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Religion in the Workplace

Religion is the fastest growing and one of the most confusing areas in employment law.  The EEOC has issued extensive guidelines on the topic.  Most employers may not discriminate based on religion, must reasonably accommodate religious beliefs and practices, and must protect other employees against the unwelcome religious behaviors of their co-workers or managers.  Yet, some organizations can openly and legally engage in religious discrimination.  What is a “religion”?  The answer may surprise you.  The courts have even found that Atheists have a “creed” which qualifies as “religion” and must be reasonably accommodated.  Employers can be placed in “no-win” situations when the religious-based demands of one person might conflict with the religious beliefs or basic rights of others. 

What are the workplace rights of people of faith?  What is “reasonable” in accommodation?  Where does protected religious behavior cross into harassment of other employees, clients and customers?  What would you do when the religious conflicts, or war, in other  parts of the world are taken up by employees in your workplace?  Religion is serious business for those of faith, those without, and employers who must balance increasingly complex issues, accommodations and conflicts.  This article covers fundamentals about religion in the workplace, employee rights, employer responsibilities and guidance on these complex issues. 

I. Legal Foundation Regarding Religion in the Workplace

II. What is a “religion” under the law?

  • Right to have a religion
  • Right to be free from religion
  • Exceptions for “religious employers”

III. Discrimination and Reasonable Accommodation

  • Discrimination
  • The interactive process
  • Common issues of accommodation
  • Right to be a person of faith
  • What is “reasonable”?

IV. Rights in Conflict

  • Restrictions on religious behaviors
  • Valid” company policy
  • Inflicting unwelcome attention on others


 I.  LEGAL FOUNDATION

First Amendment to the Constitution

… Congress shall make no law respecting an establishment of religion . . .”

The First Amendment is applicable to the states and their political subdivisions, through the Fourteenth Amendment to the United States Constitution and 42 U.S. Code §1983.  Everson v. Bd. of Educ. (U.S. S.Ct. 1947).  [Up to four year statute of limitations and unlimited damages; plaintiff can sue individuals, as well as organizations.]

The U.S. Supreme Court has interpreted the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate against persons on the basis of their religious beliefs and practices, may not delegate a government power to a religious institution and may not involve itself too deeply in such an institution’s affairs.  County of Allegheny v. ACLU, U.S. S.Ct. (1989). 

The Court has stated that at a minimum, the Establishment Clause means: 

Neither a state nor the Federal Government can set up a church.  Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.  Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.  No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.  No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, nor may the Federal Government, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa

Prayer at meetings violate Title VII and establishment clause.  A First Amendment example is Warnock v. Archer (8th Cir. 2004).  The court ruled that incorporating prayer into required meetings violates employees’ rights.  [Requiring an employee to be present for unwelcome prayer would also violate Title VII, even if the employee were excused from the meeting, perhaps with consequences of missing out on important work information.]  A public sector employer may not have prayer as part of a meeting agenda.  That would be an official “endorsement” of a religion and violate the Constitution’s Establishment Clause. 

Coach’s 50-Yard Line Prayer Is Prohibited.  A high school football coach always went to the 50-yard line and openly prayed immediately at the end of each game.  He was directed not to do so.  He refused to stop, claiming he was a devout Christian and was expressing his faith.  He filed a lawsuit against the school district claiming a right to continue praying on the field.  The court ruled against him.  His actions were done in his position as a paid public employee – not as a private citizen.  He was sending a message that the school district was endorsing a specific religion and a specific religious practice.  The Constitution prohibits employees, while being paid by the taxpayers, in their official capacity, to engage in the promotion of any religion.  The school had a duty to order him to cease in order to avoid liability for violation of the First Amendment Establishment Clause.  Kennedy v. Bremerton Sch. Dist. (9th Cir., 2017). 

Public displays of religion or social opinion can be complicated and confusing.  Students are not paid public employees.  So, in some circumstances they may have more rights to express their religion or political views than do the teachers or coaches.  Professional football players who take a knee are private sector employees (not paid by the taxpayers) of a private sector NFL team, so the Constitutional prohibitions or rights do not apply to them and their expression.  It is a different legal standard (unless one considers a municipally-owned stadium is a public utility-public forum and the “political statement” part of the pre-game proceedings are outside the scope of their job description and job duties.  Then the players may have a much greater Constitutional right as citizens to their freedom of expression for those two minutes). 

Religious Freedom Restoration Act (RFRA)

42 U.S. Code §2000bb, et seq. 

            (a)        In general:  Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. 

            (b)        Exception:  Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — 

                        (1)        is in furtherance of a compelling governmental interest; and

                        (2)        is the least restrictive means of furthering that compelling governmental interest.

A “person” whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.  [Generally, a four-year statute of limitations; covers only government action; not private employers.] 

Company owners can impose their religious values regarding health insuranceIn Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that a closely-held corporation is a “person” under the Religious Freedom Restoration Act, and can assert its owner’s religious beliefs against the Affordable Care Act’s provision of contraception coverage.  Thus, business owners can refuse to provide health insurance coverage for those parts of the Act which they find religiously objectionable, and the company employees will have no company coverage for those particular items.  RFRA provides that government action (laws and regulations) should not impose a substantial burden on a person’s religious beliefs or practices unless there is a “compelling government interest,” and is imposed using the “least restrictive means.”  The Court found the contraception coverage did not meet this test.  The Court also opined that the employees could personally pay or the government (taxpayers) could pick up the tab for any coverage a company owner found objectionable – if it truly was a compelling government interest.  Though the decision stated that the EEO anti-discrimination laws do create a valid compelling interest, this decision is likely to generate a series of cases in which companies attempt to seek exemption from coverage under a variety of other laws and regulations by claiming the owners have a religious objection.

Title VII of the Civil Rights Act of 1964 [42 U.S. Code 2000e(j)]

“It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s … religion.” 
“The term ‘religion’ includes all aspects of religious observance or practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 

[300-day statute of limitations and limited damages; generally only employer liability]

42 U.S. Code 1981 (The Civil Rights Act of 1871)

This law prohibits race discrimination in contracts and other areas of business and public life.  Employment is one of the “contracts” recognized under §1981.  Section 1981 was passed soon after the Civil War in order to give protection to freed slaves.  However, it has expanded greatly from the original “black-white” scope.  “Race” has been a very loose concept in the United States, and has been applied to many “out-groups,” Native Americans, Asians and various Hispanic groups.  In the 1800’s the Irish were often referred to as the “Irish race” with many stereotypes and negatives.  In the early 1900’s Congress passed anti-immigration laws to severely limit the number of people from the “Southern European Races” (Italian, Spanish, Albanian, Serbs, Portuguese, Greeks, Turks) while encouraging the immigration of the Northern European races.  So many Southern European “white” people were able to file under §1981 for racial discrimination.  The Southern European Races were also predominantly Catholic, Eastern Orthodox or Muslim, and in large part the exclusion laws were founded on religious bias.  Thus, religion became tied into “race.” 

In recent years, there have been §1981 cases due to discrimination against the “Jewish Race” and the “Muslim Race” (especially Muslims of Arabic or Iranian origin or descent).  Thus, ethnicity and religion continue to combine to fit under 42 U.S. Code 1981. 

[42 U.S. Code §1981 has a four-year statute of limitation.  Cases can be filed against public or private employers.  One can also sue individuals personally.  There is no limit on the amount of liability.] 

IIWHAT IS A “RELIGIONORCREEDUNDER THE LAWS?

The employment cases under the First Amendment, 42 U.S. Code §1981 and Title VII (as well as Most States Equal Employment Opportunity Laws) have all adopted the same definitions of “religion.” 

The EEOC Regulations state:

“… 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.  This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970).  The Commission has consistently applied this standard in its decisions.  The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”  29 C.F.R. 1605.1.

Creed

Creed means a system of religious beliefs, including moral or ethical beliefs about right and wrong, that are sincerely held with the strength of traditional religious views.”

Atheists are afforded the same protections under Title VII as those who belong to other “religious” beliefs.  This protection is based on the theory that the law also protects the freedom not to believe.  Reed v. Great Lakes Companies, Inc. (7th Cir. 2003).  Hence, an employee’s refusal to participate in staff meetings that commenced with prayer were protected.   Young v. Southwestern Sav. & Loan Assn. (5th Cir. 1975). 

