July 12, 2016 | Mark W. Bakker

Coexist-ing in the Workplace Negotiating religious protections in the real world of HR

CLASH OF CULTURES “What’s unfolding today is not a drama in which secularist progressivism is slowly but surely eclipsing antiquated religious faith at last, but a contest of competing creeds, and competing first principles. Only when we acknowledge that truth can we see that there is only one way out of this cantankerous, riven place.”

RELIGION AND WORK IN THE HEADLINES

Legal Sources

Various State Laws

Title VII

Constitution

PROTECTIONS FOR RELIGIOUS BELIEF/ACTION

CONSTITUTIONAL PROTECTION

AMONG THE BILL OF RIGHTS…

FIRST AMENDMENT PROTECTION

GOVERNMENT EMPLOYERS

GOVERNMENT EMPLOYEES

PRIVATE SECTOR

EMPLOYERS

PRIVATE SECTOR

EMPLOYEES?

EEOC/TITLE VII

EEOC & RELIGIOUS DISCRIMINATION

EEOC charges alleging religious discrimination in the workplace have more than doubled in the past decade.

2010 -- 24 2011 -- 15 2012 -- 9 2013 -- 12 2014 -- 8 2015 -- 7

THE EEOC FILED 75 LAWSUITS

INVOLVING CLAIMS OF RELIGIOUS

DISCRIMINATION UNDER TITLE VII

FY 2010-2015

EEOC LAWSUITS

UP TO 15% OF ALL LAWSUITS FILED BY EEOC INVOLVE RELIGIOUS DISCRIMINATION

RELIEF RECOVERED BY EEOC 2010-15

WIDESPREAD FEELINGS OF DISCRIMINATION

http://religiousfreedomandbusiness.org/2/post/2014/08/workplace-religious-discrimination-encountered-by-1-in-3.html

EEOC RELIGIOUS DISCRIMINATION PRESS RELEASES JULY 2015 TO JUNE 2016

• EEOC Sues Rotten Ralph’s Restaurant for Religious Discrimination https://www1.eeoc.gov/eeoc/newsroom/release/7-9-15.cfm

• EEOC Sues UPS for Religious Discrimination

https://www1.eeoc.gov/eeoc/newsroom/release/7-15-15.cfm • Dunkin’ Donuts Franchisee Will Pay $22,000 to Settle EEOC Religious

Discrimination Lawsuit https://www1.eeoc.gov/eeoc/newsroom/release/7-15-15b.cfm

• Abercrombie Resolves Religious Discrimination Case Following Supreme Court

Ruling in Favor of EEOC https://www1.eeoc.gov/eeoc/newsroom/release/7-28-15.cfm

• National Federation of the Blind Sued for Religious Discrimination by EEOC

https://www1.eeoc.gov/eeoc/newsroom/release/8-21-15c.cfm • Court Awards Over Half Million Dollars Against Consol Energy/Consolidation

Coal In EEOC Religious Discrimination Lawsuit https://www1.eeoc.gov/eeoc/newsroom/release/8-27-15a.cfm

• National Tire and Battery to Pay $22,500 to Settle EEOC National Origin / Religious Harassment Suit

https://www1.eeoc.gov/eeoc/newsroom/release/10-20-15.cfm • Jury Awards $240,000 to Muslim Truck Drivers In EEOC Religious

Discrimination Suit https://www1.eeoc.gov/eeoc/newsroom/release/10-22-15b.cfm

• National Federation for the Blind Will Pay $25,000 to Settle EEOC Religious

Accommodation Lawsuit https://www1.eeoc.gov/eeoc/newsroom/release/2-8-16.cfm

• Mission Hospital Sued By EEOC For Religious Discrimination

https://www1.eeoc.gov/eeoc/newsroom/release/4-28-16.cfm • EEOC Sues Baystate Medical Center for Religious Discrimination &

Retaliation https://www1.eeoc.gov/eeoc/newsroom/release/6-2-16b.cfm

• EEOC Sues Greenville Ready Mix Concrete for Religious Discrimination

https://www1.eeoc.gov/eeoc/newsroom/release/6-7-16.cfm

VIOLATIONS HAVE INVOLVED A VARIETY OF FACT PATTERNS

– Refusing to hire/firing workers after learning their religion

– Discharging workers who take leave for religious-related events (e.g., observing the Sabbath)

– Failing to accommodate religious-related garb choices – Retaliating against employees who requested a reasonable

accommodation or complained about religious discrimination.

TITLE VII REQUIREMENTS: PART I Provide a workplace free from:

• religious discrimination • harassment • retaliation

Except: religious organizations

NO DISCRIMINATION IN ALL ASPECTS OF EMPLOYMENT

• Recruit • Hire • Promote • Terms & Conditions • Discipline • Termination

EXTERNAL PRESSURES ALSO DISCRIMINATORY

• Customer preference • Security requirements

• BFOQ rare

• Don’t inquire about religious status/preference • Same interview questions related to particular job • Accurately document • Address customer bias

HARASSMENT

• Religious Coercion • Hostile Work Environment

– Religion – Unwelcome – Severe/pervasive

EXAMPLE OF HARASSMENT EEOC v Autozone (D. Mass. 2012)

• Sikh employee • Requested accommodation of wearing

turban/religious bracelet refused by company • Asked if he was terrorist, referred to him as “Bin

Laden,” made lots of jokes

• Include religion in anti-harassment policy • Address complaints • Intervene proactively • Avoid supervisor coercion

TITLE VII REQUIREMENTS: PART II Provide reasonable

accommodation for • employee’s seriously

held religious beliefs • unless accommodation

would impose an undue hardship

WHAT IS RELIGION? • “Religion” broadly defined • Includes Sincere Beliefs…

• Theistic/nontheistic • Unique/popular • Incomprehensible? • Moral & ethical beliefs?

