Coexist?Coexist?

• Current Religious Discrimination Current Religious Discrimination IssuesIssues

Karen K. FitzgeraldKaren K. Fitzgerald

karen@klbf.comkaren@klbf.com

www.klbf.comwww.klbf.com

214.265.7400214.265.7400

Increase in ClaimsIncrease in Claims

• No surprise that religious No surprise that religious discrimination claims are increasing.discrimination claims are increasing.

• 2,127 Charges in FY 2001 at EEOC.2,127 Charges in FY 2001 at EEOC.

• 2,880 Charges in FY 2007.2,880 Charges in FY 2007.

• These charges are approximately These charges are approximately 3.5% of all EEOC charges filed.3.5% of all EEOC charges filed.

Research ResourcesResearch Resources

• New EEOC Compliance Manual on New EEOC Compliance Manual on Religious Discrimination.Religious Discrimination.– Issued July 22, 2008.Issued July 22, 2008.– Available at Available at

www.eeoc.gov/policy/docs/religion.htmlwww.eeoc.gov/policy/docs/religion.html

• Rod Tanner, Rod Tanner, Religious Discrimination Religious Discrimination LawLaw, 2007 Advanced Employment , 2007 Advanced Employment Law Course.Law Course.

4 typical claims4 typical claims

• Disparate treatmentDisparate treatment

• HarassmentHarassment

• Failure to AccommodateFailure to Accommodate

• RetaliationRetaliation

Disparate TreatmentDisparate Treatment

• Treating applicants or employees Treating applicants or employees differently based on their religious differently based on their religious belief---or lack thereof---in regard to belief---or lack thereof---in regard to any aspect of employment.any aspect of employment.– 42 USC 42 USC § 2000e-2§ 2000e-2– Texas Labor Code § 21.051Texas Labor Code § 21.051

Disparate Treatment Prima Disparate Treatment Prima Facie CaseFacie Case• Plaintiff was a member of an identifiable Plaintiff was a member of an identifiable

religion;religion;• Plaintiff was qualified for the position;Plaintiff was qualified for the position;• Plaintiff suffered an adverse employment Plaintiff suffered an adverse employment

decision; anddecision; and• The adverse employment decision was The adverse employment decision was

differentially applied to plaintiff because of differentially applied to plaintiff because of religion.religion.– See Rubenstein v. Administrators of Tulane See Rubenstein v. Administrators of Tulane

Educ. FundEduc. Fund, 218 F.3d 392 (5, 218 F.3d 392 (5thth Cir. 2000). Cir. 2000).

HarassmentHarassment

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

Religious Harassment Prima Religious Harassment Prima Facie CaseFacie Case

• Employee must show harassment was:Employee must show harassment was:– (1) based on religion;(1) based on religion;– (2) unwelcome;(2) unwelcome;– (3) sufficiently severe or pervasive to alter (3) sufficiently severe or pervasive to alter

the conditions of employment by creating the conditions of employment by creating an intimidating, hostile or offensive work an intimidating, hostile or offensive work environment; andenvironment; and

– (4) that there is a basis for employer (4) that there is a basis for employer liability.liability.

Refusal to AccommodateRefusal to Accommodate

• Denial of an accommodation of an Denial of an accommodation of an applicant's or employee’s sincerely applicant's or employee’s sincerely held religious belief or practice (or held religious belief or practice (or lack thereof) if the accommodation lack thereof) if the accommodation will not impose an undue hardship on will not impose an undue hardship on the conduct of the business.the conduct of the business.– 42 USC 42 USC § 2000e(j) § 2000e(j) – Texas Labor Code Texas Labor Code §21.108§21.108

Refusal to Accommodate Prima Refusal to Accommodate Prima Facie Case Facie Case

• Employee had a sincerely held religious belief Employee had a sincerely held religious belief that conflicts with an employment requirement;that conflicts with an employment requirement;

• Employee informed Employer of conflict; andEmployee informed Employer of conflict; and

• Employee was discharged for failing to comply Employee was discharged for failing to comply with the conflicting requirement.with the conflicting requirement.– Weber v. Roadway Express, Inc.Weber v. Roadway Express, Inc., 199 F.3d 270, 273 , 199 F.3d 270, 273

(5(5thth Cir. 2000). Cir. 2000).– Grant v. Joe Myers Toyota, Inc.Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 422-, 11 S.W.3d 419, 422-

23 (Tex. App.---Houston [1423 (Tex. App.---Houston [14thth Dist.] 2000, no pet.). Dist.] 2000, no pet.).