The key U.S. Supreme Court case in this area, decided during the Vietnam War, set forth the test be applied when determining whether a religious belief is bona fide for religious exclusion from the military draft:

“The test might be stated in these words:  A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.”

The Court made it clear that these sincere and meaningful beliefs that prompt the registrant’s objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion.  It held that the law “does not distinguish between externally and internally derived beliefs,” and also held that “intensely personal” convictions which some might find incomprehensible or incorrect come within the meaning of religious belief in the Act.  Welsh v. United States (1970). 

Based upon this decision, the EEOC developed the broad definition of “religious belief” in the above regulations. 

Is vegetarian a religion?  A hospital required all employees to have a flu shot.  It did exempt those whose religion prohibited them from vaccination, under Title VII’s reasonable accommodation requirements.  One employee refused to get the shot, claiming that she was vegan and the flu vaccine was made using an egg-based medium.  Thus, the shot would put an animal product in her system.  The hospital fired her for not following its policy.  She sued for religious discrimination, claiming a sincere religious belief in her vegan practice.  The hospital claimed her social beliefs and lifestyle did not equate to a religion under Title VII.  However, the court found sufficient foundation for the case to proceed.  Title VII covers “moral or ethical beliefs … held with the strength of religious views.”  The plaintiff’s strongest point is that she quoted Biblical scripture about dietary restrictions and purity while refusing the flu shot.  Chenzira v. Cincinnati Children’s Hospital (S.D. Ohio 2012). 

Onionhead Is A Religion.  Concerned about low morale, and wishing to improve the corporate culture, a company brought in a motivational consultant to implement a program titled Harnessing Happiness/Onionhead.  The motivational program was mandatory, and integrated into daily company practices.  Then employees complained.  The program seemed more “devotional” than motivational, and conflicted with their personal religious values; one citing her specific Catholic beliefs.  The program required employees to daily “thank God for their jobs,” to say “I love you” to managers and co-workers, and program materials referenced God, demons, Satan, “divine destiny” and the 12 virtues related to the Garden of Eden.  Employees were pressured to personally adopt the Onionhead belief system and management allegedly coerced those who were resistant.  The EEOC found that this met the definition of imposing a religion.  The EEOC Guidelines state that religion includes new and uncommon belief systems that are “not part of a formal church or sect,” even if “only subscribed to by a small number of people,” and even if the beliefs “seem illogical or unreasonable to others.”  The court agreed that Title VII defines religion broadly, and could include this situation.  EEOC v. United Health Programs of America (E.D. NY, 2016).  [This situation might also create an issue under the National Labor Relation Board’s rulings regarding company policy or practice which tends to chill employees’ rights to complain about management, work conditions and culture.  Forcing people to thank God for their job, and to say I love you to managers seems to run counter to the NLRB’s interpretation of the protected right of employees to openly gripe and complain.]  This case may be a caution against requiring employees to “zealously” follow the principles of the newest motivational theory by the latest management guru. 

What Does Not Rise to the Level of a Religious or Protected Creed?

Cultural or political beliefs are not equivalent to “religious beliefs” and are not afforded the religious discrimination protections. 

Membership in the Klu Klux Klan is not protected “religious” belief.  In Slater v. King Soopers, Inc. (D. Colo. 1992), the employee alleged that he was fired for his organization of a KKK Adolf Hitler rally.  The court concluded that “… the KKK is not a religion for purposes of Title VII.  Rather the KKK is political and social in nature.” 

An employee fired for refusing to cover/remove Confederate flag symbols does not state a claim for religious discrimination under theory that he is “Confederate Southern-American.”  No claim that anything fundamental to his religion required display of Confederate symbols. 

But see Peterson v. Wilmur Communications, 205 F.Supp. 1014.  Employee entitled to summary judgment on religious discrimination when he was demoted after he publicly announced he held a white supremacist religious belief system and he supervised minority employees.  (Again race and religion combine into one.)  (Also see Schwartzentruber v. Gunite Corp. (N.D. Ind. 2000 regarding the “United Church of the KKK” cited later in this article.)

Legal Exemptions for Religious Employers

The First Amendment creates a very large legal exemption for religions from many legal actions, not just employment cases.  The exemptions include not just worship facilities but also exemptions, or partial exemptions, for religiously-affiliated organizations.  Some of these may be non-profits such as church run schools and colleges, Jewish Social Services, Catholic charities, the Lutheran Foundation, Buddhist Benevolent Association, etc.  Others may be engaged in for-profit business but are still religiously affiliated, such as St. Mary’s Hospital, the Methodist Nursing Home and a variety of other care, residential or treatment programs which take patients/clients from the general public and bill standard rates to Medicare, health insurance or the service recipient.  The latter in-business organizations have a more limited exclusion from the laws. 

Some Large Health Care Corporations Can Be ERISA ExemptAdvocate Health Care Network, et al. v. Stapleton (June, 2017).  ERISA covers employment retirement plans of private sector for-profit and non-profit organizations.  It has always had an exclusion for church plans “established and maintained by a church or a principally religious purpose body.”  This exclusion is due to the First Amendment separation of church and state, which prohibits governmental intrusion into the affairs or operations of a religious body.  Under the exclusion there is no requirement for religious organizations to maintain viably funded plans, and indeed a number of church plans have gone bust, leaving employees without expected retirement and without any legal remedy.  The question in this case was whether large nationwide church affiliated medical networks – which charge full fees to patients, take standard medical insurance payments, take Medicare/Medicaid monies from the government, and make multi-millions in charging for services, are “religious purpose” organizations.  The court ruled that they are “religious organizations” and exempt from ERISA, as long as they were established by and maintain a close relationship with a church or religious denomination and maintain a formal “non-profit” corporate status.  Thus, their employees have no ERISA protections, and no right to challenge the details or solvency of the plans under ERISA.  This was not a close case, based on “party lines.”  All the Justices voting agreed that religiously affiliated organizations were exempt.  (J. Gorsuch abstained because the case was argued before he took office.) 

A court’s intervention in ecclesiastical or clerical interpretation of faith, theory, ministerial conduct or decisions as to moral fitness or morally correct action would interpose the courts into interpreting religious matters and violate the First Amendment. 

The church is still liable for non-religious activities or decisions, for example, injury on church property.  (The decision to leave an icy sidewalk uncleared is not “faith based.”)  Property purchase, debts, business contracts, utility bills and acts of the clergy clearly outside the scope of faith-based decisions are not immune from litigation.  Individual clergy can also be sued for their illegal acts and acts outside the faith based scope.  

The ministerial exception does not apply if a decision either violates criminal law or is not based on a theological or doctrinal foundation.  Where the exception does not apply, the courts can be expected to involve themselves in church decisions.  One cannot use religious status to excuse illegal acts.  Employment Div. v. Smith (U.S. S.Ct. 1999). 

Religion as Employer

Under the First Amendment, decisions about religious questions, including employment decisions about staff with theological standing (e.g., clergy, religious education staff, choir directors) are protected.  This is often called the “ministerial exception” established in McClure v. Salvation Army (5th Cir. 1972).  As long as the employment decision about the employee’s attitude, ability or competence to carry out his or her role is based in church doctrine, any decision of the church is beyond court challenge.  Churches are exempt from the employment laws in the hiring, supervision and discharge of clergy and occupants of other religious positions, if the decisions are based on considerations of religious principle. 

If the employment position at issue is inherently “ministerial” or “ecclesiastical,” the religious protection embodied in the federal and state Constitutions preclude the government from enforcing the mandates of the employment acts against the religious association. 

“A state agency or court confronting the issue of whether a position is ministerial or ecclesiastical must immediately resolve the question before further investigating or reviewing the employment complaint.  As a general rule, if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered ministerial or ecclesiastical.  This test should provide a basic framework to follow when addressing the question of whether a position is entitled to Constitutional protection from state interference.”  Jocz v. LIRC, (Wis. Ct. App. 1995); Serbian Eastern Orthodox Diocese v. Milivojevich (U.S. S.Ct. 1976). 

