Negotiating religious protections in the real world of HR

1. July 12, 2016 | Mark W. Bakker
Coexist-ing in the Workplace
Negotiating religious protections in the real world of HR

2. CLASH OF CULTURES
“What’s unfolding today is not a
drama in which secularist
progressivism is slowly but surely
eclipsing antiquated religious faith
at last, but a contest of competing
creeds, and competing first
principles. Only when we
acknowledge that truth can we see
that there is only one way out of
this cantankerous, riven place.”

3. RELIGION AND WORK IN THE HEADLINES

7. Legal
Sources
Various State
Laws
Title VII
Constitution
PROTECTIONS FOR RELIGIOUS BELIEF/ACTION

8. CONSTITUTIONAL
PROTECTION

9. AMONG THE BILL OF RIGHTS…

10. FIRST AMENDMENT PROTECTION
GOVERNMENT
EMPLOYERS
GOVERNMENT
EMPLOYEES
PRIVATE SECTOR
EMPLOYERS
PRIVATE SECTOR
EMPLOYEES?

11. EEOC/TITLE VII

12. EEOC & RELIGIOUS DISCRIMINATION
EEOC charges alleging
religious discrimination
in the workplace have
more than doubled in
the past decade.

13. 2010 -- 24
2011 -- 15
2012 -- 9
2013 -- 12
2014 -- 8
2015 -- 7
THE EEOC FILED
75 LAWSUITS
INVOLVING CLAIMS
OF RELIGIOUS
DISCRIMINATION
UNDER TITLE VII
FY 2010-2015

14. EEOC LAWSUITS
UP TO 15% OF ALL
LAWSUITS FILED BY
EEOC INVOLVE
RELIGIOUS
DISCRIMINATION

15. RELIEF RECOVERED BY EEOC 2010-15

16. WIDESPREAD FEELINGS OF DISCRIMINATION
http://religiousfreedomandbusiness.org/2/post/2014/08/workplace-religious-discrimination-encountered-by-1-in-3.html

17. EEOC RELIGIOUS DISCRIMINATION PRESS RELEASES
JULY 2015 TO JUNE 2016
• EEOC Sues Rotten Ralph’s Restaurant for Religious Discrimination
https://www1.eeoc.gov/eeoc/newsroom/release/7-9-15.cfm
• EEOC Sues UPS for Religious Discrimination
https://www1.eeoc.gov/eeoc/newsroom/release/7-15-15.cfm
• Dunkin’ Donuts Franchisee Will Pay $22,000 to Settle EEOC Religious
Discrimination Lawsuit
https://www1.eeoc.gov/eeoc/newsroom/release/7-15-15b.cfm
• Abercrombie Resolves Religious Discrimination Case Following Supreme Court
Ruling in Favor of EEOC
https://www1.eeoc.gov/eeoc/newsroom/release/7-28-15.cfm
• National Federation of the Blind Sued for Religious Discrimination by EEOC
https://www1.eeoc.gov/eeoc/newsroom/release/8-21-15c.cfm
• Court Awards Over Half Million Dollars Against Consol Energy/Consolidation
Coal In EEOC Religious Discrimination Lawsuit
https://www1.eeoc.gov/eeoc/newsroom/release/8-27-15a.cfm
• National Tire and Battery to Pay $22,500 to Settle EEOC National Origin /
Religious Harassment Suit
https://www1.eeoc.gov/eeoc/newsroom/release/10-20-15.cfm
• Jury Awards $240,000 to Muslim Truck Drivers In EEOC Religious
Discrimination Suit
https://www1.eeoc.gov/eeoc/newsroom/release/10-22-15b.cfm
• National Federation for the Blind Will Pay $25,000 to Settle EEOC Religious
Accommodation Lawsuit
https://www1.eeoc.gov/eeoc/newsroom/release/2-8-16.cfm
• Mission Hospital Sued By EEOC For Religious Discrimination
https://www1.eeoc.gov/eeoc/newsroom/release/4-28-16.cfm
• EEOC Sues Baystate Medical Center for Religious Discrimination &
Retaliation
https://www1.eeoc.gov/eeoc/newsroom/release/6-2-16b.cfm
• EEOC Sues Greenville Ready Mix Concrete for Religious Discrimination
https://www1.eeoc.gov/eeoc/newsroom/release/6-7-16.cfm

18. VIOLATIONS HAVE INVOLVED A
VARIETY OF FACT PATTERNS
– Refusing to hire/firing workers after learning their
religion
– Discharging workers who take leave for religious-related
events (e.g., observing the Sabbath)
– Failing to accommodate religious-related garb choices
– Retaliating against employees who requested a reasonable
accommodation or complained about religious
discrimination.

19. TITLE VII REQUIREMENTS: PART I
Provide a workplace free
from:
• religious discrimination
• harassment
• retaliation
Except: religious organizations

20. NO DISCRIMINATION IN
ALL ASPECTS OF EMPLOYMENT
• Recruit
• Hire
• Promote
• Terms & Conditions
• Discipline
• Termination

21. EXTERNAL PRESSURES
ALSO DISCRIMINATORY
• Customer preference
• Security requirements
• BFOQ rare

22. • Don’t inquire about religious status/preference
• Same interview questions related to particular job
• Accurately document
• Address customer bias

23. HARASSMENT
• Religious Coercion
• Hostile Work Environment
–Religion
–Unwelcome
–Severe/pervasive

24. EXAMPLE OF HARASSMENT
EEOC v Autozone (D. Mass. 2012)
• Sikh employee
• Requested accommodation of wearing
turban/religious bracelet refused by company
• Asked if he was terrorist, referred to him as “Bin
Laden,” made lots of jokes

25. • Include religion in anti-harassment policy
• Address complaints
• Intervene proactively
• Avoid supervisor coercion

26. TITLE VII REQUIREMENTS: PART II
Provide reasonable
accommodation for
• employee’s seriously
held religious beliefs
• unless accommodation
would impose an undue
hardship

27. WHAT IS RELIGION?
• “Religion” broadly defined
• Includes Sincere Beliefs…
• Theistic/nontheistic
• Unique/popular
• Incomprehensible?
• Moral & ethical beliefs?