What is CoveredWhat is Covered

• Religion is defined very broadly under Religion is defined very broadly under Title VII.Title VII.– It includes all aspects of religious It includes all aspects of religious

observance and practice as well as belief.observance and practice as well as belief.– It includes not just traditional organized It includes not just traditional organized

religions, but also religious beliefs that religions, but also religious beliefs that are new, uncommon, not part of a formal are new, uncommon, not part of a formal church or sect.church or sect.

– 42 USC § 2000e(j)42 USC § 2000e(j)

• Religious beliefs generally concern Religious beliefs generally concern ultimate ideas about “life, purpose ultimate ideas about “life, purpose and death.”and death.”

• Religious beliefs do not include Religious beliefs do not include social, political, or economic social, political, or economic philosophies or mere personal philosophies or mere personal preferences.preferences.

Examples of Religious Examples of Religious Observances or PracticesObservances or Practices

• Attending church or worship services.Attending church or worship services.

• Praying.Praying.

• Wearing religious garb or symbols.Wearing religious garb or symbols.

• Displaying religious objects.Displaying religious objects.

• Following prescribed dietary rules.Following prescribed dietary rules.

• Note: Determining whether a Note: Determining whether a practice is religious turns on the practice is religious turns on the employee’s motivation----not the employee’s motivation----not the nature of the activity.nature of the activity.

ExampleExample

• For a Seventh Day Adventist, For a Seventh Day Adventist, following a vegetarian diet may be a following a vegetarian diet may be a religious observance or practice.religious observance or practice.

• For other individuals, following a For other individuals, following a vegetarian diet is merely a matter of vegetarian diet is merely a matter of personal preference.personal preference.

• Thus, determining whether a practice Thus, determining whether a practice is religious is done on a case by case is religious is done on a case by case basis.basis.– Problematic for employers,Problematic for employers,– The lack of bright line rules always make The lack of bright line rules always make

things challenging for employers.things challenging for employers.

““Sincerely Held”Sincerely Held”

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

Factors to Determine whether Factors to Determine whether Belief is Sincerely HeldBelief is Sincerely Held

• Whether the employee has behaved in a Whether the employee has behaved in a manner inconsistent with the professed manner inconsistent with the professed belief;belief;

• Whether the accommodation sought is a Whether the accommodation sought is a particularly desirable benefit likely to be particularly desirable benefit likely to be sought for secular reasons;sought for secular reasons;

• The timing of the request; andThe timing of the request; and• Any other reason the employer has to Any other reason the employer has to

believe that the request is not sought for believe that the request is not sought for religious reasons.religious reasons.

Statutory Exception to Covered Statutory Exception to Covered EntitiesEntities

• Religious Organizations are excluded Religious Organizations are excluded from coverage.from coverage.

• 42 USC 42 USC § 2000e-1(a) and Texas § 2000e-1(a) and Texas Labor Code Labor Code § 21.109.§ 21.109.– These sections allows religious These sections allows religious

organizations to give employment organizations to give employment preference to members of their own preference to members of their own religion.religion.

Limits to the ExceptionLimits to the Exception

• This exception only allows religious This exception only allows religious organizations to prefer to employ organizations to prefer to employ persons who share their religion.persons who share their religion.

• It does NOT allow religious It does NOT allow religious organizations to otherwise organizations to otherwise discriminate in employment discriminate in employment decisions.decisions.– Unless the ministerial exception applies.Unless the ministerial exception applies.

Ministerial ExceptionMinisterial Exception

• Non-statutory exception to the Non-statutory exception to the protections against religious protections against religious discrimination.discrimination.

• Premise is based on constitutional Premise is based on constitutional First Amendment considerations of First Amendment considerations of the separation of church and state the separation of church and state under the free exercise and under the free exercise and establishment clauses.establishment clauses.

What is the ministerial What is the ministerial exception?exception?

• This exception prevents clergy This exception prevents clergy members from bringing claims of members from bringing claims of discrimination under federal discrimination under federal discrimination laws.discrimination laws.

• The theory is that governmental The theory is that governmental regulation of church administration regulation of church administration would be an impermissible would be an impermissible entanglement of church and state.entanglement of church and state.

