Title: Coexist
1Coexist?
- Current Religious Discrimination Issues
- Karen K. Fitzgerald
- karen_at_klbf.com
- www.klbf.com
- 214.265.7400
2Increase 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.
3Research Resources
- New EEOC Compliance Manual on Religious
Discrimination.
- Issued July 22, 2008.
- Available at www.eeoc.gov/policy/docs/religion.htm
l
- Rod Tanner, Religious Discrimination Law, 2007
Advanced Employment Law Course.
44 typical claims
- Disparate treatment
- Harassment
- Failure to Accommodate
- Retaliation
5Disparate 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
6Disparate 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).
7Harassment
- Subjecting a person to harassment because of his
or her religious belief or practice---or lack
thereof.
8Religious 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.
9Refusal to Accommodate
- Denial of an accommodation of an applicant's or
employees 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
10Refusal 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,
422-23 (Tex. App.---Houston 14th Dist. 2000, no
pet.).
11What 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)
12- 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.
13Examples of Religious Observances or Practices
- Attending church or worship services.
- Praying.
- Wearing religious garb or symbols.
- Displaying religious objects.
- Following prescribed dietary rules.
14- Note Determining whether a practice is
religious turns on the employees
motivation----not the nature of the activity.
15Example
- 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.
16- 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.
17Sincerely Held
- The requirement that an employer accommodate
religious beliefs only applies to those
religious beliefs that are sincerely held.
18Factors 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.
19Statutory 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.
20Limits 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.
21Ministerial 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.
22What 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.
23- 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).
24Recent 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.
25- 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.
26- Judge McBryde granted the Seminarys motion for
summary judgment.
- He noted that if a claim challenges a religious
institutions 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.
27- 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.
28- 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 Amendments
religious clauses.
29Who 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).
30Types 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
31Bona 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.
32Successful 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.
33Religious 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.
34Key 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.
35- 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)
36Reasonable 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.
37Source 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
38Common 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
39The 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.
40Need 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
employees claim that this is a belief or
practice that is religious and sincerely held.
41- 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 employees belief or practice.
42Reasonable 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.
43- 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.
44Undue 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.
45Relevant Factors
- Type of workplace
- Nature of the employees 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
46- 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.
47- 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.
48Examples
- 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.
49- 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 employees share of
potentially hazardous or burdensome work.
50Seniority 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.
51- 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.
52Leonce 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 (1100 p.m. to 7 a.m.)
when necessary.
53- 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 employers obligation to accord a
reasonable accommodation if the reasonable
accommodation did not create a hardship on
employer.
54- 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 Leonces religious imperative
was ongoing and permanent.
- Court felt there was no way to know that Leonces
would always be able to find a volunteer to swap
shifts with him when needed.
55Common 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
56Recent 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.
57- 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.
58Mass 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.
59- 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.
60- Attempts to accommodate can create cultural
tensions.
- Management at the JBS plant had agreed to move an
815 p.m. break to 745 p.m.
- The Latino workers then protested.
- The break time was changed back to 815 p.m. and
when the Somali workers walked off the job in
protest, they were fired.
61Modification 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 employees sincerely held
religious beliefs, the employee may ask for an
exception to the dress or grooming policy as a
reasonable accommodation.
62Examples 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.
63- Absent an undue hardship, an employer may be
liable for religious discrimination if the
employer fails to accommodate the employees
religious dress or grooming practices.
64- 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.
65Example
- 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.
66Rangel 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 employers motion for summary judgment
67Proselytizing 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
68Religious 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 employers business
- Nature of the expression
- Extent of the impact on customer relations
69- Brief anonymous interaction likely to be o.k.
- Individualized, specific proselytizing is likely
to be more problematic.
70National 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.
71- 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.
72EEOC Fact Sheets on Religion and National Origin
Discrimination
- http//www.eeoc.gov/facts/fs-relig_ethnic.html
- http//www.eeoc.gov/facts/backlash-employee.html
- http//www.eeoc.gov/origin/index.html
73What 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
74- 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 Intl Sec. Serv., 390 F.3d 760
(3d Cir. 2004)
75- 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
76Conclusion
- Treat the beliefs of others with respect.
- Coexist.