“WE’RE AT WAR, AND I WON’T WORK WITH MUSLIMS”
“HOMOSEXUALS IN THE OFFICE VIOLATE GOD’S LAW”
“ I NEED A PRIVATE ROOM FOR MY AFTERNOON WORSHIP”
“ MY RELIGION SAYS I’M SUPPOSED TO DRESS THIS WAY”

HOW CAN EMPLOYERS AVOID RELIGIOUS HARASSMENT AND DISCRIMINATION CLAIMS?

Accommodating Who Someone Is Versus What Someone Does

That can set up a horrific conflict between an employee’s right to practice a chosen religion, and an employer’s justifiable need to run a workplace in accordance with certain rules and standards. What happens when what an employee does, albeit in the name of religion, violates valid work rules and office policies?

Even worse, many times religious beliefs impel an employee to do things that not only violate the employer’s rules, but also affect or offend other employees. When does an employer have the right to say “no” to religion?

Finally, let’s add one more complication to the mix. We are currently embroiled in a war in which many Americans perceive the enemy to be of a certain religion, Islam, which is practiced by millions of American workers. Verifiable statistics and reliable anecdotal evidence indicate that Muslim workers are being harassed and discriminated against in record numbers by their fellow employees. What are an employer’s obligations in that tinderbox?

This is one of the most difficult, uncertain, and (literally, in the minds of some) “damned if you do and damned if you don’t” issues employers must now confront. There are few concrete or perfect answers, but we can offer some guidelines and “red flags” that can help to minimize the risks.

Does Religion Require a Belief in God? Can There Be a One-Person Religion?

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on “religion,” in all aspects of employment. Sounds fairly self-evident.

Suppose an employee insists on posting an anti-abortion sign in his cubicle. You ask the employee to conform with your “no politicking in the office” policy. The employee says his actions are not political; rather, he says, taking down the sign would violate his beliefs. You ask the employee to explain. He tells you that although he is an atheist, he believes abortion to be the most crucial ethical issue of the times, and he has dedicated his life to convincing all with whom he comes into contact to work towards its abolition.

Do you have to worry about religious discrimination in that context?

Start with the legal definition of “religion” itself, and you begin to see the complications. Title VII defines “religion” broadly. To be sure, all religions, not just mainstream religions, are protected – there are over 1500 distinct religious groups in the country, and counting. But the EEOC regulations that have been promulgated in this field take the definition further, to include “moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views.” Note the lack of reference to any divinity, or to any group of fellow believers.

According to these regulations, therefore, an individual who takes certain actions or insists upon certain workplace changes out of a personal view of right and wrong, without reference to a divine being and without affiliation with any group, may be able to successfully argue for protection under “religious discrimination” principles. To obtain such protection the individual’s beliefs must be much more than a personal preference or view point that are not based on a real, wide-ranging belief system. But other than that, there is a substantial gray area, and proof of a personal credo that truly guides an individual’s actions may in fact be deemed a “religion” worthy of Title VII protection.

How Much Is An Employer Required To Tolerate In The Name Of Religion?

The core question then becomes this: what is an employer obliged to put up with in the name of religion?

The general rule is that employers are required to “reasonably accommodate” their employees’ religious practices so long as doing so does not create an “undue hardship” on the employer. It’s a rule that’s easy to recite, but what does it mean in practice, in the real world?

In 1977, in what seemed at the time to be a landmark ruling in favor of employers, the Supreme Court ruled that an accommodation that results in more than a de minimis cost to an employer crosses the “undue hardship” line. The EEOC defines de minimis in reference to the size and operating cost of the employer – in other words, the concept is relative, but at least in a general sense, if the religious accommodation will cause the employer to incur more than just a minimal cost, the employer may have a defense.

Since that decision, however, many courts have grabbed hold of the de minimis standard, and twisted its meaning beyond recognition. What a court may deem to be de minimis, an employer will often deem to be disastrous. This has resulted in a crazy quilt of decisions that make it very difficult to derive predictable rules and standards.