• Leading Fifth Circuit case on this Leading Fifth Circuit case on this exception is exception is McClure v. Salvation McClure v. Salvation ArmyArmy, 460 F.2d 553 (5, 460 F.2d 553 (5thth Cir. 1972). Cir. 1972).

• Good discussion of this issue in Good discussion of this issue in Elvig Elvig v. Calvin Presbyterian Churchv. Calvin Presbyterian Church, 397 , 397 F.3d 790 (9F.3d 790 (9thth Cir. 2005). Cir. 2005).

Recent Local Case of Recent Local Case of InterestInterest• Klouda v. Southwestern Baptist Klouda v. Southwestern Baptist

Theological Seminary,Theological Seminary, 2008 WL 833493 2008 WL 833493 (N. D. Tex. 2008)(N. D. Tex. 2008)– Sherri Klouda was Assistant Professor of Old Sherri Klouda was Assistant Professor of Old

Testament languages.Testament languages.– Her hiring was extremely controversial.Her hiring was extremely controversial.– She was only hired after a compromise She was only hired after a compromise

agreement was reached that limited her agreement was reached that limited her employment to teaching Hebrew and Aramaic employment to teaching Hebrew and Aramaic grammar, syntax, and exegesis.grammar, syntax, and exegesis.

• She sued for gender discrimination after She sued for gender discrimination after the Dean that her that her contract was the Dean that her that her contract was not renewed because she was a woman not renewed because she was a woman and a “mistake that the trustees needed and a “mistake that the trustees needed to fix.”to fix.”

• The Chair of the Trustees was quoted in The Chair of the Trustees was quoted in the local newspaper as saying that hiring a the local newspaper as saying that hiring a woman to teach men was a “momentary woman to teach men was a “momentary lax of the parameters.”lax of the parameters.”

• Judge McBryde granted the Seminary’s Judge McBryde granted the Seminary’s motion for summary judgment.motion for summary judgment.– He noted that if a claim challenges a He noted that if a claim challenges a

religious institution’s employment decision, religious institution’s employment decision, an important inquiry is whether the an important inquiry is whether the employee is a member of the clergy or employee is a member of the clergy or otherwise serves a ministerial function.otherwise serves a ministerial function.

– If so, the ministerial exception applies.If so, the ministerial exception applies.

• Judge McBryde concluded that the Judge McBryde concluded that the seminary was a “church” and that seminary was a “church” and that Klouda was a “minister” as Klouda was a “minister” as contemplated by the ministerial contemplated by the ministerial exception.exception.– Klouda taught Hebrew and Aramaic Klouda taught Hebrew and Aramaic

grammar, syntax and exegesis.grammar, syntax and exegesis.– The court concluded that her teachings The court concluded that her teachings

were designed to assist and prepare the were designed to assist and prepare the students for ministry.students for ministry.

• Judge McBryde also concluded that the Judge McBryde also concluded that the decision to terminate Klouda was also decision to terminate Klouda was also ecclesiastical in nature.ecclesiastical in nature.– Thus, it was also prohibited under the Thus, it was also prohibited under the

ecclesiastical abstention doctrine as well.ecclesiastical abstention doctrine as well.– The ecclesiastical abstention doctrine prohibits The ecclesiastical abstention doctrine prohibits

courts from involving themselves in courts from involving themselves in ecclesiastical matters, such as theological ecclesiastical matters, such as theological controversies, church discipline, etc. controversies, church discipline, etc. • This prohibition stems from the First Amendment’s This prohibition stems from the First Amendment’s

religious clauses.religious clauses.

Who Falls within scope of Who Falls within scope of ministerial exception?ministerial exception?

• ““Clergy”Clergy”

• However, courts have interpreted clergy However, courts have interpreted clergy quite broadly and ministerial exception quite broadly and ministerial exception has been applied to:has been applied to:– Music MinisterMusic Minister– Choir DirectorChoir Director– Communications DirectorCommunications Director– Mashgiach (person responsible to see that Mashgiach (person responsible to see that

Jewish dietary laws are followed).Jewish dietary laws are followed).

