ACCOMMODATING RELIGIONIN THE WORKPLACE

ACCOMMODATING RELIGIONIN THE WORKPLACE

April 3, 2014

Presented By:Renee C. Mattei Myers, Esquire

Eckert Seamans Cherin & Mellott, LLC213 Market Street – 8th Floor

Harrisburg, PA 17101(717) 237-7163

*No statements made in this seminar or in the written

materials/power point should be construed as legal advice

pertaining to specific factual situations.

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Laws Prohibiting Religious Discrimination

Laws Prohibiting Religious Discrimination

Title VII of the Civil Rights Act of 1964

State Anti Discrimination Laws(example: Pennsylvania Human

Relations Act; New Jersey Law Against Discrimination)

Local Ordinances

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Religious DiscriminationReligious Discrimination

Prohibited in all aspects of employment: Hiring Termination Pay Promotions Benefits Job assignments

Includes prohibition against harassment because of religion.

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Preventing DiscriminationPreventing Discrimination

Create Good Hiring Policies Establish Zero Tolerance Policy Against

Harassment and Discrimination Be Proactive/Train Employees Provide Accommodations Where

Appropriate Promptly Investigate Complaints Avoid Retaliation

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Good Hiring PoliciesGood Hiring Policies

Establish objective written criteria for evaluating applicants

Ask same questions of all applicantsBeware of questions unrelated to job

duties that have tendency to reveal religious beliefs/practices.

Train all employees involved in process!

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Preventing Harassment/Discrimination

Preventing Harassment/Discrimination

Anti-Discrimination/Anti-Harassment policy: Prohibition (zero-tolerance) Must be publicized to employees

(handbooks; postings) Training Clear and Accessible Complaint

Procedure Prohibition Against Retaliation

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Be ProactiveBe Proactive

TrainingTrain all employees on anti-

discrimination and anti-harassment policies.

Train managers and supervisorsHow to avoid claimsHow to respond to complaintsAvoid decisions based on stereotypesBe proactive in managing disputes.

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Religious AccommodationsReligious Accommodations

Employers are required to accommodate “sincerely held religious beliefs, practices or observance that conflict with work rules”

Undue Hardship (more than de minimis) * different standard than ADA accommodations.

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Sincerely Held Religious BeliefSincerely Held Religious Belief

If there is a bona-fide doubt as to religious sincerity—employer may make limited inquiry.

Factors:Inconsistent behaviorAccommodation requested desirable likely

to be sought for secular reasons (i.e. weekends off)

Timing of request makes it suspect

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Religious AccommodationsReligious Accommodations

Review requests individually; avoid stereotypes.

Don’t allow supervisors to make decisions about accommodations independently. Consistency in treatment.

Cooperation and flexibility

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Examples:Examples:

Schedule changes Change in job tasks Exception to dress/grooming rules Use of work facility for religious

observance Accommodating prayer, religious

expression

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Reasonable Religious ExpressionReasonable Religious Expression

Allow reasonable religious expression consistent with other types of personal expression to extent not disruptive or harassingExample: displaying personal items

at desk.

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Workplace ProselytizingWorkplace Proselytizing

Can become an issue if harassing to other employees.

Factors:PervasivenessImpact on coworkers and work

performanceCapacity to take steps to accommodate

both the proselytizing employee and aggrieved co-workers.

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Prayer GroupsPrayer Groups

May be permitted as long as there are not employment consequences to joining/non-joining.

Employees should not feel pressured to attend.

Should not be prohibited if employer allows access to lunchroom/conference rooms to other groups during non-work hours.

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Religious Posters or DisplaysReligious Posters or Displays

Employer not required to allow displays to the extent it may be perceived as an expression of the employer’s religious views.

Example:Small religious pictures at work area

vs. large religious display in common or public area (lunchroom or lobby).

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Religious DressReligious Dress

Claims for undue hardship upheld for legitimate safety reasons (prohibiting headscarf's in prisons or around machinery)

Personal appearance policy-public image rationale (facial piercings)

But Compare: dress code that exists purely to promote brand image.

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Undue HardshipUndue Hardship

Undue hardship for purposes of religious accommodation: more than de minimis cost or burden.

Examples:Infringe on rights of other employeesDiminish workplace safetyCost a significant amount of moneyReduce workplace efficiency

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Conducting Investigations of Claims of Religious Discrimination

Conducting Investigations of Claims of Religious Discrimination

Promptly investigate complaints. Take all complaints seriously.

At conclusion of investigation, take prompts and effective remedial action based on

outcome of investigation. Document investigation and outcome.

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Preventing RetaliationPreventing Retaliation

Implement policies and practices that require HR approval before adverse action taken against employee who has filed complaint.

Reduce risk of claims by clearly documenting business reasons for any post complaint discipline/action.

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Thank You!

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