11397 Deliver within 30 Hrs

Chapter 11: Religious Discrimination

Opening Scenarios

SCENARIO 1

Mohammed, a member of the Sikh religion, wears a turban as part of his religious mandate, including at work. His supervisor tells him the turban makes his co-workers uncomfortable. Must he stop wearing it?

SCENARIO 2

In his preemployment interview, Mosley stated that he would not work on Saturdays because that is the day of his Sabbath. As a result, he is not hired. Is this religious discrimination?

SCENARIO 3

Three months after coming to work for Steel Bank, Jon joins a religious group whose Sabbath is on Tuesdays. Members of the religion are not to work on the Sabbath. Jon refuses to work on Tuesdays. He is terminated. Jon sues the employer, alleging religious discrimination. The employer defends by saying that (1) Jon was not of this religion when he was hired, (2) Tuesday is not a valid Sabbath day, and (3) any religious group that celebrates a Sabbath on Tuesday is not a valid religion and the employer does not have to honor it. Are any of the employer’s defenses valid?

Statutory Basis

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion . . . or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s religion . . . [Title VII of the Civil Rights Act of 1964, as amended; 42 U.S.C. § 20002-2(a).]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . [First Amendment to the U.S. Constitution.]

This Is Not Your Parents’ Religious Discrimination

•A medical services company paid out $170,000 to settle a religious discrimination suit filed by employees required to spend at least half their workdays in courses that involved Scientology religious practices such as screaming at ashtrays, staring at someone for eight hours without moving, or being connected to an “E-meter,” which Scientologists believe measures religious devotion.1

•The owner of a logistics company took an employee to lunch and told her that she needed “to examine her walk with Jesus” and be a better Christian. She was later demoted and her job given to a younger man with no experience.2

•After a seven-year investigation, major shipping company J.B. Hunt entered into a settlement agreement with four of its employees to address complaints from Sikh truck drivers about religious discrimination stemming from them not being hired or being terminated when, in conformity to their religious page 533dictates, they declined to remove their turbans or cut their hair for pre-employment drug tests, when other drug tests were available that would not go against their faith.3

•A hospital employee sues her employer for religious discrimination when she is terminated for refusing to take a required flu shot because she said she was vegan.4 Another employee sought EEOC guidance as to whether an employer could require verification from clergy or others who could attest that the religious belief for seeking to be excused from the flu requirement was sincerely held (the answer was yes, an employer could seek this information).5

•The EEOC sued an employer for terminating an employee of over 35 years who repeatedly told the company that the use of its new biometric hand scanner to track employee time and attendance violated his religious beliefs as an Evangelical Christian and the company refused to consider alternate means of tracking time and attendance even though it would have been easy and they were doing it for employees without fingers.6

•A California car dealership agreed to pay $400,000 to five Afghan-American employees who were singled out in a staff meeting and called names by the general manager, who threatened to “blow them up with a grenade.” When they reported this to upper management, they were met with further harassment and job scrutiny. After quitting, several joined the U.S. military.7

•A Home Depot employee sues his employer for terminating him after the employee refuses to stop wearing a button he had worn for over a year that said “One nation, under God, indivisible” in honor of his brother who was in the National Guard and set to report for a second tour of duty in Iraq.8

•Grammy-winning musician Carlos Santana (“You’ve Got to Change Your Evil Ways”) is sued for unjust dismissal by a former personal assistant who claims Santana and his wife made the employee visit a chiropractor to be tested for his “closeness to God.” Mrs. Santana said that when prospective employees were being evaluated for hire, she had the chiropractor “calibrate” them, as the more the chiropractor “enlightened” employees through treatments, the closer to God they became and the better employees they become.9

•An employee sues to have the court impose an injunction allowing her to say “have a blessed day” in written communications to clients and customers.10

•A Starbucks server sues Starbucks for retaliation after she refuses to remove her Wiccan symbol necklace and her hours are reduced, she is not promoted or transferred, and her tardiness is scrutinized.11 The same thing happens at Google.12

•An employee sues after being terminated for eating a bacon, lettuce, and tomato sandwich (BLT) at work, in violation of the “no pork or pork products” rule put in place in deference to Muslim employees and clients.13

•Seven female employees at Belmont Abbey College, a small Catholic institution in North Carolina, claim discrimination against them due to the college’s refusal to cover prescription contraceptives in its health insurance plan.14