Types of Employment Decisions Types of Employment Decisions that are Impacted by this that are Impacted by this ProtectionProtection• Recruitment, Hiring and PromotionRecruitment, Hiring and Promotion

• Discipline and DischargeDiscipline and Discharge

• Compensation and other terms, Compensation and other terms, conditions or privileges of conditions or privileges of employmentemployment

Bona Fide Occupational Bona Fide Occupational QualificationQualification

• An employer may hire and employ An employer may hire and employ employees on the basis of religion if employees on the basis of religion if religion is a “bona fide occupational religion is a “bona fide occupational qualification” reasonably necessary qualification” reasonably necessary to the normal operation of the to the normal operation of the particular business or enterprise.particular business or enterprise.– 42 USC 2000e-2(e)(1)42 USC 2000e-2(e)(1)

• Extremely narrow defense.Extremely narrow defense.

Successful BFOQ CaseSuccessful BFOQ Case

• Kern v. Dynalectron Corp.Kern v. Dynalectron Corp., 577 F.Supp. , 577 F.Supp. 1196 (N.D.Tex. 1983).1196 (N.D.Tex. 1983).

• Requirement that pilot convert to Islam Requirement that pilot convert to Islam was not based on preference of contractor was not based on preference of contractor working in Saudi Arabia.working in Saudi Arabia.

• Requirement was based on fact that non-Requirement was based on fact that non-Muslim employees caught flying into Muslim employees caught flying into Mecca would be beheaded under Saudi Mecca would be beheaded under Saudi law.law.

Religious HarassmentReligious Harassment

• Quid Pro Quo HarassmentQuid Pro Quo Harassment– Employee is required or coerced to abandon, Employee is required or coerced to abandon,

alter or adopt a religious practice as a alter or adopt a religious practice as a condition of employment.condition of employment.

• Hostile EnvironmentHostile Environment– Employee is subjected to unwelcome Employee is subjected to unwelcome

statements or conduct that is based on religion statements or conduct that is based on religion and is so severe or pervasive that the and is so severe or pervasive that the employee reasonably finds the work employee reasonably finds the work environment hostile or abusive.environment hostile or abusive.

Key Points for Employers to Key Points for Employers to keep in Mindkeep in Mind

• Note: Harassment can be based on Note: Harassment can be based on religion even if religion is NOT expressly religion even if religion is NOT expressly mentioned.mentioned.

• The employee must show that the The employee must show that the conduct is unwelcome.conduct is unwelcome.– This is an important point in situations This is an important point in situations

involving proselytizing employees.involving proselytizing employees.– Many times an employee will be Many times an employee will be

uncomfortable with a proselytizing co-uncomfortable with a proselytizing co-worker.worker.

• Note: an employer never has to Note: an employer never has to accommodate the expression of accommodate the expression of religious belief in the workplace religious belief in the workplace where such an accommodation could where such an accommodation could potentially constitute harassment of potentially constitute harassment of co-workers.co-workers.– (See EEOC Compliance Manual (See EEOC Compliance Manual

Examples at pages 17-23)Examples at pages 17-23)

Reasonable Accommodation of Reasonable Accommodation of Sincerely Held Religious BeliefsSincerely Held Religious Beliefs

• Title VII requires an employer to Title VII requires an employer to reasonably accommodate an employee reasonably accommodate an employee whose sincerely held religious belief, whose sincerely held religious belief, practice or observance conflicts with a practice or observance conflicts with a work requirement, unless providing the work requirement, unless providing the accommodation would create an undue accommodation would create an undue hardship.hardship.– This obligation only kicks in once the employer This obligation only kicks in once the employer

is on notice of the need and request for is on notice of the need and request for accommodation.accommodation.

Source of Duty to Reasonably Source of Duty to Reasonably AccommodateAccommodate

• Title VII, 42 USC § 2000e(j)Title VII, 42 USC § 2000e(j)

• Texas Labor Code § 21.108Texas Labor Code § 21.108

• Texas Labor Code § 52.001(c)Texas Labor Code § 52.001(c)– This section applies to retail employersThis section applies to retail employers

Common Types of Common Types of Accommodations RequestsAccommodations Requests

• Work SchedulesWork Schedules

• Dress and Grooming IssuesDress and Grooming Issues

• Religious Expression or practice at Religious Expression or practice at workwork– Prayer BreaksPrayer Breaks– Wearing or displaying a religious symbol Wearing or displaying a religious symbol

on uniform or in officeon uniform or in office

The Request for The Request for AccommodationAccommodation

• The Employee seeking the The Employee seeking the accommodation must make the accommodation must make the employer aware of:employer aware of:– (1)(1) the need for accommodation andthe need for accommodation and– (2) (2) that it is being requested due to a that it is being requested due to a

conflict between religion and work.conflict between religion and work.

