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Coexist?

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Title: Coexist?


1
Coexist?
  • Current Religious Discrimination Issues
  • Karen K. Fitzgerald
  • karen_at_klbf.com
  • www.klbf.com
  • 214.265.7400

2
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.

3
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.

4
4 typical claims
  • Disparate treatment
  • Harassment
  • Failure to Accommodate
  • Retaliation

5
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

6
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).

7
Harassment
  • Subjecting a person to harassment because of his
    or her religious belief or practice---or lack
    thereof.

8
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.

9
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

10
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.).

11
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)

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.

13
Examples 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.

15
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.

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.

17
Sincerely Held
  • The requirement that an employer accommodate
    religious beliefs only applies to those
    religious beliefs that are sincerely held.

18
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.

19
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.

20
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.

21
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.

22
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.

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).

24
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.

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.

29
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).

30
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

31
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.

32
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.

33
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.

34
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.

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)

36
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.

37
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

38
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

39
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.

40
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.

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.

42
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.

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.

44
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.

45
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

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.

48
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.

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.

50
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.

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.

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.

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.

55
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

56
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.

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.

58
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.

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.

61
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.

62
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.

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.

65
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.

66
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

67
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

68
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

69
  • Brief anonymous interaction likely to be o.k.
  • Individualized, specific proselytizing is likely
    to be more problematic.

70
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.

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.

72
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

73
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

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

76
Conclusion
  • Treat the beliefs of others with respect.
  • Coexist.
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