In addition, it may be that the de minimis standard will soon change in any event. In 1997, Senator Kerry, among others, first introduced the Workplace Religious Freedom Act, which would require employers to accommodate their employees’ religious practices unless doing so would cause “significant difficulty or expense.” In essence, the WRFA seeks to make the religious accommodation standard similar to the ADA’s “undue hardship” standard – employers would be required to accommodate religious practices unless employers could prove that the consequences would be truly burdensome. The legislation has not yet passed, but the bill was re-introduced in 2003, and it is backed by a diverse array of religious groups.

In the meantime, set forth below is the best guidance we can provide on the issues employers most often face.

Does an Employer Have to Accommodate Religious Dress and Symbols?

An employer’s legitimate safety concerns – for the employee raising the issue, fellow employees, customers or the public – will generally trump an employee’s right to wear religious garb or symbols in the workplace. For instance, courts have ruled in favor of an employer who fired a Sikh employee who refused to wear a hard hat, and in favor of employers who have fired employees with dreadlocks, long hair or beards in violation of food handling standards.

Suppose your receptionist converts to Islam, and insists on dressing in Muslim attire, including a head scarf, at your front desk? You honestly feel that this would hurt your business “image” and are more than willing to transfer the receptionist to another job with equal or better pay. Can you force the issue?

Under current law, the answer is no – courts do not view such circumstances as causing an “undue hardship” to the employer.

Suppose the issue goes beyond just “image,” and you have verifiable reasons to believe that your customers will be so put off by this attire they will take their business elsewhere?

Again, in most courtrooms, this will not constitute an excuse – generally, courts have ruled that the preferences of third parties, such as customers, cannot serve as a justification for violating an employee’s religious rights, any more than an employer could fire an employee because a customer did not like the employee’s race or gender.

Does an Employer Have to Accommodate Religion-Based Objections to Work Duties?

Can an employee refuse to do his or her job based on religious objections? For instance, suppose a hospital nurse refuses to participate in abortions based on his or her religious faith, or a worker refuses mandatory Sunday work because of a commitment not to work on his or her Sabbath?

The view of most courts in this area is that an employer is required to make reasonable, but not unlimited, efforts to accommodate its employee – in other words, the employee can only push the employer so far. Exactly how much an employer will be required to do will vary based on the specific facts of the case and, no doubt, on the predilections of the judge hearing the case.

It is plain that if an employer can feasibly switch the tasks or schedule of objecting employee with another employee and still get the job done, the employer will be required to expend its best efforts to do so. Remember, however, that the objecting employee does not have to like the new assignment -- so long as the switch is reasonable and does not punish the employee for raising the religious issue in the first instance, the employer has the right to insist that the employee take it or leave it.

Most courts agree that some unpaid time off to permit an employee’s religious observance will generally be required as a reasonable accommodation, so long as the employer can cope without the employee, even if (within reason) the amount of time off exceeds an employee’s normal allotment.

There are, of course, many cases in which employers have been found liable for not making sufficient efforts to accommodate an employee, but there are also many cases that shed some light on when an employee has asked for too much. For instance, a male Jehovah’s Witness truck driver requested that he not be assigned runs with a female partner, since his religion prohibited him from traveling overnight with a woman not his wife. The employer refused. The court found that accommodating this request would cost the employer more than a de minimis expense, and ruled in favor of the employer.

In another case, an employee refused to work on weekends for religious reasons. The court ruled that the employee had unique skills which the employer justifiably needed and could not replace without spending more than a de minimis amount, and ruled in favor of the employer on that basis.

But in another case, a salon operator, for which Saturday was the busiest day, was found liable for failing to allow an employee to take Saturday off for religious reasons. Different judge. The rules in this area are anything but crystal clear and predictable in their application.

Does an Employer Have to Accommodate Employee Proselytizing?

These cases present situations in which the employee is doing his or her job, and is not asking the employer for any special treatment. Instead, the employee, as mandated by the employee’s religious convictions, is engaging in speech which may offend other employees. Does an employer have a right, or for that matter an obligation, to regulate the speech of an employee so that other employees are not offended?

