Coexist? • Current Religious Discrimination Issues Karen K. Fitzgerald [email protected] www.klbf.com 214.265.7400 Increase in Claims • No surprise that religious discrimination claims are increasing. • 2,127 Charges in FY 2001 at EEOC. • 2,880 Charges in FY 2007. • These charges are approximately 3.5% of all EEOC charges filed. Research Resources • New EEOC Compliance Manual on Religious Discrimination. – Issued July 22, 2008. – Available at www.eeoc.gov/policy/docs/religion.html • Rod Tanner, Religious Discrimination Law, 2007 Advanced Employment Law Course. 4 typical claims • Disparate treatment • Harassment • Failure to Accommodate • Retaliation Disparate Treatment • Treating applicants or employees differently based on their religious belief--or lack thereof---in regard to any aspect of employment. – 42 USC § 2000e-2 – Texas Labor Code § 21.051 Disparate Treatment Prima Facie Case • Plaintiff was a member of an identifiable • • • religion; Plaintiff was qualified for the position; Plaintiff suffered an adverse employment decision; and The adverse employment decision was differentially applied to plaintiff because of religion. – See Rubenstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000). Harassment • Subjecting a person to harassment because of his or her religious belief or practice---or lack thereof. Religious Harassment Prima Facie Case • Employee must show harassment was: – (1) based on religion; – (2) unwelcome; – (3) sufficiently severe or pervasive to alter the conditions of employment by creating an intimidating, hostile or offensive work environment; and – (4) that there is a basis for employer liability. Refusal to Accommodate • Denial of an accommodation of an applicant's or employee’s sincerely held religious belief or practice (or lack thereof) if the accommodation will not impose an undue hardship on the conduct of the business. – 42 USC § 2000e(j) – Texas Labor Code §21.108 Refusal to Accommodate Prima Facie Case • Employee had a sincerely held religious belief • • that conflicts with an employment requirement; Employee informed Employer of conflict; and Employee was discharged for failing to comply with the conflicting requirement. – Weber v. Roadway Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000). – Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 42223 (Tex. App.---Houston [14th Dist.] 2000, no pet.). What is Covered • Religion is defined very broadly under Title VII. – It includes all aspects of religious observance and practice as well as belief. – It includes not just traditional organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect. – 42 USC § 2000e(j) • Religious beliefs generally concern ultimate ideas about “life, purpose and death.” • Religious beliefs do not include social, political, or economic philosophies or mere personal preferences. Examples of Religious Observances or Practices • Attending church or worship services. • Praying. • Wearing religious garb or symbols. • Displaying religious objects. • Following prescribed dietary rules. • Note: Determining whether a practice is religious turns on the employee’s motivation----not the nature of the activity. Example • For a Seventh Day Adventist, following a vegetarian diet may be a religious observance or practice. • For other individuals, following a vegetarian diet is merely a matter of personal preference. • Thus, determining whether a practice is religious is done on a case by case basis. – Problematic for employers, – The lack of bright line rules always make things challenging for employers. “Sincerely Held” The requirement that an employer accommodate religious beliefs only applies to those religious beliefs that are “sincerely held.” Factors to Determine whether Belief is Sincerely Held • Whether the employee has behaved in a manner • • • inconsistent with the professed belief; Whether the accommodation sought is a particularly desirable benefit likely to be sought for secular reasons; The timing of the request; and Any other reason the employer has to believe that the request is not sought for religious reasons. Statutory Exception to Covered Entities • Religious Organizations are excluded from coverage. • 42 USC § 2000e-1(a) and Texas Labor Code § 21.109. – These sections allows religious organizations to give employment preference to members of their own religion. Limits to the Exception • This exception only allows religious organizations to prefer to employ persons who share their religion. • It does NOT allow religious organizations to otherwise discriminate in employment decisions. – Unless the ministerial exception applies. Ministerial Exception • Non-statutory exception to the protections against religious discrimination. • Premise is based on constitutional First Amendment considerations of the separation of church and state under the free exercise and establishment clauses. What is the ministerial exception? • This exception prevents clergy members from bringing claims of discrimination under federal discrimination laws. • The theory is that governmental