28. … AND OBSERVATIONS/PRACTICE
– Worship
– Garb
– symbols
– Diet
– Expression
– Refraining from certain
activities

29. WHICH BELIEFS & PRACTICES?
Only sincerely held
religious beliefs and
practices need to be
accommodated

30. INQUIRY INTO SINCERITY
• Assume sincerity
• Objective basis to
doubt? Ok to seek
other information
• Case-by-case inquiry

31. WHAT IS SINCERE?
• Sun Worshipping
Atheism
• Veganism
• Worship of
Marijuana
• KKK/Confederate
Flag

32. Religious
beliefs…
or lack thereof

33. WHAT IS ACCOMMODATION?
“A reasonable religious
accommodation is any
adjustment to the work
environment that will allow
the employee to comply with
his or her religious beliefs.”

34. SIMILAR TO ADA ACCOMMODATION
• Employee must make
employer aware
• No “magic words”
• Interactive dialogue
• Case-by-case determination
• Choose effective alt. accommodation
• Acquiescence not defense

35. UNDUE HARDSHIP …NOT LIKE ADA
• Would accommodation
impose “more than de
minimis cost”?
• Burden still on
employer

36. FACTORS FOR DEMINIMIS COST (DIRECT)
IDENTIFIABLE
COSTS
OPERATING COSTS
OF EMPLOYER
SIZE OF
EMPLOYER
# OF INDIVIDALS
WHO NEED
ACCOMMODATION

37. DE MINIMIS CALCULATION:
REARRANGING SCHEDULE
Admin
Cost
Temp
OT
De
Minimis
Admin
Cost
Regular
OT
Undue
hardship

38. WHAT COUNTS AS INDIRECT COSTS?
• Diminished efficiency in other
jobs
• Infringes other employees’ job
rights/benefits
• Impairs workplace safety
• Causes co-workers to carry
burdensome work
• Seniority systems and CBA
rights

39. ACCOMMODATION:
IGNORANCE IS NOT BLISS
• 2015 Supreme Court Case
• “Look Policy”
• Disparate impact

40. HYPOTHETICAL #1 (GARB)
• Corrections facility bans all head covering
• X asks to wear a fez at work on particular holy days
• Potential Claim?
• What if brother works at grocery store with same ban?
– Policy: all employees wear uniform clothing so that can be readily
indentified by customers
EEOC Compliance Manual Example 38
Notes: Mims (Rastafarian driver); Elegante (housekeeper hajib); ABM
Security (security officer)

41. HYPOTHETICAL #2 (BREAK SCHEDULE)
• Employer policy one 15-minute break in
morning and one 15-minute break in afternoon
• Janitor asks for prayer at 5 prescribed times/day
• Permissible?
EEOC Compliance Manual Example 40

42. HYPOTHETICAL #3 (SHIFT CHANGE)
• Company policy of equal weekend shifts for all e/ees
• Requires each employee to work 10 Sundays/year
• X wants to swap out with Y (Saturday/Sunday swap)
• Permissible?
• What if no volunteers? Involuntary swap?

43. HYPOTHETICAL #4 (CHANGE JOB TASKS)
• Pharmacist informs employer that she cannot
participate in distributing contraceptives
• What factors would come into play to
accommodate request?
– Size of department/coverage
– Lateral positions
• Note: must meet expectations re: customers

44. HYPOTHETICAL #5 (ALTERNATIVE ACCOMMODATION)
• Job requires availability for emergencies at any time
• Requests accommodation for Sabbath observance
• Assume undue hardship to stay in position
• Open position with lower pay and benefits
• Can you transfer?
EEOC Compliance Manual Example 45

45. HYPOTHETICAL #6 (USUAL REQUIREMENTS)
• Applicant says that he declined to provide social security
number on religious grounds
• Assuming sincerity of belief and practice, can company
refuse to hire?
Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999)
(not liable because federal law requires SSN and therefore request posed undue hardship)
• What about payment of union dues?

46. HYPOTHETICAL #7 (RELIGIOUS EXPRESSION)
• Roger works at guard station at front desk in lobby
• Susan is an architect in same building (private office)
• Both wants to put up religious poster (“Jesus Saves”)
• No customer or coworker complaints
• Employer says to take down poster
• Should allow accommodation?
EEOC Compliance Manual Example 49

47. HYPOTHETICAL #8 (RELIGIOUS EXPRESSION)
• Mandatory weekly staff meeting
• Meeting always begins with prayer?
• Must excuse employee on religious grounds?
– “close your ears” not OK
• On-site meditation class?
• Anti-discrimination training that includes sexual
orientation?

48. • Create Religious Accommodation Form
• Follow up ASAP when accommodation need known
• Review request
• Analyze undue hardship in good faith
• Train managers and supervisors
• Avoid assumptions & stereotypes
• Consider alternative accommodations
• Consider temporary accommodation while exploring

49. SC STATUTORY
PROTECTION

50. SC STATUTORY PROTECTION
• SC Code § 53-1-80/“Blue Laws”
– Time Off (retail) to attend Sunday worship services
• SC Code § 16-17-560
– Protection from “discharge”
– If employee expresses “political opinions” or
“exercise political rights and privileges guaranteed…
by the Constitution.”

51. THANK YOU
Wyche, P.A. @wychepa Wyche, P.A. wyche.com/atwork