• The employee must explain the The employee must explain the religious nature of the belief or practice religious nature of the belief or practice at issue.at issue.

Need to Discuss the Need to Discuss the RequestRequest• Both the employer and the employee play a Both the employer and the employee play a

role in resolving an accommodation request.role in resolving an accommodation request.

• There is a duty to cooperate.There is a duty to cooperate.

• If the request does not contain sufficient If the request does not contain sufficient information, the employer may make a information, the employer may make a limited inquiry into the facts and limited inquiry into the facts and circumstances of the employee’s claim that circumstances of the employee’s claim that this is a belief or practice that is religious this is a belief or practice that is religious and sincerely held.and sincerely held.

• Caution: employers need to Caution: employers need to remember that idiosyncratic beliefs remember that idiosyncratic beliefs can be a sincerely held religious belief.can be a sincerely held religious belief.

• Verification of the sincerely held Verification of the sincerely held religious belief does not need to come religious belief does not need to come from a church.from a church.– Instead, it can come from others who are Instead, it can come from others who are

aware of the employee’s belief or practice.aware of the employee’s belief or practice.

Reasonable AccommodationReasonable Accommodation

• An employer never has to provide an An employer never has to provide an accommodation that would pose an accommodation that would pose an “undue hardship.”“undue hardship.”

• Determination of reasonable Determination of reasonable accommodation must be made on a accommodation must be made on a case by case basis.case by case basis.

• If there is more than one accommodation If there is more than one accommodation that is reasonable, the employer is not that is reasonable, the employer is not required to provide the accommodation required to provide the accommodation favored by the employee.favored by the employee.

• An employee is not required to accept a An employee is not required to accept a pay reduction or loss of some other benefit pay reduction or loss of some other benefit if there is a reasonable accommodation if there is a reasonable accommodation that does not require the loss of an that does not require the loss of an employment benefit.employment benefit.

Undue HardshipUndue Hardship

• An employer can show undue An employer can show undue hardship if the accommodation would hardship if the accommodation would impose more than “de minimis cost.”impose more than “de minimis cost.”– Note: This standard is much lower than Note: This standard is much lower than

the ADA undue hardship standard, which the ADA undue hardship standard, which requires a showing that the requires a showing that the accommodation would cause significant accommodation would cause significant difficulty or expense.difficulty or expense.

Relevant FactorsRelevant Factors

• Type of workplaceType of workplace

• Nature of the employee’s dutiesNature of the employee’s duties

• Identifiable cost of the Identifiable cost of the accommodation in relation to the size accommodation in relation to the size and operating costs of the employerand operating costs of the employer

• Number of employees who will need a Number of employees who will need a particular accommodationparticular accommodation

• The employer must The employer must proveprove how much how much cost or disruption would be imposed cost or disruption would be imposed by the requested accommodation.by the requested accommodation.– It cannot be a hypothetical cost or It cannot be a hypothetical cost or

disruption.disruption.– It must be an actual cost or impact.It must be an actual cost or impact.

• It must be more than just “de It must be more than just “de minimis cost.”minimis cost.”

• However, some Fifth Circuit cases seem to However, some Fifth Circuit cases seem to rely on a lower standard.rely on a lower standard.

• Some hold that the “mere possibility” of Some hold that the “mere possibility” of an undue hardship can be sufficient to an undue hardship can be sufficient to reject a reasonable accommodation.reject a reasonable accommodation.– Jones v. United Parcel ServiceJones v. United Parcel Service, 2008 WL , 2008 WL

2627675 (N.D. Tex. 2008), citing 2627675 (N.D. Tex. 2008), citing Bruff v. North Bruff v. North Mississippi Health Services, Inc.Mississippi Health Services, Inc., 244 F.3d 495, , 244 F.3d 495, 501, n. 14 (5501, n. 14 (5thth Cir. 2001) Cir. 2001)• Case on appeal now.Case on appeal now.

ExamplesExamples

• Not More than a De Minimis CostNot More than a De Minimis Cost– Payment of administrative costs to rearrange Payment of administrative costs to rearrange

schedules or recording substitutions.schedules or recording substitutions.– Payment of infrequent or temporary Payment of infrequent or temporary

payment of premium wages.payment of premium wages.

• More than a De Minimis CostMore than a De Minimis Cost– Regular payment of premium wages Regular payment of premium wages

required.required.– Hiring of additional employees required.Hiring of additional employees required.