A religious entity is not immune from clearly nonreligious decisions about clergy such as sexual harassment of one clergy member by another, i.e., Rev. Pamela Combs v. Tex. Conf. of the United Methodist Church (5th Cir. 1999). 

In Black v. Snyder (Minn. Ct. App. 1991), the court allowed a member of the clergy to sue the church over a purely non-doctrinal decision, the discharge of an assistant minister for refusing the sexual advances of her superior.  Since sexual coercion is not sanctioned by church doctrine, the assistant minister was free to file a standard employment discrimination case against the church to challenge the discharge. 

Ecclesiastic employee can still sue for sex discrimination in the enforcement of religious doctrine, $2 million verdict.  A female teacher was fired for violating a Catholic school’s morals policies, when she received invitro fertilization in order to become pregnant.  The court ruled that she was an ecclesiastic employee, so it could not judge whether the morals decision was unfair, but could retain jurisdiction over the sex discrimination claim, because the school had different and sexually discriminatory morals standards for male teachers.  Men who visited strip clubs, etc. were not even disciplined, much less fired.  A church can freely make morals decisions, but should do so equally.  A jury awarded $2 million in damages.  Herx v. Diocese of Ft. Wayne (N.D. Ind., 2014). 

Other cases assessing this employment law exception are

Catholic school elementary teacher is a “ministerial employee” - court adopts tight standard.  A 53-year-old grade school teacher was discharged after 30 years at a Catholic school.  She sued for age discrimination under the Wisconsin Fair Employment Act.  Her teaching duties included short religious lessons each week, leading students in prayer and incorporating religious themes into classes.  The Wisconsin Equal Rights Division and lower courts balanced these against her overwhelming “primary duty” of teaching standard educational topics and allowed her case to proceed.  However, the Wisconsin Supreme Court rejected this standard and adopted a “qualitative” approach.  It ruled that a grade school teacher was “an important instrument in a faith-based organization’s efforts to pass on its faith to the next generation.”  Therefore, the Constitutional separation of church and state prohibited the state from interfering with the church school’s internal decisions regarding ministerial employees.  It dismissed the case.  Conlee Catholic School v. Labor Industry Review Commission (Wis. S.Ct. 2009).  The court also stated that this standard might not apply to secondary school teachers who spend only an hour or so a day with students and are more focused on the academic topic instead of being responsible for the full-day class environment like a grade school teacher. 

Religious preclusion trumps ADA case.  A teacher at a church-run K-12 school was discharged after taking a leave to treat the condition of narcolepsy.  The school administrator was reluctant to reinstate her due to concerns about the condition.  When she threatened to sue under the ADA, her contract was terminated.  She then sued, with the backing of the EEOC, for disability discrimination and retaliation.  The court dismissed the case.  The teacher was a “ministerial” employee, unlike the lay teachers at the school (who are covered by the ADA and other standard employment laws).  This teacher had special additional duties to lead prayers and help with student devotionals.  She took special religious training for these duties and received a resulting extra pay stipend which the school’s lay teachers did not.  Therefore, the courts could not interfere with the religious organization’s decision about the ministerial employee.  EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School (U.S. S.Ct. 2012). 

Teachers’ union cannot enforce contract against Catholic school.  A federal court in Massachusetts ruled that the Constitution makes a school operated by a Catholic diocese immune from legal action by a teachers’ union because it would involve government (court or NLRB) interference into the internal decision making of a religion.  So, the union has no enforceable contract rights.  Boston Archdiocese Teachers Assoc. v. Archdiocese Central High Schools, Inc. (D. Mass. 2005).  Further, the union had tried to subpoena the Bishop and other ecclesiastical officials to question them on their “good faith contract decisions” under the labor law.  The court decided that legal inquiry into the “good faith” or any form of “faith” based decisions of a religious official crossed the Constitutional line and was impermissible. 

Court splits issues on minister’s sexual harassment claim.  In Elvig v. United Presbyterian Church (9th Cir. 2004), the federal circuit court ruled on a female minister’s sexual harassment and retaliation claims.  It found that she could maintain a Title VII case for “hostile environment” harassment and collect damages for emotional distress and harm to reputation.  Sexual harassment is not arguably part of a church’s “theology” and is an exception to the “ecclesiastic immunity” doctrine (just as clerical sexual abuse criminal cases cannot be defended by a Constitutional immunity claim).  On the other hand, the court dismissed the minister’s claim about retaliatory discharge and not being allowed to apply for other pastoral positions.  These are “tangible employment actions” (hiring and firing) and are covered by the ecclesiastic immunity of the First Amendment. 

III.  DISCRIMINATION AND REASONABLE ACCOMMODATION

The primary federal law prohibiting discrimination is Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq.  This prohibits discrimination, including harassment, on the basis of race, color, sex, national origin and religion.  It is enforced by the U.S. Equal Employment Opportunity Commission. 

The EEOC has issued revisions to its Compliance Manual on Religious Discrimination (29 Code

of Fed. Regs. 1605).  The revisions include a “Best Practices for Employers” guidance.  See www.eeoc.gov/policy/docs/religion.html.

Discrimination cases generally fall into the categories of (1) bias in basic employment decisions (hiring, promotion, discipline, termination or conditions of employment); (2) failure to accommodate; and (3) harassment. 

Hiring or Maintaining Employment

“Family values” son sues father and brother under Title VII.  An employee filed a Title VII suit against a family-owned company in which the President was his father, and his brother was the Chief Operating Officer.  The employee had dropped out of the Fundamentalist Church of Latter Day Saints (FLDS), leading to family discord and harassment at work by other employees.  He alleged that he was expelled from the company and not allowed to come back to work.  He secretly tape recorded conversations with the company President which showed that the company refused to employ anyone who was not a member of the church and that he was told he could resume work only if he rejoined the church.  In ruling against the company’s motion for summary judgment, the court rejected any argument that the tape recordings were private family discussions, and admitted them as direct evidence admissions of religious bias in employment.  Fischer v. Forestwood Co. (10th Cir. 2008). 

“An Adequate Amount Of Hate” Leads To Half Million Settlement – Company President Prohibited From Employment Involvement.  The owner and president of an aerospace technology company engaged in repeated hostile comments and emails regarding Muslims.  Complaints were filed with the Washington State Civil Rights Agency regarding refusal to hire Muslims and creating a hostile environment.  The company characterized the comments as just “jokes” placed on the company’s system and listserve.  The “jokes” included comments referring to Iraqi job applicants as “They will be sleepy, because they are up all night making bombs.”  Another post was “I can tell you that most Chinese hate Muslims, not as much as me, but an adequate amount of hate.”  The owner closely scrutinized applicants to try to avoid Muslims.  When a non-Muslim employee objected to the ongoing comments, the owner told her that it was his company, and if she did not like his views she “had to leave.”  In addition to paying a half million dollars, the company has revised its hiring processes.  The settlement terms also remove the owner/president from being involved in hiring or any other Human Resources or employment-related processes in his own company.  Washington v. Electroimpact, Inc. (Wash. Superior Ct., 2017) [Any individual is entitled to personal political, social and religious opinions.  Companies in business, however, may not infect employment decisions or the work environment with these individual beliefs.  The laws require practices in which all people are not subject to discrimination.  For more information on the legal effects of “joking,” see the article “It Was Just a Joke” or the seminar “Is It Humor or Harassment?” by Boardman Clark.] 

Conditions of Employment

Mandatory prayer violates employee’s rights.  A teacher sued the school district because prayer was an integral part of mandatory meetings and training sessions.  The case was based on violation of the Constitution’s Establishment Clause.  The court found that the district had engaged in “decisive endorsement” of a religion.  The teacher was awarded only $1,000 in damages, but the district also had to pay $20,000 for the plaintiff’s legal fees.  The court also issued an injunction prohibiting further prayer at official meetings and training.  Warnock v. Archer (8th Cir. 2005). 