regulation of church administration would be an impermissible entanglement of church and state. • Leading Fifth Circuit case on this exception is McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972). • Good discussion of this issue in Elvig v. Calvin Presbyterian Church, 397 F.3d 790 (9th Cir. 2005). Recent Local Case of Interest • Klouda v. Southwestern Baptist Theological Seminary, 2008 WL 833493 (N. D. Tex. 2008) – Sherri Klouda was Assistant Professor of Old Testament languages. – Her hiring was extremely controversial. – She was only hired after a compromise agreement was reached that limited her employment to teaching Hebrew and Aramaic grammar, syntax, and exegesis. • She sued for gender discrimination after the • Dean that her that her contract was not renewed because she was a woman and a “mistake that the trustees needed to fix.” The Chair of the Trustees was quoted in the local newspaper as saying that hiring a woman to teach men was a “momentary lax of the parameters.” • Judge McBryde granted the Seminary’s motion for summary judgment. – He noted that if a claim challenges a religious institution’s employment decision, an important inquiry is whether the employee is a member of the clergy or otherwise serves a ministerial function. – If so, the ministerial exception applies. • Judge McBryde concluded that the seminary was a “church” and that Klouda was a “minister” as contemplated by the ministerial exception. – Klouda taught Hebrew and Aramaic grammar, syntax and exegesis. – The court concluded that her teachings were designed to assist and prepare the students for ministry. • Judge McBryde also concluded that the decision to terminate Klouda was also ecclesiastical in nature. – Thus, it was also prohibited under the ecclesiastical abstention doctrine as well. – The ecclesiastical abstention doctrine prohibits courts from involving themselves in ecclesiastical matters, such as theological controversies, church discipline, etc. • This prohibition stems from the First Amendment’s religious clauses. Who Falls within scope of ministerial exception? • “Clergy” • However, courts have interpreted clergy quite broadly and ministerial exception has been applied to: – – – – Music Minister Choir Director Communications Director Mashgiach (person responsible to see that Jewish dietary laws are followed). Types of Employment Decisions that are Impacted by this Protection • Recruitment, Hiring and Promotion • Discipline and Discharge • Compensation and other terms, conditions or privileges of employment Bona Fide Occupational Qualification • An employer may hire and employ employees on the basis of religion if religion is a “bona fide occupational qualification” reasonably necessary to the normal operation of the particular business or enterprise. – 42 USC 2000e-2(e)(1) • Extremely narrow defense. Successful BFOQ Case • Kern v. Dynalectron Corp., 577 F.Supp. 1196 • • (N.D.Tex. 1983). Requirement that pilot convert to Islam was not based on preference of contractor working in Saudi Arabia. Requirement was based on fact that non-Muslim employees caught flying into Mecca would be beheaded under Saudi law. Religious Harassment • Quid Pro Quo Harassment – Employee is required or coerced to abandon, alter or adopt a religious practice as a condition of employment. • Hostile Environment – Employee is subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the employee reasonably finds the work environment hostile or abusive. Key Points for Employers to keep in Mind • Note: Harassment can be based on religion even if religion is NOT expressly mentioned. • The employee must show that the conduct is unwelcome. – This is an important point in situations involving proselytizing employees. – Many times an employee will be uncomfortable with a proselytizing co-worker. • Note: an employer never has to accommodate the expression of religious belief in the workplace where such an accommodation could potentially constitute harassment of co-workers. – (See EEOC Compliance Manual Examples at pages 17-23) Reasonable Accommodation of Sincerely Held Religious Beliefs • Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. – This obligation only kicks in once the employer is on notice of the need and request for accommodation. Source of Duty to Reasonably Accommodate • Title VII, 42 USC § 2000e(j) • Texas Labor Code § 21.108 • Texas Labor Code § 52.001(c) – This section applies to retail employers Common Types of Accommodations Requests • Work Schedules • Dress and Grooming Issues • Religious Expression or practice at work – Prayer Breaks – Wearing or displaying a religious symbol on uniform or in office The Request for Accommodation • The Employee seeking the accommodation must make the employer aware of: – (1) the need for accommodation and – (2) that it is being requested due to a conflict between religion and work. • The employee must explain the religious nature of the belief or practice at issue. Need to Discuss the Request • Both the employer and the employee play a role • • in resolving