• Courts have found undue hardship in Courts have found undue hardship in the following contexts:the following contexts:– Accommodation diminishes job efficiency.Accommodation diminishes job efficiency.– Accommodation infringes on other Accommodation infringes on other

employees job rights or benefits.employees job rights or benefits.– Accommodation impairs workplace safety Accommodation impairs workplace safety

or causes co-workers to carry the or causes co-workers to carry the employee’s share of potentially employee’s share of potentially hazardous or burdensome work.hazardous or burdensome work.

Seniority Systems and Seniority Systems and Collective Bargaining Collective Bargaining AgreementsAgreements• A requested accommodation may A requested accommodation may

pose an undue hardship if it deprives pose an undue hardship if it deprives another employee of a job another employee of a job preference or other benefit preference or other benefit guaranteed by a bona fide seniority guaranteed by a bona fide seniority system or collective bargaining system or collective bargaining agreement.agreement.

• Courts are quite clear:Courts are quite clear:– An employer is NOT required to deviate from a An employer is NOT required to deviate from a

seniority system in order to give an employee seniority system in order to give an employee shift preference for religious reasons.shift preference for religious reasons.

– However, it is NOT an undue hardship to allow However, it is NOT an undue hardship to allow voluntary swaps and substitutes to the extent voluntary swaps and substitutes to the extent that such agreements do not violate a seniority that such agreements do not violate a seniority system or collective bargaining agreement.system or collective bargaining agreement.

Leonce v. Callahan, Leonce v. Callahan, 2008 WL 2008 WL 58892 (N.D. Tex. 2008).58892 (N.D. Tex. 2008).

• Leonce fired by Wichita County Sheriff Leonce fired by Wichita County Sheriff Dept. when he advised Sheriff that he Dept. when he advised Sheriff that he could not work after sundown on Friday could not work after sundown on Friday due to his Seventh Day Adventist due to his Seventh Day Adventist beliefs.beliefs.– Leonce offered reasonable accommodation Leonce offered reasonable accommodation

of working 1of working 1stst shift on Friday (7 a.m. to 3 shift on Friday (7 a.m. to 3 p.m.) and 3p.m.) and 3rdrd shift on Saturday (11:00 p.m. shift on Saturday (11:00 p.m. to 7 a.m.) when necessary.to 7 a.m.) when necessary.

• He was terminated because Sheriff He was terminated because Sheriff department had seniority system allowing department had seniority system allowing senior officers priority in choosing their senior officers priority in choosing their desired days off.desired days off.

• The court noted that the seniority system The court noted that the seniority system did not trump the employer’s obligation to did not trump the employer’s obligation to accord a reasonable accommodation if the accord a reasonable accommodation if the reasonable accommodation did not create reasonable accommodation did not create a hardship on employer.a hardship on employer.

• Court concluded that no reasonable Court concluded that no reasonable accommodation could be made that would accommodation could be made that would not impose an undue hardship on the not impose an undue hardship on the County.County.– The court rejects voluntary shift swapping as an The court rejects voluntary shift swapping as an

alternative because Leonce’s religious alternative because Leonce’s religious imperative was “ongoing and permanent.” imperative was “ongoing and permanent.”

– Court felt there was no way to know that Court felt there was no way to know that Leonce’s would always be able to find a Leonce’s would always be able to find a volunteer to swap shifts with him when needed.volunteer to swap shifts with him when needed.

Common AccommodationsCommon Accommodations

• Flexible schedulingFlexible scheduling

• VoluntaryVoluntary swaps or substitutes of swaps or substitutes of shifts and assignmentsshifts and assignments

• Lateral transfer and/or change of job Lateral transfer and/or change of job assignmentassignment

• Modification of workplace practice, Modification of workplace practice, policies and/or procedurespolicies and/or procedures

Recent Issues in Recent Issues in Accommodations RequestsAccommodations Requests

• Many recent articles dealing with Many recent articles dealing with religious accommodation requests.religious accommodation requests.

• Recently, Tyson Foods agreed to let Recently, Tyson Foods agreed to let its work force claim Eid al-Fitr as a its work force claim Eid al-Fitr as a paid holiday instead of Labor Day.paid holiday instead of Labor Day.– This holiday celebrates the end of the This holiday celebrates the end of the

Muslim holy month of Ramadan.Muslim holy month of Ramadan.– Non-Muslims protested that the policy Non-Muslims protested that the policy

was un-American.was un-American.

