Religious Disc Rim Reason Accom m

8/12/2019 Religious Disc Rim Reason Accom m

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Religious Discrimination, Reasonable

Accommodation for Religious Beliefs andReligious Practices in the Workplace


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Legal Requirements

Title VII of the Civil Rights Act of 1964 prohibits agencies fromdiscriminating against individuals because of their religion in hiring,firing, and other terms and conditions of employment.

The Act also requires agencies to reasonably accommodate thereligious practices of an employee or prospective employee, unless

to do so would create an undue hardship upon the agency.

Ministerial Exception:Title VII does not apply to employmentof clergy: First Amendment Free

Exercise Clause


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Definition of Religion

The Commission defines "religion" to include moral or ethical beliefsabout right and wrong that are sincerely held with the strength oftraditional religious views.

Religious discrimination also includes discrimination againstsomeone because s/he is an atheist.


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WHICH ONE OF THESE IS A RELIGIOUS BELIEF

PROTECTED BY TITLE VII?

Sally does not eat meat or dairy products because she believes thatGod created and equally values all living beings, that animalspossess souls, and that it is immoral and unethical for humans to killand exploit animals. She believes that milking an animal forciblyremoves some of its life energy, a component of the soul.

Mary does not eat meat or dairy products because she believes thatconsuming them causes cancer and other diseases. She alsobelieves that the meat and dairy industry is politically powerful and

has persuaded the government to conceal the facts from the public.


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WHICH ONE OF THESE IS A RELIGIOUSBELIEF PROTECTED BY TITLE VII?

Sallys beliefs are religious because they arepart of a comprehensive moral or ethical beliefsystem about life, purpose, and death that aresincerely held with the strength of traditionalreligious views.

Marys beliefs are not religious because they are

based on her view of medicine and politicsrather than on a comprehensive moral or ethicalbelief system.


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Religion - Nature of Practice or

Belief

In most religious discrimination cases whether or not a practice or belief is religious isnot at issue.

In cases in which the issue does exist, the Commission will look at the sincerity of thepersons beliefs

Be mindful that a persons religious beliefs may change over time, individuals may

choose to adhere to some tenets of their religion but not others, or they may have asincere belief in a particular religious practice, even if that practice is not observed byother followers of their religion.


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Employment Discrimination

Based on Religion

Different Treatment

Harassment

Be mindful ofthedifferences!


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Disparate Treatment

When a complainant alleges that the agency treated another

individual better than it treated him/her or otherwise treated him/herdifferently because of that individualsreligious beliefs.

Religious organizations mayprefer members of their ownreligion for positions whichare religious in nature


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Disparate Treatment

Janet, a social worker, works for an agency

which provides tuition reimbursement forcollege credits leading to a B.A. in sociology.Janet, who practices Native American spirituality,applies for a sociology class that focuses on

spirituality and culture. Janets supervisordenies her request for tuition reimbursement onthe grounds that the employer shouldnt pay foremployees to study voodoo. Is this unlawful

disparate treatment?


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Disparate Treatment

By refusing to provide the tuitionreimbursement solely because of thereligious content of the class, Janets

supervisor has discriminated against heron the basis of religion.


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Disparate Treatment

Beta Corporation requires all of its employees to attenddiversity training. Joanne believes that some of thoseteachings are contrary to her fundamentalist Christianbeliefs. When Joannes supervisor refuses to excuse

her from the sessions, she goes but sits in the back andreads her bible. Joannes supervisor issues her a letter

of reprimand for insubordination for not paying attentionduring the mandatory training, but does not disciplineother employees who didnt pay attention. Is this

unlawful disparate treatment?


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Disparate Treatment

While the employer may ordinarily require employees toattend training sessions, it may not discipline employeeswho do not participate in them for religious reasons, orwho express their opposition through religious activity,

more harshly than it disciplines other non-participatingemployees.

Note: The supervisor

may have toaccommodate Janet


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Disparate Impact

The complainant alleges that an agencysneutral policy or practice adversely affects aprotected class.

The burden shifts to the agency to showbusiness necessity.

The complainant may rebut business necessityby showing other means available to achieve thesame objective with less discriminatory impact.

Not afrequentclaim.


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Harassment Title VII of the Civil Rights Act of 1964 prohibits harassing or

otherwise discriminating based on:

Affiliation: because an individual is affiliated with a particular religiousgroup.

Physical or Cultural Traits: because of physical, cultural or linguisticcharacteristics such as accent or dress associated with a particular

religion.

Perception: because of the perception or belief that a person is amember of a particular religious group, whether or not that perception iscorrect.