•page 534As more Muslim employees enter the workplace, they are running into trouble as dictates of their faith conflict with workplace duties, policies, and the other non-Muslim employees there. For instance, the BBC in London found that job seekers with English-sounding names were offered three times the number of interviews than those with Muslim names.15 And two Muslim truckers were awarded $240,000 after they were fired for refusing to deliver beer because Muslims are forbidden from handling alcohol.16 A Muslim ExpressJet flight attendant was suspended for refusing to serve alcohol on a flight.17 A Muslim employee in Michigan won nearly $1.2 million from a jury after being taunted, harassed, and discriminated against at work because of his religion, race, and his long beard.18 In Minnesota, the Metropolitan Airports Commission cracks down on Muslim taxi drivers (about one-third) for refusing to pick up passengers carrying alcohol they say violates their religion.19

•General Motors wins a lawsuit by an employee who wants to form a Christian group at work like other affinity groups, claiming it is religious discrimination to allow those and not the Christian one. The court held that GM had no religious groups, so refusal to have a Christian one was not religious discrimination.20

•Pharmacists with religiously based objections to premarital sex or abortion are disciplined for refusing to fill prescriptions for birth control pills or the morning after pill.21

•An Indiana state police officer is terminated for refusing a casino detail, saying gambling or being around it is against his religion.22

•Employees whose religion requires them to “witness” or proselytize sue for the right to do so to their fellow employees in the workplace.23

•The New York Police Department previously found liable for religious discrimination for banning the wearing of a turban on the job by Sikhs, decides to allow the wearing of their beards and turbans.24 The Army also cannot require special testing of a Sikh officer.25

•Alabama Supreme Court Chief Justice Roy S. Moore is removed from office for refusing a court’s order to remove a 5,280-pound granite carving of the Ten Commandments from the courthouse rotunda.26

•Oklahoma City agrees to pay $20,000 in attorney fees for two employees who filed a lawsuit over Christmas decoration policies requiring them to remove a religious decoration on a filing cabinet, remove a Bible from a break room, and cancel an annual break-room Christmas party that included an opening prayer.27

•A television producer is fired for complaining about the company including biblical scriptures inside paycheck envelopes and promoting office Bible study.28

•Muslim Target cashiers in Minneapolis are shifted to other jobs as a religious accommodation after refusing to scan pork products because it conflicts with their religion’s ban on pork.29

•A soldier sues the Army, saying that his atheism led to threats in a culture that tilts heavily toward evangelical Christianity.30

•page 535An AT&T employee is terminated for refusing to sign a “Certificate of Understanding” requiring him to adhere to the company’s diversity policy that conflicted with the employee’s religious beliefs about homosexuality.31

•At Hewlett-Packard, in the same situation, an employee is terminated for refusing to remove biblical scriptures he placed on an overhead bin in his workplace cubicle, hoping his LGBT co-workers would see them, be hurt, repent, and be saved.32

•Minnesota employees who bring their Bibles to the diversity session on working with LGBT employees sue their employers, saying punishing them for this was a violation of their constitutional rights.33

•The EEOC sues Grand Central Partnerships on behalf of four Grand Central Station security guards who said the policy requiring them to tuck their dreadlocks under their uniform caps discriminates against their Rastafarian beliefs.34

•An employee belonging to the World Church of the Creator that teaches that “all people of color are savages who should go back to Africa and the Holocaust never happened and if it did, Nazi Germany would have done the world a tremendous favor” sues his employer after being terminated for giving a newspaper interview espousing these views. He wins.35

