the employer may have a no-beard policy and the employee’s religion forbids shaving his beard.

The conflict can also come about because of the employer’s religious beliefs; like an atheist employee being required to attend workplace religious services at the manufacturing plant at which he worked. As more and more different types of employees come into the workplace, this conflict can become more frequent and employers must be attuned to them.

Once an employer is aware of a religious conflict, the employer must make a good faith attempt to accommodate the conflict and the employee must assist in the attempted accommodation. If no accommodation can be worked out without undue hardship on the part of the employer, the employer has fulfilled his or her Title VII duty and is not liable if the religious conflict cannot be accommodated.

The Employer’s Duty to Reasonably Accommodate
Unlike the other categories under Title VII, the prohibition against religious discrimination is not “absolute.” An employer can discriminate against an employee for religious reasons if to not do so causes the employer undue hardship. When the employer discovers a religious conflict between the employer’s policy and the employee’s religious belief, the employer’s first responsibility is to attempt accommodation. If it happens that accommodation is not possible, the employer can implement the policy even though it has the effect of discriminating against the employee on the basis of religion.

Due to the nature of religious conflicts and the fact that they can arise in all types of contexts and in many different ways, there is not one single action an employer must take in order to show that she or she has reasonably accommodated conflicting religious considerations. It depends upon the circumstances and will vary from situation to situation. For example, say an employer owns a sandwich shop. The employer’s policy is that employment entitles employees to eat all the restaurant food they wish during their lunch break. Employee’s religion does not allow eating meat. Aside from the meat used for sandwiches, the employer has little else other than sandwich trimmings like lettuce and tomatoes. The employee alleges it is religious discrimination to provide as part of employment benefits lunch the employee cannot eat for religious reasons while other employees receive as a benefit full free lunches they can eat because there is no religious prohibition. The duty to accommodate may be as simple as the employer arranging to have peanut butter and jelly, eggs, or a variety of vegetables available for the employee.

Say the employer requires employees to work six days per week. One employee cannot work on Saturdays due to a religious conflict. The accommodation may be that the employee switches days with an employee who does not wish to work on Sundays – a day that the employee with the religious conflict is available to work.

Another example: Employer grocery store has a policy requiring all counter clerks to be clean-shaven in order to present the employer’s view of a “clean cut” image to the public. Employee cannot shave for religious reasons. The accommodation may be that the employer switches the employee to a job the employee can perform which does not require public contact, such as stocking shelves or handling paperwork.

Employee’s Duty to Cooperate in Accommodation
The U.S. Supreme Court has held that in attempting to accommodate the employee all that is required is that the employers make any reasonable accommodation and this need not necessarily be the most reasonable accommodation available. The employee must also be reasonable in considering accommodation alternatives.

The employer’s only alternative may involve demoting the employee. This is not forbidden if all other alternatives present the employer with an undue hardship.

EEOC and courts will look to the following factors in determining whether the employer has successfully borne the burden of reasonably accommodating the employee’s religious conflict. Each factor will be considered and weighed as appropriate for the circumstances. If on balance the employer has considered the factors appropriate for the employer’s particular circumstances and accommodation is not possible, there is usually no liability for religious discrimination. The factors include:
• whether the employer made an attempt at accommodation;
• the size of the employer’s workforce;
• the type of job in which the conflict is present;
• the employer’s checking with other employees to see if anyone was willing to assist in the accommodation;
• the cost of accommodation; and
• the administrative aspects of accommodation

What Constitutes Undue Hardship?
What constitutes undue hardship also varies from situation to situation and will be addressed by the EEOC and the courts on an individual basis. There are no set rules as to what constitutes undue hardship since each employer operates under different circumstances. The accommodation the employer rejects as undue hardship may not be a mere inconvenience to the employer.

EEOC has provided employers with guidelines as to what factors it will consider in answering the question of whether the employer’s accommodation would cause undue hardship. Such factors include:
• the nature of the employer’s workplace;
• the type of job needing accommodation;
• the cost of the accommodation;
• the willingness of other employees to assist in the accommodation;
• the possibility of transfer of the employee and its effects;
• what is done by similarly situated employers;
• the number of employees available for accommodation; and
• the burden of accommodation upon the union

Generally speaking, EEOC’s interpretation of what constitutes undue hardship and reasonable accommodation has been more stringent than the interpretation of undue hardship by the courts. Since EEOC’s guidelines are not binding, and court decisions are, employers must look to the interpretation by courts in their own jurisdictions.

Among other things, courts have found that it would be an undue hardship if an employer had to:
• violate the seniority provision of a valid collective bargaining agreement;
• pay out more than a de minimis cost (in terms of money or efficiency) to replace a worker who has religious conflicts; and
• force other employees who do not wish to do so to trade places with the employee who has a religious conflict.