Association: because of an individuals association with a person ororganization of a particular religion.


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Harassment Anti-harassment principles apply to religion just as to harassment on other protected

bases, such as race, gender or national origin. Law protects employees from being subjected to a hostile work environment, i.e., an

environment tainted by intimidating, abusive ridicule or insult based on religion.

Title VII also requires employers to permit employees to practice their religion, whichmay include engaging in religious expression, unless the expression imposes anundue hardship.

Balance: Protect employees

right to religious expressionwhile protecting others fromharassment


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Harassment

Harassment is unwelcome offensiveconduct in the workplace where:

1) enduring the offensive conductbecomes a condition of continued

employment, or2) the conduct is severe or pervasiveenough to create a work environment that

a reasonable person would considerintimidating, hostile, or abusive.


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Harassment

Wamiq was raised as a Muslim but no longerpractices Islam. His supervisor, Arif, is a verydevout Muslim who lectures Wamiq aboutabandoning Islam and advises him to follow the

teachings of the Koran. Arif denies Wamiq apromotion, saying that Wamiq would never be aKhalipha (divinely inspired leader). Arif alsosays that Wamiq could improve his prospects by

joining Arif and other Muslims for weekly prayer

sessions in Arifs office. Wamiq does not heedArifs advice and ultimately is fired by Arif. Is thisunlawful harassment?


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Harassment

Arifs conduct indicates that the promotionwas denied because of Wamiqs failure toparticipate in the prayer sessions and

practice Islam. Absent evidence that thepromotion denial was for some otherreason, the employer is liable forconditioning Wamiqs employment on his

adherence to Arifs views of appropriatereligious practice.


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Harassment

Beths colleague, Bill, repeatedly talked toher at work about her prospects forsalvation. For several months, she did not

object and discussed the matter with him.However, he persisted even after she toldhim that he had crossed the line and she

didnt want to have anymore non-work

related conversations with him.


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Harassment

When Beth tried to put an end to herconversations with Bill, his conductbecame unwelcome. The employer must

intervene if it is aware that Beth has askedthat the conduct stop and Bill persists.


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HarassmentConduct Must be Sufficiently Severe or Pervasive to Constitute Harassment

Marvin is an Orthodox Jew who was hired as a radio show host. When he startedwork, his co-worker, Stacy, pointed to his yarmulke and asked, Will your headset fitover that? On a few occasions, Stacy referred to the yarmulke as a beanie. Forexample, she said Nice hat. Is that a beanie? Do you have a propeller for it? Dothey come in different colors? Although the comments about Marvins yarmulkewere offensive, they were neither severely hostile nor sufficiently frequent to create awork environment hostile to Jews.

Betty is a Mormon. During a disagreement regarding a joint project, a co-worker,Julian, told Betty that she didnt know what she was talking about and that she shouldgo back to Salt Lake City. When Betty subsequently proposes a different approach tothe project, Julian tells her that her suggestions are as flaky as he would expectfrom her kind. When Betty tries to resolve the conflict, Julian tells her that if she isuncomfortable working with him, she can either ask to be reassigned, or she can justpray about it. Over the next six months, Julian regularly makes negative references

to Bettys religion. His persistent offensive remarks create a hostile environment.


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Harassment

One Instance of Physically Threatening Conduct May be Enough to

Constitute Hostile Environment

Ihsaan is a Muslim. Shortly after the terrorist attacks on September11, Ihsaan came to work and found the words Vengeance for the

victims scrawled in red marker on his office door. Because of the

timing of the statement and the implicit physical threat, this incident,alone, is sufficiently severe to constitute hostile environmentharassment.

Religion and Reasonable


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Religion and Reasonable

Accommodation Under Title VII, an agency has a duty of reasonable accommodation for sincerely held religious

beliefs and practices unless to do so would cause an undue hardship.

As a general rule, the reasonable accommodation requirement arises most often in cases wherean individual is seeking time off for religious observances

Unlike the other protectedgroups under Title VII, religionincludes an affirmativerequirement on the part of theagency: the duty of reasonableaccommodation.


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Prima Facie Failure to Accommodate

Religion Case

A Complainant may present a prima facie case by showing:

That s/he holds a religious belief that conflicts with anemployment requirement.

That s/he informed his/her superior of the conflict; and

That s/he has been penalized for failing to comply with

employment requirements.


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Undue Hardship

An agency can avoid its accommodationobligation only where it shows that anaccommodation would constitute an unduehardship

In terms of religious accommodation,undue hardship can mean a significantcost or other non-cost factors, such as

office disruption.