The face of religious discrimination has changed dramatically in just the past few years. Of course, in each of these situations, the employer argued that he or she had a workplace policy against religious discrimination and that they never engage in such discrimination. Without guidance, it can be difficult to know. And those were just examples of religious issues in the workplace. That doesn’t even include recent issues outside the workplace that also form a part of the religious landscape. Examples include things like the “Trump effect” causing a national security concern for the military because members of the military have formed a group of extreme Christians who are harassing, bullying, and otherwise mistreating Catholics, Jews, and other religious groups36; the armed forces settling a lawsuit by agreeing to add to the 38 existing religious symbols it permits on military burial monuments the Wiccan pentagram symbol37; the speedy removal (after a “firestorm of criticism”) of a New York billboard promoting a budget brand of vodka implying Jews were cheap (complete with a long-haired dog wearing a yarmulke and a smaller dog wearing a Santa hat) by stating: “Christmas quality, Hanukkah pricing”38; the Colorado high school student who quit the high school choir over an Islamic song praising Allah included for diversity purposes39; the Catholic schoolteacher who was terminated because she and her husband underwent in vitro fertilization treatment, which the church said was against its teachings40; a New York restaurant allegedly discriminating against Jews dressed in religious garb by requiring them to pay a $25 minimum per person to sit at the bar, complete with code words to alert the maitre d’ of such people asking to be seated41; Louisiana State University administrators taking heat for removing images of the Christian crosses worn by several members of the Painted Posse fans42; the Kountze County, Texas, school district administrators’ ban on cheerleaders holding banners bearing Bible verses during athletic events43; the U.S. Supreme Court case challenging the pledge of page 536allegiance phrase “One nation under God”44; the Supreme Court’s decision on the exhibition of Ten Commandment monuments on federal or state premises45; the Amish challenging the use of the bright orange triangles on their buggies for safety purposes, whose color and shape deeply offend their religious sensibilities46; the University of Georgia Jewish cheerleader (one of our students) who alleged that the Christian cheerleading coach did not appoint her to the prestigious football cheering squad because she did not participate in pregame prayers or attend Bible studies held in the coach’s home47; the female Muslim University of South Florida basketball player who voluntarily resigned from the team after the coach refused to allow her to wear a uniform with long pants, long sleeves, and a head scarf in conformity with her religious dictates48; on the other hand, the March 2017 issue of Oprah magazine contained a story on a new line of activewear hijabs for Muslim female basketball players.49 There are many more we could add, but one thing is for sure: religious discrimination is no longer the backwater issue of Title VII that it once may have been perceived to be.

Religious discrimination has certainly come a long way from what was likely envisioned by our forefathers when they wrote its protection into our Constitution. As a nation of immigrants, the United States has always had a diversity of religions among its people. However, with the change in immigration laws causing a growing influx of even more types of people from around the world, each expecting the freedom of religion that the Pilgrims left England for and the founding fathers felt strongly enough about to include in the constitution of its fledging republic, the face of what many of us have come to expect when we think of religious discrimination has changed. (See Exhibits 11.1, “Major Religions of the World—Ranked by Number of Adherents,” and 11.2, “Major Religions and Denominations in the United States.”)

Exhibit 11.1 Major Religions of the World—Ranked by Number of Adherents

Sizes shown are approximate estimates and are here mainly for the purpose of ordering the groups by size, not to provide a definitive number. (This list is sociological/statistical in perspective.)

“Major Religions of the World,” adherants.com, 2014. Copyright © 2014 by adherants.com . All rights reserved. Reprinted by permission.

Exhibit 11.2 Major Religions and Denominations in the United States

Top Organized Religions

Christianity76.5%

Judaism 1.3

Islam 0.5

Buddhism 0.5

Hinduism 0.4

Unitarian Universalist 0.3

Wiccan/Pagan/Druid 0.1

Largest Denominational Families

Catholic24.5%

Baptist16.3

Methodist 6.8

Lutheran 4.6

Pentecostal 2.1

Presbyterian 2.7

Mormon 1.3

Nondenominational Christians 1.2

Church of Christ 1.2

Episcopal/Anglican 1.7

Assemblies of God 0.5

Congregational/United Church of Christ 0.7

Seventh Day Adventist 0.3

“Major Religions of the World,” adherants.com, 2014. Copyright ©2014 by adherants.com. All rights reserved. Reprinted by permission.

Religion has unique significance in our country’s creation and development. In the 16th century, when the Catholic Church did not allow King Henry VIII to divorce his wife, Catherine of Aragon, to marry Anne Boleyn, Henry broke with Rome. This led to the establishment of a separate national church in England under the supreme headship of the king. Henry VIII was allowed to divorce Catherine (he eventually took six wives) and marry Anne, whom he ordered beheaded in 1536.

The aftermath of Henry’s maneuvers was that the church became inextricably woven into the government, and religious freedom was virtually nonexistent in the government from which America was born. The right to practice religion freely and not be required to blindly accept the government’s state-imposed religious beliefs was a large part of what made the Pilgrims break away from Great Britain and its Church of England more than a century later.