• Tyson solved the problem by Tyson solved the problem by reinstating Labor Day. reinstating Labor Day.

• Tyson then switched a paid birthday Tyson then switched a paid birthday to a personal day that could be used to a personal day that could be used for religious observances.for religious observances.

Mass Firings at meat packing Mass Firings at meat packing plansplans

• Last week, the Wall Street Journal ran Last week, the Wall Street Journal ran an article featuring the firing of 200 an article featuring the firing of 200 Muslim Somali workers at Muslim Somali workers at meatpacking plans.meatpacking plans.

• The workers had walked off the job in The workers had walked off the job in protests over prayer disputes.protests over prayer disputes.

• Workers had clashed with management Workers had clashed with management over praying at sunset.over praying at sunset.– This falls within the second shift.This falls within the second shift.– Since the workers are on a rapidly moving Since the workers are on a rapidly moving

assembly line, allowing short prayer breaks assembly line, allowing short prayer breaks would disrupt the line.would disrupt the line.

– Shutting the assembly line down for an Shutting the assembly line down for an additional 15 minute break is too costly.additional 15 minute break is too costly.

– They would always be “chasing the sun” since They would always be “chasing the sun” since sunset comes at different times.sunset comes at different times.

• Attempts to accommodate can create Attempts to accommodate can create cultural tensions.cultural tensions.– Management at the JBS plant had agreed Management at the JBS plant had agreed

to move an 8:15 p.m. break to 7:45 p.m.to move an 8:15 p.m. break to 7:45 p.m.– The Latino workers then protested. The Latino workers then protested. – The break time was changed back to 8:15 The break time was changed back to 8:15

p.m. and when the Somali workers p.m. and when the Somali workers walked off the job in protest, they were walked off the job in protest, they were fired.fired.

Modification of Workplace Modification of Workplace practices, policies and practices, policies and proceduresprocedures• This area is where Dress and Grooming This area is where Dress and Grooming

standards come into play.standards come into play.

• If an employer has a dress or grooming If an employer has a dress or grooming policy that conflicts with an employee’s policy that conflicts with an employee’s sincerely held religious beliefs, the sincerely held religious beliefs, the employee may ask for an exception to employee may ask for an exception to the dress or grooming policy as a the dress or grooming policy as a reasonable accommodation.reasonable accommodation.

Examples of Exceptions to Examples of Exceptions to Dress or Grooming StandardsDress or Grooming Standards

• Allowing an employee to wear a head Allowing an employee to wear a head scarf or a turban.scarf or a turban.

• Allowing an employee not to shave Allowing an employee not to shave his beard or cut his or her hair.his beard or cut his or her hair.

• Allowing an employee to display Allowing an employee to display visible tattoos or piercing.visible tattoos or piercing.

• Absent an undue hardship, an Absent an undue hardship, an employer may be liable for religious employer may be liable for religious discrimination if the employer fails to discrimination if the employer fails to accommodate the employee’s accommodate the employee’s religious dress or grooming practices.religious dress or grooming practices.

• Note: It can be an undue hardship Note: It can be an undue hardship for an employer to accommodate a for an employer to accommodate a religious dress or grooming practice religious dress or grooming practice that conflicts with the public image that conflicts with the public image that the employer wishes to convey that the employer wishes to convey to customers.to customers.

ExampleExample

• Cloutier v. Costco Wholesale Corp.Cloutier v. Costco Wholesale Corp., , 390 F.3d 126 (1390 F.3d 126 (1stst Cir. 2004). Cir. 2004).

• It was an undue hardship for Costco It was an undue hardship for Costco to grant an exemption that would to grant an exemption that would allow its cashier to have facial allow its cashier to have facial piercings because it detracts from piercings because it detracts from the “neat, clean and professional the “neat, clean and professional image” that Costco cultivates.image” that Costco cultivates.

Rangel v. Red RobinRangel v. Red Robin, 2005 WL , 2005 WL 2090677 (W.D. Wash. 2005)2090677 (W.D. Wash. 2005)

• It was not an undue hardship for Red It was not an undue hardship for Red Robin to employ a worker with wrist Robin to employ a worker with wrist tattoos.tattoos.– Employee was member of Kemetic religion and Employee was member of Kemetic religion and

received tattoos of religious inscriptions on his received tattoos of religious inscriptions on his wrist.wrist.