Generally, the answer depends on the degree of offense caused to the other employees, but the test remains a subjective one. For instance, in one case, an employee took a religious vow to at all times wear an anti-abortion button depicting an unborn fetus, which co-workers found offensive and disruptive. There was no question that the employee was motivated by sincere religious beliefs, and the court ruled that the employer’s “reasonable accommodation” obligation was triggered as a result. However, the court also found that the employer’s proposed solution – covering the button at work – was reasonable since, otherwise, the employer would be forced to allow the employee to “impose her beliefs on the rest of the workforce.”

A very recent case dealt with a Hewlett Packard employee who objected to HP’s diversity campaign, particularly as it applied to gays -- the employee fervently believed, on religious grounds, that homosexuality is a sin. Consequently, in the hope of convincing gays in the HP workplace to repent and be saved, the employee posted anti-gay, purposefully-hurtful religious texts in his cubicle that were large enough to be read by those in an adjoining corridor. The texts specifically violated HP’s efforts to promote respect and tolerance in its workplace. In response, HP engaged in a textbook-perfect effort to strike a middle-ground accommodation with the employee – it acknowledged the sincerity of his beliefs, it allowed him to park a car in the company lot with an anti-gay bumper sticker, and it did not protest his anti-gay and anti-HP letters to the editor of the local newspaper. HP’s well-trained managers confined themselves to explaining the HP diversity program, and requiring that the employee treat fellow employees with respect by removing the posters and abiding by the company’s anti-harassment policy, which was uniformly applied to all employees. HP was vindicated in court.

What about email templates with religious messages in the margin? What about voice mail messages with religious overtones? Must an employer allow employees those freedoms? These decisions remain to be made, but they will no doubt turn on such factors as the particulars of what the messages say, the make up of the work force, the employer’s established policies, and the employer’s efforts to strike a middle ground.

What About Job Applicants?

Job applicants are covered by religious discrimination laws – employers are not permitted to allow a job applicant’s need for religious accommodation to influence hiring decisions.

This raises thorny issues for the employment interview. For instance, an interviewer may believe that an applicant is Jewish. Knowing that Saturday work is required, and knowing that Saturday is the Jewish Sabbath, the interviewer may ask whether the applicant will be available to work on Saturdays. Or an interviewer may ask a Sikh wearing a turban if he intends to dress in the same fashion during the work day, anticipating that management may have an objection.

Big problem… if applicants who are questioned in this fashion are not hired, they will contend that the hiring decision was based on religious discrimination – why would the interviewer have asked these questions if they weren’t important to the hiring process?

The EEOC (whose views do not bind courts, but courts find them influential) maintains a position on this subject that many employers will find extreme, cumbersome, and in many cases very difficult to apply in view of the typical give and take that unfolds during an employment interview.

For instance, in respect to scheduling issues, the EEOC posits that questions regarding an employee’s availability for work may have an exclusionary effect on persons with certain religious practices, and should therefore not be posed. Instead, the employer should state the required work schedule and “after making it clear to the applicant that he or she is not required to indicate the need for any absences for religious practices during the scheduled work hours, ask the applicant whether he or she is otherwise available to work those hours.” Only after the employer offers the job to the applicant, but before the applicant is hired, may the employer inquire into the need for a religious accommodation and determine whether an accommodation is possible. Presumably, the same is true in matters pertaining to dress and any other workplace requirement that may impinge on religious issues – don’t ask until the job has been offered (i.e., do not make the issue a precondition for hiring), and only then discuss the need for and availability of religious accommodations.

Is an Employer Obligated to Stop Religious Harassment by Fellow Employees?

An employee can bring a “hostile work environment” claim against an employer, based on religious harassment perpetrated by fellow employees. It is an employer’s obligation to prevent this kind of conduct, most notably through employee training, and to react as the law dictates when placed on notice of a potential problem.

To make out such a claim, a harassed employee must show that the harassment was based on his or her religion, that the harassment was pervasive and severe, and that the harassment created an intolerable work environment that detrimentally affected the employee. As such, the elements of a religion-based hostile work environment action are analogous to a sexual harassment-based hostile work environment action.

Hostile work environment claims based on religion are a burgeoning problem, and they pose a very dangerous, very difficult challenge for employers. It’s not difficult to understand the fears and emotions that have caused this upsurge in claims. We have been there before.