Of course, this is only a simplified version of a very long and complex developmental process for our relationship as a country with religion. But the end product was that, rejecting the tyranny of this state-imposed religion, religious freedom was included in the U.S. Constitution, and freedom of religion has since always been highly valued and closely held, and has enjoyed a protected position in American law.

Title VII embodies this protection in the employment arena by prohibiting employment discrimination based on religious beliefs or practices. While litigation on the basis of religious discrimination may not occur as frequently as some of the other categories, or have as high a profile, it is just as important a concern for employers. The percentage of claims may seem small, but the more important factor is that there has been a steady increase in claims since 1993 and an absolute spike after the terrorist events of September 11, 2001. In FY 2016, religious discrimination accounted for 4.2 percent of charges filed with the EEOC. That was 3,825 charges, compared to 32,309 for race (35.3 percent) and 26,934 for gender (29.4 percent). In 1997, the percentage was 2.1 with 1,709 charges. In just under twenty years the number of charges has more than doubled.50

However, religious discrimination is no less important. It is clear that this issue has taken on an even more pressing note since the tragic events of September 11, 2001. According to the EEOC, federal, state, and local fair employment practice agencies documented a significant increase in the number of charges of workplace harassment and discrimination claims based on national origin (with those perceived to be of Arab and South Asian descent being the target) and religion (Muslims, Sikhs) since then. Employment discrimination claims increased by 4.5 percent from 2001 to 2002, with much of that increase coming from ethnicity and religion after 9/11. According to the Tanenbaum Center for Interreligious Understanding’s annual survey of American Workers and Religion in 2013, 20 years ago the anti-Muslim discrimination primarily involved dress codes or policies on religious holidays. Today the conflicts are more personal, such as name calling or offending jokes; it’s typically personal prejudices between employees or between an employee and a supervisor.51 A Carnegie Mellon University experiment involving dummy résumés and social media profiles found that between 10 and 33 percent of U.S. firms searched social networks for information on job applicants early in the hiring process and candidates whose public Facebook profiles indicated page 539they were Muslim were less likely to be called for interviews (2 percent) than Christian applicants (17 percent).52 We also earlier mentioned the British study, which would, in all likelihood have similar results here in the United States, that applicants with Muslim-sounding names would be far less likely to have their résumés chosen for an interview. In fact, in issuing a new comprehensive directive on religious discrimination for the EEOC Compliance Manual in 2008, the EEOC noted that claims of religious discrimination had doubled between 1992 and 2007 and that as religious pluralism has increased, questions about religious discrimination have increased.53

But diversity consultants agree that employers who adapt and reduce conflict, improve morale and performance “by attracting the best talent from a broad range of backgrounds that can help the company appeal to a larger customer base.”54 All this at a time when the Pew Research Center said that in their 2014 Religious Landscape Study, the number of atheists went up from 1.6 percent in a similar study in 2007, to 3.1 percent in 2014. Another 4 percent say they are agnostic, up from 2.4 percent in 2007. The proportion of Americans who say they are religious has fallen from 78.4 percent in 2007 to 70.6 percent in 2014. Eighty-three percent identify as Christian. The most growth was in non–Christian faiths and those who were unaffiliated. Non–Christian went up from 4.7 percent in 2007 to 5.9 percent in 2014.55

Actually, the increase in litigation involving religious issues began when issues of workplace activities and harassment issues surrounding religious practices became more prominent in the late 1980s and early 1990s with the rising popularity of Fundamentalist Christianity and televangelism. Many of the Fundamentalists, commonly referred to as “born-again Christians,” ran into trouble when, as an article of faith, they attempted to share their religion with others in the workplace, sometimes whether the co-worker wished to have it so or not. On the other hand, Fundamentalists experienced trouble when they were mocked, teased, or otherwise singled out for their religious beliefs at work.

In fact, a survey reported that 40 percent of white evangelical Christians said they face “a lot” of discrimination and 59 percent of them say discrimination against Christians has become as big a problem as discrimination against other religious groups. “At the same time, evangelicals were the most likely to say there is little to no discrimination at work against other religions, racial, gay and lesbian and other groups.”56

As you saw from the beginning of the chapter, these religious discrimination issues have now extended into areas surrounding the practices and dictates—and harassment—involving those of primarily Middle Eastern religions. Can a Sikh be required to remove his religiously dictated turban at work? Can a Muslim woman be terminated for wearing a religiously dictated head covering? Must a Muslim employee be allowed to attend a midday Friday religious service or have a place provided for religion-required prayer five times a day? Can a Muslim taxi driver refuse to pick up fares that have liquor? Can a grocery store cashier refuse to touch pork, saying it is against her religion? All of these issues and those mentioned at the beginning of the chapter have been a part of the post–September 11, 2001, landscape and must be addressed consistent with Title VII and other legal dictates.

