Coexist?

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Coexist?

• Current Religious Discrimination Issues
• Karen K. Fitzgerald
• karen_at_klbf.com
• www.klbf.com
• 214.265.7400

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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.

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Research 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.

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4 typical claims

• Disparate treatment
• Harassment
• Failure to Accommodate
• Retaliation

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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

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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).

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Harassment

• Subjecting a person to harassment because of his
  or her religious belief or practice---or lack
  thereof.

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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.

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Refusal 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

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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,
  422-23 (Tex. App.---Houston 14th Dist. 2000, no
  pet.).

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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)

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• 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.

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Examples of Religious Observances or Practices

• Attending church or worship services.
• Praying.
• Wearing religious garb or symbols.
• Displaying religious objects.
• Following prescribed dietary rules.

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• Note Determining whether a practice is
  religious turns on the employees
  motivation----not the nature of the activity.

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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.

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• 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.

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Sincerely Held

• The requirement that an employer accommodate
  religious beliefs only applies to those
  religious beliefs that are sincerely held.

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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.

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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.

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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.

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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.

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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.

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• 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).

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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.

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• 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.

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• 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.

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• 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.

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• 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.

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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).

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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

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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.

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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.

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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.

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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.

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• 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)

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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.

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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

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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

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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.

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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
  employees claim that this is a belief or
  practice that is religious and sincerely held.

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• 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.

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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.

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• 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.

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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.

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Relevant 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

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• 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.

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• 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.

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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.

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• 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.

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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.

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• 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.

52
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 (1100 p.m. to 7 a.m.)
  when necessary.

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• 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.

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• 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.

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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

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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.

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• 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.

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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.

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• 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.

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• 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.

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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 employees sincerely held
  religious beliefs, the employee may ask for an
  exception to the dress or grooming policy as a
  reasonable accommodation.

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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.

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• 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.

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• 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.

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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.

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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 employers motion for summary judgment

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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

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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 employers business
• Nature of the expression
• Extent of the impact on customer relations

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• Brief anonymous interaction likely to be o.k.
• Individualized, specific proselytizing is likely
  to be more problematic.

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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.

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• 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.

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EEOC 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

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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

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• 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)

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• 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

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Conclusion

• Treat the beliefs of others with respect.
• Coexist.