In February 1942, about two months after Pearl Harbor, President Roosevelt signed an executive order effectively authorizing the segregation of American citizens of Japanese descent. Shortly thereafter, military officials forced more than 100,000 Japanese Americans into barbed wire “relocation camps” consisting of tarpaper-covered barracks without plumbing or cooking facilities. The commanding officer’s final report to the US Army Chief of Staff explained some of the reasons for the internment, as follows:

Many years, and another generation thereafter, we look back in horror at the internment of citizens based solely on their “strong ties of race, culture, custom and religion” to a wartime enemy. A plaque at one of the relocation centers now reads in part:

In 2004, many Americans label the wartime enemy as “Muslim” – a group they perceive as another “tightly knit and racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.” Arguably, the same kind (if not the same degree) of emotions and fears that that led to the internment of Japanese Americans are being directed against Muslims in our country. The Washington Post, for example, reported this month that between 2002 and 2003, Muslims in the United States experienced a 70 percent jump in harassment, violence and discriminatory treatment. A major Islamic advocacy group blames the upsurge in “Muslim bashing” on talk radio, and similar media wartime influences. The EEOC reports that claims against employers alleging job discrimination and harassment based on an employee’s Muslim faith have doubled, and there is every reason to believe we are at the bottom of a rising curve.

The problem is, of course, not limited to the post 9-11 issues currently in the headlines. America has experienced religious strife throughout its history, and the various religious conflicts that persist throughout the world are also manifesting themselves among the immigrant populations now in this county.

The issue for employers is this: the cauldrons in which these prejudices and fears boil and overflow is the workplace, where people of different backgrounds, who might not otherwise choose to interact, are forced to do so.

So What So You Do?

There is no magic pill, but here are the best ways to minimize exposure to religious discrimination and harassment claims:

Good luck, and let us know if we can help.

WHAT DO YOU THINK?

This month’s What Do You Think? seeks your help in defining the line between legal theory, and the real world.

In recent months, the media has publicized charges that McDonald’s, as well as other fast food chains, has contributed to obesity in our country by selling high fat foods. McDonald’s and others have responded by backing off of “super size it” campaigns and offering healthier menu items.

McDonald’s currently faces a suit under the ADA by a job applicant who claims that he was turned down for employment because of his obesity – 54’ waist size.

This raises at least two issues. First, should obesity be a “disability” under the ADA? If not, recall that the ADA also covers persons who are “regarded as” disabled – if this job applicant was regarded as unable to perform certain job functions because of his obesity, should he be covered under the ADA on that basis?

Second, even if the ADA applies, should McDonald’s be prohibited from choosing not to hire an obese applicant when it is expending millions of dollars in the effort to combat the charge that its food causes obesity? Should McDonald’s have the right to manage its corporate image in this way? Taking the issue a step further, should health clubs and weight loss centers be permitted to discriminate against obese job applicants for similar business reasons?

Click here to give us your point of view. Next month we will share your input (but we will never disclose your name, e-mail address or other identifying data without your permission).

ANALYSIS AND REVIEW: WHAT DO YOU THINK? -- April 2004

Our April 2004 What Do You Think? dealt with an employer’s right to conduct workplace investigations of incidents such as sexual harassment, embezzlement, violence, and so on. We reported on a change in the law that removed the requirement that employers give advance notice to employees who are under investigation by a third party hired by the employer, and we asked for your views on whether that would improve the quality of investigations, or whether it would lead to abuse and fabrications in violation of employee rights.

Your comments covered the full range of view points. No consensus appeared. Some felt that that the primary goal was to facilitate the investigation, and if employees were notified in advance, sources could be polluted. Others felt that employees had a fundamental right to receive advance notice of an investigation.

This much is certain: whether or not an employer properly conducted an investigation will remain a key element in an employer’s ability to defend against such claims as sexual, religious or nationality harassment, and in defending employee discipline and termination issues. Formerly, if an employee consented to a third party investigation, it was easier to defeat subsequent employee complaints about that investigation. Now that employers can conduct such investigations in secret, expect a raft of employee charges regarding the propriety of the investigation.

That heightens the need to be especially careful about who conducts the investigation, and how it’s done. Let us know if we can help.

Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@counselconsulting.com and visit our website at www.counselconsulting.com.

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