Witness fired for not saying “Merry Christmas.  Some Christian activists object, and boycott companies which they allege have “taken Christ out of Christmas.”  Yet they seem to forget that there are many devout Christians who object to, and refuse to incorporate Christ into a sales holiday, devoted to celebrating commercialism.  Appleyard v. Murphy Oil USA (W.D. Tenn., 2016) involved a Jehovah’s Witness who stated that his religious beliefs prevented him from acknowledging the “Holiday” or wishing others a Merry Christmas in his job as a gas station cashier.  He asked for an accommodation such as wishing customers “Seasons Greetings” or continuing the same “welcome” and “thank you for your business” phrases used during the rest of the year.  The case alleges that a manager then began to belittle the Jehovah’s Witness, made derogatory remarks about his faith and then fired him. 

Sick leave is ungodly.  A transportation company had to pay almost $1 million in punitive damages for religious discrimination.  The workplace was “saturated” with religious views of the company president.  Among these was the belief that using sick leave demonstrated the employee’s lack of faith in God.  There were also corporate prayer sessions.  Those who objected to the prayer sessions and those who took sick leave received negative attention or discipline.  Millazzo, et al. v. Universal Traffic Services, Inc. (D. Colo. 2003). 

Discipline or Discharge

Ethiopian Christian may sue for discrimination by Somali Muslim managers.  A federal court denied summary judgment, allowing a religious discrimination case by a fired Ethiopian Christian.  The court found sufficient foundation to proceed to trial on allegations that in the two years after Somali Muslim managers were hired at a parking facility, the toll booth attendant workforce went from 50% to 90% Muslim; supervisors were rewarded for firing Ethiopian Christians; the plaintiff was forbidden to read his Bible on break or slow times, while Muslims were allowed prayer breaks and could display their religious materials in their toll booths.  A Muslim ex-supervisor testified that the Somali managers offered cash bonuses to any supervisor who fired an Ethiopian Christian.  Delelegne v. Kinney Systems, Inc. (D. Mass. 2004).

Saleswoman harmed by company owner’s religious principles.  A Catholic was the only female in the sales force of a company owned by a member of the Protestant Reformed Church.  Most other salesmen were also members of the owner’s church.  The saleswoman was fired for low sales.  She sued under Title VII and Michigan’s EEO law for sex and religious discrimination.  The court found in her favor.  The evidence showed that all salespeople had a slump when the economy tanked.  However, the owner denied the saleswoman the chance to develop accounts in other areas, stating that under his religion women should stay home and care for their families and overnight travel out of the immediate area would violate this role of women; she should not be “doing a man’s job.”  Men, though, were allowed to expand their territories at will.  If she had an out-of-the-area prospect, it was assigned to a man for follow-up.  New cold call account opportunities were also assigned to other salesmen who were members of the owner’s church; he told the saleswoman that he could not trust her as much since she was of a different religion than he and the others.  The court found ample evidence that the company denied the saleswoman a fair chance to make sales, while enhancing the chances of the salesmen based on gender and religion.  Zsenyuk v. Kams, Inc. (E.D. Mich., 2013). 

Fired For Objecting To Supervisor’s Proselytizing – CEO Made No Effort To Investigate.  A non-Mormon agricultural tractor driver was subject to ongoing religious proselytizing by his Mormon supervisor; both verbal and being given religious literature and questioned about his “progress” in reading the Mormon Bible.  He had excellent performance, received compliments on his work, and a promotion.  He finally went to the company president/CEO to complain.  The president allegedly told him to listen to his supervisor and threatened him with discipline if he did not.  Then the supervisor learned of the complaint and promptly fired the employee due to “poor communication.”  In the ensuing Title VII and state EEO case the evidence showed that the supervisor had always described the employee as “a good performer with a great attitude,” thus making the discharge seem pretextual.  The CEO testified that he fully understood the employee was complaining about religious harassment, but he then personally “jumped to a conclusion” there was no discrimination, so did not do any investigation.  Thus, he failed to put forth the required effort to seriously follow up on complaints of discrimination.  Magden v. Easterday Farms (E.D. Wash., 2017).  This is another example of management substituting its own opinions and conclusions rather than seriously listening to an employee’s religious concerns.  It is also an example of the danger of not taking a serious look into the harassment concerns raised by employees, as is required by the EEO laws; whether you personally “believe” the complaint or not. 

Reasonable Accommodation

Title I and many state EEO laws require employers to provide reasonable accommodation regarding religious practices or beliefs to qualified individuals who are employees or applicants for employment, unless to do so would cause undue hardship.  “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual to perform the work and adhere to their beliefs or practices.  Accommodation is to eliminate the conflict between the religious practice and the employer’s policies.

Essential Functions 

“Fundamental” or “core” duties of the position.  Reasonable accommodation focuses on the essential functions and enabling the employee to perform the essential functions of the job.

An employer does not have to eliminate an essential function of the position.  Nor is an employer required to lower production standards - whether qualitative or quantitative - that are applied uniformly to other employees. 

The employee’s position description may be the key to establishing the essential functions. 

Undue Hardship 

“Undue hardship” means significant difficulty or expense and focuses on resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.  Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive or those that would place extra burdens on others, violate other laws or fundamentally alter the nature or operation of the business.  An employer must assess, on a case by case basis, whether a particular reasonable accommodation would cause undue hardship. 

The Interactive Process

When a disability creates a work issue, the employer and employee should engage in an “informal interactive process” to arrive at a reasonable accommodation. 

Courts are holding that this process is mandatory.  Once the employer knows of the employee’s desire for an accommodation, the employer must engage in good faith communication and exploration of accommodations.

Initiation of the Process

Generally the employee or applicant initiates the process by informing the employer of the issue and that it has work effects which may need accommodation. 

No “magic words” are required.  The EEOC emphasizes a “plain English” request, and the employee “need not mention Title VII, or any other law, or use the phrase ‘reasonable accommodation.’”  Virtually any statement that lets a supervisor know that a religion or creed is causing some sort of work issue can be sufficient to put the employer on notice. 

Employer Response

            1.  Listen, discuss and clarify the issues.  What is the belief or practice?  How does it affect the work?  What sort of accommodation does the employee believe will be effective?

            2.  The employer may request “reasonable” documentation of a religious practice.  However, strongly held individual beliefs may qualify as religion or creed and may not necessarily be “documentable” or “validated” by the particular religious “authorities.” 

Reasonable Time Frame

The parties are supposed to communicate and cooperate to reach a solution.  Quitting before the communication is complete or the accommodation is provided can result in dismissal of the plaintiff’s case or the employer’s defense.  The process is not perfect, and there will be frustration and delays.  Unless they are unreasonable, the parties must continue in the process to achieve accommodation or show undue hardship. 

Types of Accommodation

Time Off or Scheduling

There is NO legal requirement for an employer to grant any standard holidays for all employees.  There is a legal requirement to grant reasonable time for religious holidays, to those employees who are members of the particular religion which holds the particular day sacred.

There is no requirement for any extra paid holidays to accommodate religion.  The accommodation is use of vacation or days without pay.  The employee can choose whether to use vacation or take unpaid leave.  Cooper v. Oak Rubber Co. (6th Cir. 1994).

Seventh Day Adventist not entitled to all Saturdays off.  An employer is not required to violate the terms of a collective bargaining agreement (CBA) or valid seniority system for a religious accommodation.  In Harrell v. Donahue (8th Cir. 2011), a postal worker’s request for his Saturday Sabbath as a regular scheduled day off was declined.  He sued for religious discrimination.  The court held that the request would violate the CBA and impose an undue hardship on other workers and could be validly denied. 

Airline settles Sabbath case.  Mesaba Airlines agreed to reinstate and pay several customer service employees who were denied schedule accommodations for either Christian or Jewish Sabbath observations.  The company policy prohibited voluntary swapping of shifts during the probationary period — preventing the new employees from trading shifts in order to attend church or not work during their Sabbath observation.  EEOC v. Mesaba Airlines (D. Minn. 2009). 