– Under his religious beliefs, he cannot Under his religious beliefs, he cannot intentionally conceal the tattoos.intentionally conceal the tattoos.• Case settled after the trial court refused to grant the Case settled after the trial court refused to grant the

employer’s motion for summary judgmentemployer’s motion for summary judgment

Proselytizing or Religious Proselytizing or Religious ExpressionExpression

• Case by Case analysis.Case by Case analysis.

• Employer should consider potential Employer should consider potential disruption, if any, that would result by disruption, if any, that would result by permitting expression of religious permitting expression of religious belief.belief.– Factors:Factors:

•Effect the expression has on co-workersEffect the expression has on co-workers

•Effect on customersEffect on customers

•Effect on business operationsEffect on business operations

Religious Expression directed at Religious Expression directed at

CustomersCustomers

• It is a complicated issue as to whether It is a complicated issue as to whether allowing religious expression towards allowing religious expression towards customers creates an undue hardship.customers creates an undue hardship.– Again, a case by case analysis, Again, a case by case analysis,

considering:considering:•Nature of the employer’s businessNature of the employer’s business

•Nature of the expressionNature of the expression

•Extent of the impact on customer relationsExtent of the impact on customer relations

• Brief anonymous interaction likely to Brief anonymous interaction likely to be o.k.be o.k.

• Individualized, specific proselytizing Individualized, specific proselytizing is likely to be more problematic.is likely to be more problematic.

National Origin National Origin DiscriminationDiscrimination

• Many religious discrimination cases Many religious discrimination cases also contain national origin also contain national origin discrimination implications.discrimination implications.– The same set of facts may state a claim The same set of facts may state a claim

of national origin discrimination and of national origin discrimination and religious discrimination when a religious discrimination when a particular religion is strongly associated, particular religion is strongly associated, or perceived to be associated, with a or perceived to be associated, with a specific national origin.specific national origin.

• Post 9/11, this has been a particular Post 9/11, this has been a particular problem for Muslims or Arabs.problem for Muslims or Arabs.– The EEOC issued a statement after 9/11 The EEOC issued a statement after 9/11

directed to this issue.directed to this issue.– The EEOC noted that employers and The EEOC noted that employers and

unions needed to be particularly unions needed to be particularly sensitive to potential discrimination and sensitive to potential discrimination and harassment against those who are harassment against those who are Muslim, Arab, Afghani, Middle Eastern, Muslim, Arab, Afghani, Middle Eastern, or South Asian.or South Asian.

EEOC Fact Sheets on Religion EEOC Fact Sheets on Religion and National Origin and National Origin DiscriminationDiscrimination• http://www.eeoc.gov/facts/fs-relig_ethttp://www.eeoc.gov/facts/fs-relig_et

hnic.htmlhnic.html

• http://www.eeoc.gov/facts/backlash-ehttp://www.eeoc.gov/facts/backlash-employee.htmlmployee.html

• http://www.eeoc.gov/origin/http://www.eeoc.gov/origin/index.htmlindex.html

What is national origin?What is national origin?

• ““National Origin” generally refers to National Origin” generally refers to the country where a person was the country where a person was born, or more broadly, the country born, or more broadly, the country from which his or her ancestors from which his or her ancestors came.came.– Espinoza v. Farah Mgf. Co, Inc.Espinoza v. Farah Mgf. Co, Inc., 414 U.S. , 414 U.S.

86 (1973).86 (1973).– Texas Labor Code § 21.110Texas Labor Code § 21.110

• National Origin can include:National Origin can include:– JewsJews– SerbsSerbs– CajunsCajuns– Others based upon the unique historical, Others based upon the unique historical,

political and/or social circumstances of a political and/or social circumstances of a given regiongiven region•Storey v. Burns Int’l Sec. Serv.Storey v. Burns Int’l Sec. Serv., 390 F.3d 760 , 390 F.3d 760

(3d Cir. 2004)(3d Cir. 2004)

• Many religious discrimination cases Many religious discrimination cases are also going to include national are also going to include national origin discrimination issuesorigin discrimination issues– The EEOC is instructing its case officers The EEOC is instructing its case officers

to be sensitive to these issues and to be sensitive to these issues and investigate these issuesinvestigate these issues

– Employers also need to be sensitive to Employers also need to be sensitive to this and perform adequate trainingthis and perform adequate training

ConclusionConclusion

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

Coexist.Coexist.