• Current Religious Discrimination Issues
Karen K. Fitzgerald
[email protected]
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
• 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
– 42 USC § 2000e-2
– Texas Labor Code § 21.051
Disparate Treatment Prima Facie
• Plaintiff was a member of an identifiable
Plaintiff was qualified for the position;
Plaintiff suffered an adverse employment
decision; and
The adverse employment decision was
differentially applied to plaintiff because of
– See Rubenstein v. Administrators of Tulane Educ.
Fund, 218 F.3d 392 (5th Cir. 2000).
• Subjecting a person to harassment
because of his or her religious belief or
practice---or lack thereof.
Religious Harassment Prima Facie
• 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
– 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
– 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
• 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
• 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
Statutory Exception to Covered
• Religious Organizations are excluded from
• 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
– 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
• 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
• 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
– 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,
• This prohibition stems from the First Amendment’s religious
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
• 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
• 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
• Note: Harassment can be based on
religion even if religion is NOT expressly
• 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
– This obligation only kicks in once the employer is on
notice of the need and request for accommodation.
Source of Duty to Reasonably
• 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
• 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
– 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
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
• 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.
• 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
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
• 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
• 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
• Modification of workplace practice, policies
and/or procedures
Recent Issues in Accommodations
• 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
• 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
– 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
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
• 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.
• 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
• 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
• 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
• Individualized, specific proselytizing is
likely to be more problematic.
National Origin Discrimination
• Many religious discrimination cases also
contain national origin discrimination
– 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
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
– 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
• 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
– Employers also need to be sensitive to this
and perform adequate training
Treat the beliefs of
others with respect.

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