Clergy Not Required For Funeral Leave.  Employees could receive up to three days funeral leave for death of a family member.  An employee requested leave due to the death of her father.  Management was informed that the ceremony was secular, involving a memorial speech by the widow, planting a memorial tree and a meal of remembrance.  The leave was denied because a “valid funeral” requires a member of the clergy to conduct the service, and a certificate of validation of the funeral by a member of the clergy.  So the absence was unexcused.  The employee grieved the denial, and won.  The Arbitrator found no such clergy requirement in the company funeral leave policy.  A non-traditional service was still a commemoration of the deceased and qualified.  Mich. Milk Producers Assoc. & Int. Brotherhood of Teamsters Local 7 (2015).  [The employer’s action may also violate the Title VII prohibition against religious discrimination.  It mandated conformance to a certain religious view of a “valid” observance, and left no room for other forms of spirituality.]

Stopping accommodation.  Home Depot accommodated an employee for several years, allowing him to trade shifts and scheduling no Sunday work, due to his belief of no-work on the Sabbath.  Then a new supervisor came in and informed him that she could not disrupt the schedule, and he must work Sundays.  The supervisor did offer a later start time so he could attend church, or part-time job status—with no benefits—where he could skip Sundays.  When the employee insisted on Sunday absence, he was fired.  The court ruled for the employee, finding that Home Depot had not presented evidence of any hardship reason to suddenly change an accommodation which had worked well for several years.  Further, the “accommodation” of a later start time was inadequate.  The employee’s religion required no Sunday work at all, not just during church time.  The court ruled that an accommodation that addresses only part of an issue and totally neglects the other is no accommodation at all.  Baker v. Home Depot (2nd Cir. 2006). 

L.A. Metro settles religious case.  The U.S. Justice Department and L.A. Metro Transit Authority settled a class action over religious discrimination in hiring.  L.A. Metro required drivers to be available — on call — 24 hours a day, seven days a week, 365 days a year (except vacation based on seniority).  This precluded applicants who needed a religious day off each week, or even periodically. The settlement required MTA to reasonably accommodate and provide a reasonable number of religiously-related days off each year.  United States v. Los Angeles Co. Metro Transit Authority (D. Cal. 2005). 

Million dollar verdict due to supervisor’s intentional “set-up”.  In Reed v. Mineta (10th Cir. 2004), the Appeals Court upheld a million dollar verdict (the trial court had already reduced it from $2.5 million) for intentional religious discrimination.  Mr. Reed’s religion required no work on Saturday.  The evidence was that the supervisor considered this a “scam - religion of convenience,” and then created an unusual scheduling situation designed to create a set-up for Reed to have to choose between Saturday work or his religion.  When Reed did not report for consecutive Saturdays, he was fired.  [Employers may not have to accommodate all requests for religious time off or special scheduling, but they cannot intentionally create hardships for a religious employee.]

Don’t Debate Theology – Just Go Ahead And Accommodate.  A coal miner stated that the company’s new hand scan clock-in system violated his Christian beliefs.  He could not use it because it “carried the Mark of the Beast,” which would imprint on his hand.  He asked for another form of clocking in.  The company felt that the employee was “mistaken.”  It offered its own “alternative interpretation of the Bible” and how a left hand clock-in could not be harmful since the Mark of the Beast seems to be associated with the right hand.  The company had the system provider write the employee “assurances” that the scanner did “not place a Mark.”  The employee continued to cite his sincerely held belief and cite his own sincere view of the Book of Revelations.  The company refused to budge, claiming they had made the “left hand accommodation.”  The employee refused to clock-in, had to resign, and filed a religious discrimination complaint.  The EEOC sued on his behalf and won $576,000 in lost wages, compensatory damages, plus attorneys’ fees.  The court ruled that it is not the company’s role “to question the correctness of an employee’s beliefs or the plausibility of the employee’s religious understanding.”  Title VII protects sincere religious beliefs and interpretations, regardless of whether they make sense, or seem implausible or bizarre to the employer or others.  The employer’s role is to see if a belief can be reasonably accommodated.  Another thing that sank the company’s case was the evidence that it had accommodated miners with hand injuries and other hand conditions, which made it difficult to use the new scanner.  It had set up a finger punch key pad code-in system for them – at the same time it was arguing with and refusing the other miner’s request.  The accommodation was already in place for those with disabilities.  EEOC v. Consol Energy, Inc. (4th Cir., 2017). 

Appearance

An employer must allow the wearing of religious garb and paraphernalia or other appearance issues unless it creates a safety issue or otherwise tangibly interferes with the employee’s accomplishment of the work. 

The employer must take action to prevent the wearer from being made fun of or otherwise harassed for the religious garb. 

Hair

Drug Testing – Hair SamplesJ.B. Hunt Transportation agreed to pay $260,000 to settle an EEOC action regarding failure to allow Sikh employees a reasonable alternative to its hair sampling drug testing policy.  Sikhs are religiously required to never cut their hair and alleged that the company’s policy violated their religious tenets.  Title VII requires reasonable accommodation when religious beliefs or practices conflict with company policy or practices.  (EEOC Settlement, 2016). 

Beards.  EEOC v. Federal Express Corp. (2001).  Federal Express entered into a consent decree to modify its Appearance Policy to allow beards or particular hairstyles if an employee’s sincerely-held religious belief is at issue.  The EEOC sued on behalf of a Muslim employee discharged for refusing to shave due to religious requirements.  The company also paid $140,000 in damages. 

Beards and safety.  A no-beard requirement for firefighters was upheld as a valid safety rule, since facial hair interfered with a good fit on respirators.  Though it had an adverse impact on certain religious groups and African American firefighters, due to pseudofolliculitis barbae (a skin condition predominantly affecting African Americans), the safety issue was a valid reason to enforce the rule.  Fitzpatrick v. City of Atlanta (1993); Vernon v. Berkeley (Cal. Ct. App. 2006). 

Dreadlocks.  A Rustafurian corrections officer with dreadlocks successfully challenged the dress code because of unequal enforcement.  He was disciplined for his religious-based refusal to change his hair style.  However, both a Sikh officer and a Jewish officer were allowed exceptions to the code for their religious needs.  He filed under Title VII and the Equal Protection Clause of the Constitution under 42 U.S. Code §1983.  Booth v. Maryland (4th Cir. 2003). 

In Brown v. FL Roberts & Co. (Mass. S.Ct. 2008), the Court found an employer had failed to show any undue hardship when it refused to accommodate a Rastafarian by redefining its policy requiring a clean shave and neatly cut hair.  The company refused to even discuss alternatives with the employee, violating a main principal of reasonable accommodation, the “interactive process.” 

One must be clear about religious grounds for hair style.  An applicant for employment was told his dreadlocks violated the company dress code.  He told the interviewer that cutting his hair would be “against his beliefs.”  When not hired, he sued for religious discrimination, claiming the hair related to his Rastafarian religion.  The court dismissed the case, finding that he had not made an explicit religious claim requiring the employer to consider a reasonable accommodation to the dress code.  The interviewer was not familiar with the Rastafarian religion or its beliefs.  The applicant never mentioned the word “Rastafarian” or the word “religion.”  The term “my beliefs” was simply too vague to trigger an employer’s knowledge that religion or a duty to accommodate might be involved.  Xodus v. Wackenhut Corp.  (7th Cir. 2010)

Clothing and Jewelry

Staffing agency discriminated against Baptist woman who refused to wear pants.  A staffing agency did not allow a woman to be placed with a food service client because she claimed her Baptist religion dictated “women should not wear slacks or any other male apparel.”  The placement agency’s client, the food service company, required all employees to wear black slacks and white shirts.  She offered to wear a black skirt, but the placement agency would not consider the accommodation.  The agency claimed that it did not set the standard; it only adhered to the requirements of its clients.  The court rejected this defense.  Title VII requires accommodation of religious practices, including modifying clothing requirements, and a staffing agency has a duty to work with its placement clients regarding accommodations.  An agency may not cooperate with clients for a discriminatory result.  EEOC v. Patty Tipton Co. (E.D. KY, 2012).  In EEOC v. Akebono Brake Corp. (D. SC, 2016), a company denied employment to a Pentecostal Christian woman because of her faith-based belief that women wear only dresses or skirts rather than the company’s required pants in its manufacturing facility.  The company did not engage in an interactive process to study an accommodation or present strong evidence of job necessity for pants only.  In order to be successful in denying a religious clothing accommodation, an employer must show the requirement has a compelling and necessary interest such as safety.  This requires an actual analysis of the job and situation. 