Religion as a BFOQ
Title VII permits religion to be a bona fide occupational qualification if it is reasonably necessary to the employer’s particular normal business operations. Title VII specifically permits educational institutions to employ those of a particular religion if they are owned in whole or substantial part by a particular religion.

Religious Harassment
This area has gotten more active lately, including the workplace display of crosses or other religious artifacts in their work space, religious study groups during the workday, handing out religious tracts to co-workers, and preaching, “witnessing,” or “testifying” about their religious beliefs to co-workers. Activity in the religious harassment area is due, in part, to matters relating to various religious issues in the past several years.

In 1990 the U.S. Supreme Court rejected Native Americans’ argument that they should be permitted the ritual use of peyote in their tribal religious ceremonies as part of their First Amendment right to freedom of religion.

In 1993 Congress passed the Religious Freedom Restoration Act (RFRA) to ensure the free exercise of religious practices. The law had tremendous support from many quarters. RFRA was an attempt to restore the previous status quo under which religious practices must be accommodated unless a compelling governmental interest can be demonstrated, and advanced in the least restrictive manner. In 1997, the U.S. Supreme Court overturned RFRA as giving a governmental preference for religion, in violation of the First Amendment.

Though not directed toward religious practices in the workplace, per sé, national attention and debate about these issues, along with a growing religious presence in political forums extended the religious practices into the workplace by extrapolation. When the religious practices were challenged, religious harassment claims arose.

It is often the non-religious employees who allege they are being harassed by religious employees. For example, information systems manager Rosamaria Machado-Wilson filed a case in 1998 alleging that she was fired after less than six months on the job, after reporting religious harassment to her employer, BSG Laboratories. Machado-Wilson said that a simple walk to the coffee pot sometimes meant “weaving past prostrate, praying co-workers and stopping for impromptu ceremonies spoken in tongues.” Machado-Wilson alleged she was forced to attend company prayer meetings and be baptized; employees were subjected to inquiries into and comments about their religious beliefs, and those found to be nonbelievers were fired.

Since Title VII prohibits religious discrimination, it also prohibits religious harassment.
The EEOC issued guidelines on liability for harassment in 1999, explicitly covering religious harassment.

On August 14, 1997, President Clinton issued guidelines for religious freedom of federal employees. The purpose is to accommodate religious observance in the workplace as an important national priority by striking a balance between religious observance and the requirements of the workplace. Under the guidelines, employees:
• should be permitted to engage in private religious expression in personal work areas not regularly open to the public to the same extent that they may engage in nonreligious private expression;
• should be permitted to engage in religious expression with fellow employees, to the same extent they may engage in comparable nonreligious private expression, subject to reasonable restrictions; and
• be permitted to engage in religious expression directed at fellow employees, and may even attempt to persuade fellow employees of the correctness of their religious views. But employees must refrain from such expression when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome.

To best prevent religious harassment liability, employers should be sure to protect employees from those somewhat zealous religious employees who attempt to proselytize others who do not wish to be approached about religious matters, as well as protect employees with permissible religious practices who are given a hard time by those who do not follow such practices. It is also important that employees are given comparable opportunities to use workplace time and resources for religious practices if given for secular activities.

There has been a marked increase in religious harassment of Muslims, Sikhs and other Middle Eastern religions since the events of September 11, 2001, leading the EEOC to reiterate its rules in this area. There is also the recent issue on the horizon of religious backlash in response to workplace diversity policies that may be at odds with an employee’s religious beliefs.

Union Activity and Religious Discrimination
At times the religious conflicts that arise between the employee and the employer are caused by collective bargaining agreement provisions rather than policies unilaterally imposed by the employer. It has been determined that even though Title VII defines the term “religion” with reference to an employer having to accommodate, unions are also under a duty to reasonably accommodate religious conflicts. The most frequent conflicts are requirements that employees be union members or pay union dues. Union membership, payment of union dues, or engaging in concerted activity such as picketing and striking conflicts with some religious beliefs.

Employees have also objected to the payment of union dues as violating their First Amendment right to freedom of religion and Title VII’s prohibition against religious discrimination. Unions have claimed that applying the religious proscription of Title VII violates the Establishment Clause of the First Amendment to the U.S. Constitution insuring government neutrality in religious matters.

Courts have ruled that union security agreements requiring that employees pay union dues within a certain time after the effective date of their employment or be discharged does not violate an employee’s First Amendment rights. However, it violates Title VII for an employer to discharge an employee for refusal to join the union because of his religious beliefs. Employees with religious objections must be reasonably accommodated, including the possibility of the alternative of keeping their job without paying union dues.

The union could prove undue hardship if many of the employees chose to have their dues instead paid to a non-union, non-sectarian charitable organization chosen by the union and the employer, since the impact on the union would not be insubstantial.

Whether the objection under Title VII is directed toward the employer or the union, a government employer still has a duty to reasonably accommodate the employee’s religious conflict unless to do so would cause undue hardship, excessive entanglement with religion or violate the Establishment Clause.

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