… AND OBSERVATIONS/PRACTICE – Worship – Garb – symbols – Diet – Expression – Refraining from certain

activities

WHICH BELIEFS & PRACTICES?

Only sincerely held religious beliefs and practices need to be

accommodated

INQUIRY INTO SINCERITY

• Assume sincerity • Objective basis to

doubt? Ok to seek other information

• Case-by-case inquiry

WHAT IS SINCERE? • Sun Worshipping

Atheism • Veganism • Worship of

Marijuana • KKK/Confederate

Flag

Religious beliefs…

or lack thereof

WHAT IS ACCOMMODATION?

“A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with his or her religious beliefs.”

SIMILAR TO ADA ACCOMMODATION

• Employee must make employer aware

• No “magic words” • Interactive dialogue • Case-by-case determination • Choose effective alt. accommodation • Acquiescence not defense

UNDUE HARDSHIP …NOT LIKE ADA

• Would accommodation impose “more than de minimis cost”?

• Burden still on employer

FACTORS FOR DEMINIMIS COST (DIRECT)

IDENTIFIABLE COSTS

OPERATING COSTS OF EMPLOYER

SIZE OF

EMPLOYER

# OF INDIVIDALS WHO NEED

ACCOMMODATION

DE MINIMIS CALCULATION: REARRANGING SCHEDULE

Admin Cost

Temp OT

De Minimis

Admin Cost

Regular OT

Undue hardship

WHAT COUNTS AS INDIRECT COSTS? • Diminished efficiency in other

jobs • Infringes other employees’ job

rights/benefits • Impairs workplace safety • Causes co-workers to carry

burdensome work • Seniority systems and CBA

rights

ACCOMMODATION: IGNORANCE IS NOT BLISS

• 2015 Supreme Court Case • “Look Policy” • Disparate impact

HYPOTHETICAL #1 (GARB) • Corrections facility bans all head covering • X asks to wear a fez at work on particular holy days • Potential Claim? • What if brother works at grocery store with same ban?

– Policy: all employees wear uniform clothing so that can be readily indentified by customers

EEOC Compliance Manual Example 38 Notes: Mims (Rastafarian driver); Elegante (housekeeper hajib); ABM

Security (security officer)

HYPOTHETICAL #2 (BREAK SCHEDULE)

• Employer policy one 15-minute break in morning and one 15-minute break in afternoon

• Janitor asks for prayer at 5 prescribed times/day • Permissible?

EEOC Compliance Manual Example 40

HYPOTHETICAL #3 (SHIFT CHANGE)

• Company policy of equal weekend shifts for all e/ees • Requires each employee to work 10 Sundays/year • X wants to swap out with Y (Saturday/Sunday swap) • Permissible? • What if no volunteers? Involuntary swap?

HYPOTHETICAL #4 (CHANGE JOB TASKS)

• Pharmacist informs employer that she cannot participate in distributing contraceptives

• What factors would come into play to accommodate request? – Size of department/coverage – Lateral positions

• Note: must meet expectations re: customers

HYPOTHETICAL #5 (ALTERNATIVE ACCOMMODATION)

• Job requires availability for emergencies at any time • Requests accommodation for Sabbath observance • Assume undue hardship to stay in position • Open position with lower pay and benefits • Can you transfer?

EEOC Compliance Manual Example 45

HYPOTHETICAL #6 (USUAL REQUIREMENTS)

• Applicant says that he declined to provide social security number on religious grounds

• Assuming sincerity of belief and practice, can company refuse to hire?

Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826 (9th Cir. 1999) (not liable because federal law requires SSN and therefore request posed undue hardship)

• What about payment of union dues?

HYPOTHETICAL #7 (RELIGIOUS EXPRESSION)

• Roger works at guard station at front desk in lobby • Susan is an architect in same building (private office) • Both wants to put up religious poster (“Jesus Saves”) • No customer or coworker complaints • Employer says to take down poster • Should allow accommodation?

EEOC Compliance Manual Example 49

HYPOTHETICAL #8 (RELIGIOUS EXPRESSION)

• Mandatory weekly staff meeting • Meeting always begins with prayer? • Must excuse employee on religious grounds?

– “close your ears” not OK

• On-site meditation class? • Anti-discrimination training that includes sexual

orientation?

• Create Religious Accommodation Form • Follow up ASAP when accommodation need known • Review request • Analyze undue hardship in good faith • Train managers and supervisors • Avoid assumptions & stereotypes • Consider alternative accommodations • Consider temporary accommodation while exploring

SC STATUTORY PROTECTION

SC STATUTORY PROTECTION

• SC Code § 53-1-80/“Blue Laws” – Time Off (retail) to attend Sunday worship services

• SC Code § 16-17-560 – Protection from “discharge” – If employee expresses “political opinions” or

“exercise political rights and privileges guaranteed… by the Constitution.”

THANK YOU

Wyche, P.A. @wychepa Wyche, P.A. wyche.com/atwork