Headwear accommodation did not go far enough, and was selectively enforced.  The New York City Transit Authority allowed Muslim and Sikh employees to wear their religiously required headgear, turbans and khimars, but mandated the wearing of the NYTA pin or emblem on the headgear.  The employees objected, asking to wear the emblem on their shirt instead of on their religious garb.  The Transit Authority refused.  The Court ruled for the employees, finding no compelling reason to deny the requested accommodation.  Further, there was evidence of selective enforcement.  There were instances of other employees being allowed to wear baseball caps with non-NYTA logos, and without any discipline.  U.S. v. New York City Transit Authority (E.D. NY 2010).

Blockbuster pays $50,000 for improper dress code enforcement.  A Blockbuster store fired a

17-year-old Jewish employee for refusing to remove his yarmulke at work.  Title VII requires reasonable accommodation of religious practices, including clothing items.  When served with the complaint, Blockbuster Corporate promptly rectified the situation and settled the matter.  The EEOC issued a statement that “the company’s response should serve as a model.”  (EEOC v. Blockbuster, Inc. (D. Ariz., 2005.) 

Head covering.  American Airlines paid $60,000 and hired a Muslim plaintiff whom it had rejected as a ticket agent because of her commitment to wear a hijab head covering.  Title VII requires reasonable accommodation of religious practices, including modification of company dress codes or uniform requirements.  EECO v. American Airlines (N.D. Ill., 2002). 

EEOC v. Abercrombie & Fitch Stores – (U.S. S. Ct., 2015).  The U.S. Supreme Court ruled that Abercrombie & Fitch should not have rejected an applicant because her Muslim religious head covering did not match their style standards.  The company had a duty to reasonably accommodate under Title VII.  Though the applicant had not stated that the head scarf was for religious purposes, the hiring supervisor told her manager that she believed the applicant wore it “due to faith.”  The manager said all headgear, religious or otherwise, violated the “look policy,” and gave a no hire instruction.  The Court ruled that this was sufficient to find that religion and failure to accommodate was a motivating factor in the decision.  There was no effort made to consider a reasonable accommodation. 

On the other hand, a company had a rule against unauthorized head gear indoors in a certain facility.  A Sikh employee claimed a religious requirement to wear a turban at all times.  The company offered him six alternative jobs (two of which had higher pay), which he refused.  He was fired.  The court found no Title VII religious discrimination.  The court ruled that an employee is not entitled to the accommodation of his choice, just to a reasonable accommodation.  Bindi v. UAL Corp. (N.D. Ill., 2002). 

Religious jewelry is protected.  A library worker has the right to wear a cross on a necklace, as a sign of her faith.  Both Title VII and 42 U.S. Code §1983 (public sector employment “equal protection”) protect reasonable accommodations and religious rights of employees.  This allows a certain amount of expression of one’s religion at work, as long as one is not using it to interfere with others, and one is not engaging in “promotion” of religion in the workplace.  Draper v. Logan County (W.D. Kent. 2003). 

A school district was ordered to reinstate a teacher’s assistant, pay her legal fees and amend its dress code.  Her unobtrusive wearing of a cross necklace was protected by Title VII and the First Amendment of the Constitution.  Nichol v. ARIN Intermediate Unit 28 (W.D. Penn. 2003).  A born-again Christian who insisted on wearing the message “I ♥Jesus” on a lanyard while at work as a hospital painter had a valid case, only being fired because of his religious beliefs.  State Univ. of NY at Stony Brook Hosp., E.D.N.Y., 2012).  Also, see later Targore v. USA under RFRA

Oregon adopts religious clothing policy for school employees.  In 2011, Oregon repealed its law which forbade public school employees from wearing religious clothing or adornment while doing job duties.  The law mandated school districts to consider requests and engage in reasonable accommodation.  The state has developed guidelines as to what is and is not reasonable, including safety, size and whether the items convey a direct religious message intended for others (either proselytizing, or demeaning another religion). 

But - -

Police department can ban an officer’s cross on uniform.  A court rejected a police officer’s Title VII and First Amendment religious expression challenge to the department’s appearance code, banning his wearing of a cross.  The court held that a religious symbol takes on “a different cast when viewed on the context of a police uniform.”  The department had a compelling interest in avoiding the appearance of endorsing religion, and a police officer’s uniform “is not a public forum for freedom of speech.”  (The dress code banned all pins on uniforms, but not on officers who wore civilian clothes to work.)  Daniels v. City of Arlington, Texas (5th Cir. 2001). 

Police department can deny head scarf request.  A Muslim police officer was denied her request to wear a head scarf on duty as a religious accommodation.  She received a disciplinary suspension for wearing it anyway and sued under Title VII.  The court ruled in favor of the police department.  A uniformed police officer is different than a civilian-clothed job.  There is a valid reason to not create an appearance of crossing the Constitution’s Establishment Clause line in an official government uniform by allowing individual officers to add religious symbols.  There is a compelling interest for police to “maintain a neutral appearance.”  Webb vs. Philadelphia (3rd Cir. 2009).  [The courts have ruled differently regarding religious pins and dress on civilian- clothed detectives and other government employees who are not in uniform.]

Tattoos

Body piercer loses religious accommodation case.  An employee claimed that membership in the Church Of Body Modification required her to wear various facial piercings at all times.  The employer had a dress code forbidding most visible piercings, but offered the accommodation of allowing clear plastic retainers or band aid covering of the piercing while on duty.  The employee refused, left employment and sued for religious discrimination.  The court ruled that the accommodation was a reasonable offer.  Covering piercings did not impinge on the employee any more than wearing clothing to cover tattoos (which the employee also had, but, inconsistently, she did not claim that she was religiously required to reveal her whole body at all times).  Cloutier v. Costco Wholesale (D. Mass. 2004). 

KKK member could be required to cover racially offensive tattoo at work.  The court balanced personal rights against offensiveness to others and ruled that an employer could require an employee to cover a racially offensive tattoo to help prevent a hostile work environment.  The court ruled that even if the tattoo had been a “religious symbol” (“Church of the American Knights of the KKK”), the employer could still require the employee to cover it because religious freedom does not include the right to overtly offend others in the workplace.  Swartzentruber v. Gunite Corp. (N.D. Ind. 2000).

Safety and Health

(Two cases from the same court – different results)

Flu Shot Was Reasonable Mandatory Requirement For Muslim Hospital Worker.  A Muslim pediatrics employee refused the hospital’s flu shot requirement, because the vaccine contained a pork product.  The hospital offered an alternative vaccine without any pork.  The employee changed her position to state that her religion forbid any vaccination.  The hospital then offered her the opportunity for other non-direct patient contact positions, but informed her she could not work with patients without the shot.  The employee did not actively pursue other positions, and was ultimately terminated; characterized as a “resignation with ability to be rehired” at a later date.  The court dismissed the resulting religious discrimination case.  It found the hospital had a compelling health care reason to protect patients, especially children, from unvaccinated staff.  The hospital engaged in accommodation efforts, while the employee shifted her reasons, and did not actively pursue the accommodation.  Robinson v. Children’s Hospital (D. Mass., 2016). 

Christian Hospital Employee Should Have Been Allowed to Skip Flu Shot.  In EEOC v. Baystate Med. Center (D. Mass., 2016), the EEOC claims a hospital discriminated by not accommodating a Christian employee’s refusal to take a flu shot based on her Biblical interpretation, and would not wear a surgical mask at all times while on the job if she was granted a shot exception.  The employee worked in administration as a recruiter.  She did not have patient contact.  The EEOC recognized patient safety as a compelling reason to require shots, if one had regular patient interaction.  However, it asserts the medical facility did not show a reasonable basis for the requirement for a person who works in a non-patient area, nor of having to wear a face mask at all times when working with non-patients, and largely with other people who are not in direct patient contact. 

Does the Government Employer Violate the

First Amendment by Accommodating Religion?