an accommodation request. There is a duty to cooperate. If the request does not contain sufficient information, the employer may make a limited inquiry into the facts and circumstances of the employee’s claim that this is a belief or practice that is religious and sincerely held. • Caution: employers need to remember that idiosyncratic beliefs can be a sincerely held religious belief. • Verification of the sincerely held religious belief does not need to come from a church. – Instead, it can come from others who are aware of the employee’s belief or practice. Reasonable Accommodation • An employer never has to provide an accommodation that would pose an “undue hardship.” • Determination of reasonable accommodation must be made on a case by case basis. • If there is more than one accommodation that is • reasonable, the employer is not required to provide the accommodation favored by the employee. An employee is not required to accept a pay reduction or loss of some other benefit if there is a reasonable accommodation that does not require the loss of an employment benefit. Undue Hardship • An employer can show undue hardship if the accommodation would impose more than “de minimis cost.” – Note: This standard is much lower than the ADA undue hardship standard, which requires a showing that the accommodation would cause significant difficulty or expense. Relevant Factors • Type of workplace • Nature of the employee’s duties • Identifiable cost of the accommodation in relation to the size and operating costs of the employer • Number of employees who will need a particular accommodation • The employer must prove how much cost or disruption would be imposed by the requested accommodation. – It cannot be a hypothetical cost or disruption. – It must be an actual cost or impact. • It must be more than just “de minimis cost.” • However, some Fifth Circuit cases seem to rely • on a lower standard. Some hold that the “mere possibility” of an undue hardship can be sufficient to reject a reasonable accommodation. – Jones v. United Parcel Service, 2008 WL 2627675 (N.D. Tex. 2008), citing Bruff v. North Mississippi Health Services, Inc., 244 F.3d 495, 501, n. 14 (5th Cir. 2001) • Case on appeal now. Examples • Not More than a De Minimis Cost – Payment of administrative costs to rearrange schedules or recording substitutions. – Payment of infrequent or temporary payment of premium wages. • More than a De Minimis Cost – Regular payment of premium wages required. – Hiring of additional employees required. • Courts have found undue hardship in the following contexts: – Accommodation diminishes job efficiency. – Accommodation infringes on other employees job rights or benefits. – Accommodation impairs workplace safety or causes co-workers to carry the employee’s share of potentially hazardous or burdensome work. Seniority Systems and Collective Bargaining Agreements • A requested accommodation may pose an undue hardship if it deprives another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement. • Courts are quite clear: – An employer is NOT required to deviate from a seniority system in order to give an employee shift preference for religious reasons. – However, it is NOT an undue hardship to allow voluntary swaps and substitutes to the extent that such agreements do not violate a seniority system or collective bargaining agreement. Leonce v. Callahan, 2008 WL 58892 (N.D. Tex. 2008). • Leonce fired by Wichita County Sheriff Dept. when he advised Sheriff that he could not work after sundown on Friday due to his Seventh Day Adventist beliefs. – Leonce offered reasonable accommodation of working 1st shift on Friday (7 a.m. to 3 p.m.) and 3rd shift on Saturday (11:00 p.m. to 7 a.m.) when necessary. • He was terminated because Sheriff department • had seniority system allowing senior officers priority in choosing their desired days off. The court noted that the seniority system did not trump the employer’s obligation to accord a reasonable accommodation if the reasonable accommodation did not create a hardship on employer. • Court concluded that no reasonable accommodation could be made that would not impose an undue hardship on the County. – The court rejects voluntary shift swapping as an alternative because Leonce’s religious imperative was “ongoing and permanent.” – Court felt there was no way to know that Leonce’s would always be able to find a volunteer to swap shifts with him when needed. Common Accommodations • Flexible scheduling • Voluntary swaps or substitutes of shifts and assignments • Lateral transfer and/or change of job assignment • Modification of workplace practice, policies and/or procedures Recent Issues in Accommodations Requests • Many recent articles dealing with religious accommodation requests. • Recently, Tyson Foods agreed to let its work force claim Eid al-Fitr as a paid holiday instead of Labor Day. – This holiday celebrates the end of the Muslim holy month of Ramadan. – Non-Muslims protested that the policy was un-American. • Tyson solved the problem by reinstating Labor