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Undue Hardship - Costs

An agency may assert undue hardship to justify a refusal to accommodatean employees need to be absent from his or her scheduled duty hours if theagency can demonstrate that the accommodation would require more thana de minimis (minimal impact on agencys business) cost.

The Commission will determine what constitutes more than a de minimis

cost while giving due regard to: the identifiable cost in relation to the size and operating costs of the agency,and

the number of individuals who will in fact need a particularaccommodation.


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Undue Hardship - Seniority Rights

Undue hardship would be shown where a

variance from a bona fide seniority system isnecessary in order to accommodate anemployees religious practices when doing so

would deny another employee his or her job orshift preference guaranteed by that system.

Arrangements for voluntary substitutes andswaps do not constitute an undue hardship to

the extent the arrangements do not violate abona fide seniority system.


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Accommodating Religious PracticesMy name is Laini Luthuli and I am a Muslim. Muslims perform five prayers a day.Each prayer does not take more than a few minutes to perform. Prayers areperformed at dawn, noon, mid-afternoon, sunset, and night. Muslims may pray almostanywhere, such as in fields, offices or factories. I went to this agencys personneloffice to respond to a newspaper ad for 100 temporary flat sorter machine operators,but I left without applying because of the sign that was posted on the office door.Here, I copied it down so that you can read what the sign says.

ATTENTION: THERE WILL BE NO EXCEPTIONS TO THIS POLICY

The duration of employment for temporary flat sorter machine operators will notexceed 12-months. Salary is fixed at $12.00 per hour. Applicants for this positionmust be available to work flexible day, evening, and night shift schedules, and theymust be willing and able to work up to 40 hours per week in 4 to 10 hour shifts daily,at the discretion of management. If you are selected for this position, you will receiveone (1), hour unpaid lunch break during each work day that exceed 6 hours, andtwo (2)15-minute paid breaks per 8-hour work day. To minimize disruption to the flatsorter machine operation and to maximize use of equipment, all flat sorter machine

operators must break concurrently while the flat sorter machine is being serviced.AccommodationMeans MakingExceptions


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Accommodating Religious Practices

My name is Daniel Steel and I am a

Roman Catholic. I asked my manager,Rob, if I could take annual leave on GoodFriday so that I could go to church. Rob isalso a Roman Catholic so I was surprisedwhen he denied my request. Hisreasoning? When I asked, Rob told methat our faith does not require Catholics

to refrain from working on Good Friday.


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My name is Salomon Silvers. Please, call meSal. I have to speak with you, because I dontknow where else to go. I asked my supervisor if Ican take annual leave next Friday afternoon sothat I can attend religious services. He

responded, I cant give you leave on thatafternoon because its Christmas eve. Im havingenough problems trying to replace the Christianswho want leave on that date. It sounds to meas though the manager is telling me that Im not

entitled to the same consideration as otheremployees. Is he correct?


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Alternatives for Accommodating Religious

Practices that Conflict with Work Schedules

Voluntary Substitutions and Swaps Flexible Scheduling

Arrival

Departure

Floating or Optional Holidays Flexible Work Breaks

Use of Lunch Time in Exchange for Early Departure

Staggered Work Hours

Permitting Employee to Make Up Time Lost due toObservance of Religious Practices

Lateral Transfer and Change of Job Assignments


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Some reasonable religious accommodations that agencies may be

required to provide workers include: Leave for religious observances Providing Time and/or place to pray Ability to wear religious garb

Accommodating certain hairstyles or groominghabits Honoring dietary requirements during meetings

or training sessions where meals are served

Permitting time-off during a mourning period fora deceased relative


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Accommodating Applicants for Employment

Unless it can show that not doing so would

result in undue hardship to the agency, anagency cannot:

Schedule examinations or other selection

activities in conflict with religious needs Make pre-selection inquires to determinean applicants availability to work duringthe agencys scheduled working hours

Refuse to allow observance of a Sabbathor religious holiday.

Guidelines on Religious Exercise and Religious


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Guidelines on Religious Exercise and Religious

Expression in the Federal Workplace

On August 14, 1997, the White House issued Guidelines that applyto all civilian executive branch agencies, officials and employees inthe Federal workplace. The Guidelines principally address thereligious exercise and religious expression of employees whosework areas are not regularly viewed by the public.

The general principle in the guidelines is that agencies must treat allemployees with the same respect and consideration, regardless oftheir religion or lack thereof.


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Religion in the Workplace

Strive for balance

Religious Disc Rim Reason Accom m

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