The government may not discriminate against someone on the basis of religion, but Title VII’s “reasonable accommodation” section may be less enforceable in the public sector.  Accommodation may exceed the bias protection of the Fourteenth Amendment and “does not maintain neutrality toward religion” by the states under the First Amendment.  Endres v. Indiana St. Police (7th Cir. 2003).  There is some tension between the “pure” First Amendment and Congress modifications under the Religious Freedom Restoration Act (RFRA).  Clearly, overtly religiously based decisions are improper.  However, where a general rule or policy has an impact on a person’s beliefs, RFRA requires consideration of “compelling interest” and accommodation.

Closing government offices on religious holidays.  In Freedom From Religion Foundation, Inc. v. Thompson (W.D. Wis. 1993), the court declared Wis. Stat. §895.20, which provides that on “Good Friday, the period from 11:00 a.m. to 3:00 p.m., shall uniformly be observed for the purpose of worship,” unconstitutional because it has the purpose and effect of advancing religion in violation of the Establishment Clause. 

Metzl v. Leininger (7th Cir. 1995).  Illinois violated the Establishment Clause by closing public schools on Good Friday.  Although the court recognized that secular justification was possible, none had been offered.  “The First Amendment does not allow a state to make it easier for adherents of one faith to practice their religion, unless there is a secular justification for the difference in treatment.” 

            However . . .

Homeland security should have accommodated three-inch “sword blade” for Sikh agent.  An IRS agent converted to the Sikh religion and began wearing faith-based articles including the Kirpan, a short, curved sword.  She was informed that this violated the security provisions for federal buildings, prohibiting any blade over 2 1/2 inches.  She offered to wear a three-inch blunted blade, and the Sikh Coalition verified that any shorter blade was not allowable as a valid Kirpan.  The agent insisted on the need to wear her religious symbol, and was fired for inability to be admitted to the building where she worked.  She sued the IRS and the Homeland Security Administration under both Title VII and the Religious Freedom Restoration Act (RFRA).  The Title VII case was dismissed because it generally covers only the employer as a defendant.  The employer, IRS, did not make or enforce the building security decisions.  The NSA made the decisions, but was not her “employer.”  However, the NSA was covered by RFRA.  The government is required to accommodate religious issues unless there is a “compelling interest” to do otherwise.  The court found that NSA’s categorizing a three-inch blunted Kirpan as a “dangerous weapon” was unreasonable, while allowing 2 1/2 inch fully-sharpened knives of other sorts.  Further other federal buildings had made accommodations for longer Kirpans, and RFRA accommodation guidelines require individual assessment of actual dangers in making exceptions for items which might otherwise be on the “dangerous weapons” list.  Tagore v. USA (5th Cir., 2013). 

IVRIGHTS IN CONFLICT

Workplace Policies, Duties and Methods of Operation

An employee’s religious values may conflict with the organization’s policies, job duties, protocols or methods of operation.  An organization is required to consider modification or excuse the employee from performing duties or engaging in certain operations.  The organization is not required to modify to the point of changing the nature of the job, excusing one from basic performance or behavior standards. 

Diversity policy results in discriminatory actionAT&T adopted a diversity policy that required all workers to “value the differences” in all other employees.  A Christian employee, who believed homosexuality is a sin, asked for clarification of the policy.  When he did not receive clarification, he refused to sign the policy and was fired.  He won his religious discrimination lawsuit because despite the fact that he had vowed to treat all co-workers professionally and with respect, AT&T failed to accommodate his religious beliefs by failing to provide an explanation and ordering him to sign the policy.  Buonanno v. AT&T, 313 F. Supp.2d 1069 (D. Co., 2004). 

Baptist professor subjected to harassment for unpopular beliefs.  Universities take pride in the tradition of “academic freedom” and “free speech” and “open debate of ideas” and “diversity of thought.”  However, it does not always seem to work that way.  An Adjunct Professor of Social Work alleged that she was harassed because she declined to give open support to the campus Lesbian, Gay, Bisexual, Transgender (LGBT) Organization.  She said that under her Baptist faith, non-heterosexual orientations were morally wrong, and she could not support them.  She did not express antagonism or discrimination, or even opposition to the LGBT Organization’s right to be a part of the campus, only that she could not support it.  She was then allegedly subjected to harassment by the other faculty members.  Her bid for Assistant Professor was denied.  The committee was composed of LGBT supporters, some of whom refused to attend her interview for the position.  They recommended an allegedly less qualified candidate and also stated that she was “not a good fit” for the Department.  The court found sufficient evidence of these alleged actions to allow the case to continue to trial under Title VII, religious discrimination and 42 U.S. Code 1983, Equal Protection.  The §1983 case was against both the University and five named faculty members personally.  Gadling-Cole v. West Chester University (E.D. Penn. 2012). 

Employee discharged for posting anti-gay scripture messages.  A company’s Diversity posters and policy included sexual orientation among the various other EEO statuses listed (just as a number of states include sexual orientation in their anti-discrimination laws and require anti-discrimination policies regarding all EEO categories).  One employee interpreted this inclusion of “gays” as a company effort to change his moral values and as an attack upon Christian employees, and himself in particular.  He believed he had a duty to expose and fight “sin,” and must counterattack by posting “anti-gay” scripture and other messages.  He persisted in spite of company efforts to explain that the Diversity program merely promoted tolerance and did not advocate changing anyone’s religious or moral values.  He stated that his posted messages were “intended to be hurtful” to gay employees and refused to take them down.  He was fired.  In upholding the discharge, the court held that an employer has no duty to accommodate disrespectful religious messages.  Further, the company had a legal obligation to include sexual orientation in its EEO policies and efforts.  Peterson v. Hewlett-Packard Co. (9th Cir. 2004). 

County did not adequately consider clerk’s religious request to not register same sex couples.  Oregon passed a domestic partners law allowing marital-type rights for same sex couples.  An employee of a county clerk’s office asked to be exempted from registering same sex couples due to her religious beliefs against homosexuality.  The county denied the request and she was discharged for refusing to perform the duty.  In the ensuing Title VII case, the Court found sufficient cause for a trial.  Prior to the discharge, the county did not engage in an “interactive process” to even explore the accommodation request.  The evidence showed that in a two-year period, there were only 37 domestic partner registrations - taking about 10 minutes each. There were five other employees in the office, and no evidence that any one of them could not have taken the rare registration when it occurred.  The county showed no evidence of substantial interference with the office operations or public service if the accommodation were granted.  Slater v. Douglas County (D. Ore. 2010). 

Happy birthday not required.  The EEOC sued on behalf of a waitress.  A restaurant did not accommodate a waitress’s religious beliefs when it discharged her for refusing to sing its birthday song to customers.  The waitress, a Jehovah’s Witness, contended that personal birthdays are pagan celebrations and that it violated her beliefs to sing the restaurant’s 90-second song to patrons.  EEOC v. Chi Chi’s Restaurant (D.C. Md. 1996). 

Harassment

Employees have a right to have a religion, or not.  Unwelcome attention which is severe or pervasive can be harassment.  People may be harassed due to being religious.  Due to not being “religious enough.”  Due to being of a different religion.  Due to unwelcome proselytizing.  In an increasingly diverse and international workplace, people even react to religious/ethnic conflicts in other parts of the world and bring their group wars into the workplace. 

Employee wins “perceived as” religious harassment case.  In Johnson v. Spencer Press of Maine (lst Cir. 2004), the court awarded $300,000 in compensatory damages and an additional $200,000 in front and back pay for religious harassment.  The employee was known to be religious and not go along with the general banter of the workplace, especially sexual banter.  The supervisor then engaged in a prolonged pattern of sexually suggestive behaviors and overt sexual commentary with repeated remarks about the employee’s religious beliefs and morality.  In spite of repeated complaints, the company did not act to stop the supervisor.  The court found “extreme” harassment.  An interesting facet of the case is that the harassed employee was a member of the Assembly of God, but the supervisor seemed to think he was Catholic and made repeated negative references to Catholics and Catholics’ strict morality.  This illustrates that erroneous perceptions can be just as harmful and just as legally actionable as “accurate harassment.”  Title VII covers harassment based on discriminatory “perceptions,” and in this case religion was still the basis of the harassment, whether the supervisor had the denomination right or not. 