Day. • Tyson then switched a paid birthday to a personal day that could be used for religious observances. Mass Firings at meat packing plans • Last week, the Wall Street Journal ran an article featuring the firing of 200 Muslim Somali workers at meatpacking plans. • The workers had walked off the job in protests over prayer disputes. • Workers had clashed with management over praying at sunset. – This falls within the second shift. – Since the workers are on a rapidly moving assembly line, allowing short prayer breaks would disrupt the line. – Shutting the assembly line down for an additional 15 minute break is too costly. – They would always be “chasing the sun” since sunset comes at different times. • Attempts to accommodate can create cultural tensions. – Management at the JBS plant had agreed to move an 8:15 p.m. break to 7:45 p.m. – The Latino workers then protested. – The break time was changed back to 8:15 p.m. and when the Somali workers walked off the job in protest, they were fired. Modification of Workplace practices, policies and procedures • This area is where Dress and Grooming standards come into play. • If an employer has a dress or grooming policy that conflicts with an employee’s sincerely held religious beliefs, the employee may ask for an exception to the dress or grooming policy as a reasonable accommodation. Examples of Exceptions to Dress or Grooming Standards • Allowing an employee to wear a head scarf or a turban. • Allowing an employee not to shave his beard or cut his or her hair. • Allowing an employee to display visible tattoos or piercing. • Absent an undue hardship, an employer may be liable for religious discrimination if the employer fails to accommodate the employee’s religious dress or grooming practices. • Note: It can be an undue hardship for an employer to accommodate a religious dress or grooming practice that conflicts with the public image that the employer wishes to convey to customers. Example • Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004). • It was an undue hardship for Costco to grant an exemption that would allow its cashier to have facial piercings because it detracts from the “neat, clean and professional image” that Costco cultivates. Rangel v. Red Robin, 2005 WL 2090677 (W.D. Wash. 2005) • It was not an undue hardship for Red Robin to employ a worker with wrist tattoos. – Employee was member of Kemetic religion and received tattoos of religious inscriptions on his wrist. – Under his religious beliefs, he cannot intentionally conceal the tattoos. • Case settled after the trial court refused to grant the employer’s motion for summary judgment Proselytizing or Religious Expression • Case by Case analysis. • Employer should consider potential disruption, if any, that would result by permitting expression of religious belief. – Factors: • Effect the expression has on co-workers • Effect on customers • Effect on business operations Religious Expression directed at Customers • It is a complicated issue as to whether allowing religious expression towards customers creates an undue hardship. – Again, a case by case analysis, considering: • Nature of the employer’s business • Nature of the expression • Extent of the impact on customer relations • Brief anonymous interaction likely to be o.k. • Individualized, specific proselytizing is likely to be more problematic. National Origin Discrimination • Many religious discrimination cases also contain national origin discrimination implications. – The same set of facts may state a claim of national origin discrimination and religious discrimination when a particular religion is strongly associated, or perceived to be associated, with a specific national origin. • Post 9/11, this has been a particular problem for Muslims or Arabs. – The EEOC issued a statement after 9/11 directed to this issue. – The EEOC noted that employers and unions needed to be particularly sensitive to potential discrimination and harassment against those who are Muslim, Arab, Afghani, Middle Eastern, or South Asian. EEOC Fact Sheets on Religion and National Origin Discrimination • http://www.eeoc.gov/facts/fs- relig_ethnic.html • http://www.eeoc.gov/facts/backlashemployee.html • http://www.eeoc.gov/origin/index.html What is national origin? • “National Origin” generally refers to the country where a person was born, or more broadly, the country from which his or her ancestors came. – Espinoza v. Farah Mgf. Co, Inc., 414 U.S. 86 (1973). – Texas Labor Code § 21.110 • National Origin can include: – Jews – Serbs – Cajuns – Others based upon the unique historical, political and/or social circumstances of a given region • Storey v. Burns Int’l Sec. Serv., 390 F.3d 760 (3d Cir. 2004) • Many religious discrimination cases are also going to include national origin discrimination issues – The EEOC is instructing its case officers to be sensitive to these issues and investigate these issues – Employers also need to be sensitive to this and perform adequate training Conclusion Treat the beliefs of others with respect. Coexist.