Perceived as Jewish, plus harassing supervisors change story when caught on video.  In Cowher v. Carson & Roberts (N.J. Superior Ct. 2012), a non-Jewish truck driver’s religious harassment case, because he was perceived to be Jewish, was found valid.  He alleged a pattern of highly offensive anti-Semitic remarks, overt and highly profane slurs directed at him and anti-Jewish jeers in general.  He alleged that he protested to higher management and informed the harassers he was not Jewish.  They did not believe him, and the company took no action to stop the harassment; in fact, it got worse.  The two supervisors involved adamantly denied any such behavior.  They claimed the employee was fabricating the issue.  However, they had to change their stories when the trial discovery process revealed video/audio tapes of them engaging in the behavior.  They had to admit they were untruthful in their denials — they had engaged in the anti-Semitic behaviors. 

Fired minister had direct evidence of discrimination.  A retail employee had excellent ratings.  Then his manager discovered he was an Assembly of God minister in his off-work time.  The manager’s treatment immediately changed.  The manager stated that he had once been an Assembly of God member but “had bad experiences” and bad feelings.  The manager then began publicly referring to the employee as “pastor,” rather than by his name.  He began telling derogatory religious jokes and crude off-color jokes deliberately in the presence of the employee.  Then the manager began faulting the employee’s performance and fired him.  The court found direct evidence of discrimination.  Not only were the manager’s comments religiously hostile, but the employee was singled out for discipline and discharge for performance, while others who had even more errors and worse performance were retained.  Calame v. Aarons, Inc. (S.D. Ill., 2014). 

“Church boy” comments lead to harassment case.  An assistant bank manager alleged that he was harassed and then fired due to his Baptist religious beliefs.  He declined his manager’s invitations to have drinks after work and did not go to the bank’s holiday party because of his beliefs against drinking alcohol.  The manager then made openly hostile comments about the employee’s religious and church activities.  There were numerous comments about “Church Boy,” “Choir Boy,” “Christ Boy” and “church boy don’t drink!”  The court found a sufficient frequency of the negative comments prior to the discharge to create a viable harassment case.  Knox v. Sun Trust Banks, Inc. (E.D. Tenn. 2010). 

Settlement conditions include permanent job ban and negative references for supervisor.  The EEOC settled a religion, race and national origin case.  The case alleged that the supervisor of a Muslim employee of East Indian origin repeatedly called him “terrorist, “Osama” and “Al Qaeda.”  The supervisor also used, and allowed other workers to use, racial slurs toward African American and Hispanic workers.  The Muslim worker complained, to no avail, and was fired after he complained.  The settlement provided $123,000 to the affected workers.  It also provided that the supervisor will be barred from employment by the company and will never receive a positive reference for any other jobs.  The EEOC will monitor the company for two years.  EEOC v. Pace Services LP (S.D. Texas 2010).    

Worker loses unreasonable stand on “Jew boy” commentAn employee had an extreme and unreasonable reaction to minor discipline and filed multiple causes of action.  He was given a simple written warning for referring to a co-worker as “Jew boy.”  He grieved the warning.  The union arranged to have the warning withdrawn if the worker would simply acknowledge that the “remark was inappropriate.”  He refused, claiming that this was labeling him as a “racist” and was defamatory.  He then sued the union for unfair representation, and sued the union and the company for defamation, fraud, intentional infliction of emotional distress and racially discriminating against him.  His wife also sued for loss of consortium.  The court dismissed all causes of action for lack of any foundation, finding nothing improper in the actions of the union or company.  Courie v. Alcon Wheel & Forge Products and UAW (6th Cir. 2009). 

Grow A Thicker Skin And Get Used To It! A Jewish employee alleged that a co-worker made hundreds of ongoing hateful comments about Jews, “the Holocaust was deserved because Jews killed Jesus,” “Hitler was right,” “Jews carry disease,” “Jew Boy,” “Christ killer” and worse.  The co-worker also reportedly engaged in grabbing private parts and other physical behavior which left bruises.  The employee complained to management, but was told to “grow a thicker skin” and “get used to it.”  He complained again this time to Human Resources.  HR only advised the Department Manager to give a generic talk to employees about “co-workers respecting each other.”  The Jewish employee was instructed to stop wearing his Star of David necklace around the abusive co-worker because “it was like waving a red flag in front of a bull.”  The behavior continued unabated.  A year later the employee went to top management.  Then an investigation was ordered.  The abusive co-worker was given a verbal warning, but continued in an even worse fashion.  The Jewish employee resigned due to the ongoing, unabated harassment, telling the company that he “could not take it anymore.”  Then a second investigation was done, and the abusive co-worker was fired.  The Jewish employee then requested reinstatement, since the environment was now changed.  The company refused, since he had quit.  He filed suit.  The court found ample evidence of harassment and “constructive discharge” and of retaliation (refusal to reinstate) for having made the complaints.  Somers v. Express Scripts Holdings (S.D. Ind., 2017). 

Pervasive harassment of company’s only Muslim employee.  A Muslim employee was hired right after the 9/11 terrorist attacks.  It appears that people in the workplace decided to vent all of their anger over the attacks on him.  He was called numerous offensive names based upon his Arab origin and Muslim religion, and subjected to ongoing pranks and hostile comments.  The evidence also showed that when the employee complained to management, he was told, “don’t take things so seriously,” “maintain a positive attitude” and “let it roll off.”  Management also told him that he shouldn’t be “so paranoid,” and he was accused of “trying to build a case” against the company.  The court found a “constant and repetitive abuse founded upon misperceptions that all Muslims possess hostile designs against the United States, that all Muslims support jihad, that all Muslims were sympathetic to the 9/11 attack and that all Muslims are proponents of radical Islam.”  The company failed to take action to counter these stereotypes and stop the harassment.  EEOC v. Sunbelt Rentals, Inc. (4th Cir. 2008).

“Harassment with prayer” — supervisor had no religious right to violate harassment policy.  A supervisor was fired for violating the company anti-harassment policy regarding sexual orientation.  In evaluations of a lesbian employee, the supervisor commented that lesbianism was a sin, and the supervisor would pray over the employee regarding sexual orientation.  When informed that this behavior violated the company’s anti-harassment policy, the supervisor stated, “sometimes there is a higher calling than company policy.”  The company fired the supervisor, and she filed a suit for religious discrimination.  The court found that the behavior was in violation of company policy; the company policy was reasonable and in conformance with law; there is no duty to accommodate violation of legally mandated policy; and no other supervisor who overtly violated the policy had been treated more leniently.  Bodett v. Cox Com, Inc. (9th Cir. 2004). 

No right to use position to proselytize.  A county social service department was justified in firing an employee who insisted that his Christian religion required him to share his faith with clients.  He kept religious signs and symbols open to view by clients in his office and initiated prayer with clients.  He refused the reasonable accommodation of being allowed to keep the religious symbols more discretely and refused to stop expressing his faith to clients.  The court balanced the employee’s First Amendment religious rights against violation of the Establishment Clause’s prohibition against promoting religion in one’s official public role.  Berry v. Dept. of Soc. Services of Tehama County (9th Cir. 2006). 

Religious comments to patients is not protected.  The appeals court upheld dismissal of the religious discrimination case of a nurse who was fired for making religious commentary to patients.  The nurse’s behavior included referring patients to priests, “injecting Catholic dogma” into patient interaction and making comments on Satan and the “powers of darkness” to patients and co-workers.  Several patients objected, including complaints that the nurse’s behavior was “harassing” and “scary.”  The nurse persisted in her behavior after receiving warning.  The court held that she had no religious right to inflict her views on others.  Morales v. McKesson Health Solutions (10th Cir. 2005). 

No right to discuss personal beliefs with customers.  A bus driver was fired for failing to stop discussing his creed-based “Martian theories” with riders.  He also handed out cards with his “Unnatural Occurrences” web site address, which showed photos that claimed to support the theory of an extraterrestrial presence.  Riders complained, stating that the bus driver’s discussions were “disturbing” to them.  The driver’s termination was upheld in arbitration even though he was “polite and pleasant” when proselytizing passengers on the subject of Martians.  In re Inter-Urban Transit Partnership (2005).  

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.

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