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Federal and state constitutional guarantees of due process, equal protection, and freedom of religion also provide protection for federal, state, and local government employees. If the employer is a governmental entity, the employer must avoid workplace policies that have the effect of tending to establish or to interfere with the practice of the employee’s religion. In determining whether the employer has discriminated on the basis of religion, the court must sometimes first address whether even deciding the issue entangles the government excessively in the practice of religion. Title VII is the only legislation specifically prohibiting religious discrimination in employment, and consideration is given to constitutional issues where necessary.

Unlike the other categories included in Title VII, there is not an absolute prohibition against discrimination on the basis of religion. Rather, under Title VII, we see for the first time a category that has built into it a duty to reasonably accommodate the employee’s religious conflict unless to do so would cause the employer undue hardship. There is no such reasonable accommodation requirement for race, gender, color, or national origin, but there is under the Americans with Disabilities Act (ADA) as we shall see in that chapter. However, the nature of the accommodation in the ADA is quite different.

duty to reasonably accommodate: The employer’s Title VII duty to try to find a way to avoid conflict between workplace policies and an employee’s religious practices or beliefs.

undue hardship: A burden imposed on an employer, by accommodating an employee’s religious conflict, that would be too onerous for the employer to bear.

To a great extent, religious organizations are exempt from the prohibitions in Title VII. As a general rule, they can discriminate so that, for instance, a Catholic church may legitimately refuse to hire a Baptist minister as its priest. Section 703(e)(2) of Title VII states that it is not an unlawful employment practice for a school, college, university, or other educational institution to hire or employ those of a particular religion if the institution is in whole or in substantial part owned, supported, controlled, or managed by that religion or by a religious corporation, association, or society or if its curriculum is directed toward the propagation of a particular religion. That is, religion is recognized as a basis for a BFOQ reasonably necessary to the normal operation of that particular business or enterprise under section 703(e)(1) of Title VII. If the church has nonsectarian activities such as running a day care center, bookstore, or athletic club, it may enjoy the same broad type of freedom to discriminate on the basis of religion since these activities may have religion or propagation of the religion as an integral part of their purpose. Employers should be cautioned that the specific facts play an important role in making this determination. In Corporation of the Presiding Bishop of the Church of Jesus Christ of Latterday Saints v. Amos,57 the U.S. Supreme Court upheld the church’s termination of a janitor in the church-owned gym for not paying his dues and keeping current his church affiliation card. In the Court’s determination, the gym had been conceived as a manifestation of dedication to their religious beliefs and terminating the janitor for his failure to maintain his membership in the denomination did not violate the law.

For the first time, in 2012 the U.S. Supreme Court took a close look at the “ministerial exception” to Title VII that had been granted in federal lower court decisions. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,58 the Court unanimously determined that religious organizations have full authority to determine who their religious leaders are and to apply their religious dictates page 541even when those dictates conflict with workplace antidiscrimination laws. In the Tabor case, a teacher with narcolepsy was terminated after taking leave. When she sued under the Americans with Disabilities Act, she lost. The church argued that she was a religious minister in addition to being a teacher, and as such, they had the right to fire her if they wished. The decision left open exactly which employees qualify as being within the ministerial exception. In this case, the employee was primarily a teacher, but she was also a religious leader. The fact that she only performed the primarily religious duties for a small part of her work day did not take away her status as a ministerial employee under the ministerial exception. In the high court’s determination, the First Amendment’s guarantee of freedom of religion shields churches and their operations from the reach of the antidiscrimination laws when the issue involves religious employees of these institutions. In their view, religious organizations are the best judge of whether ministerial employees should be terminated. To hold otherwise would create unconstitutional excessive entanglement of the government in the affairs of the religious organization.

Before Title VII, it was fairly routine for employers to be nearly as adamant about not hiring those of certain religious faiths, such as Jews, as it was about not hiring people of a certain race, ethnic background, or gender. Universities routinely imposed quotas on the number of Jewish students they would accept, just as restrictive covenants in real estate contracts routinely prohibited the sale of property to Jews, African-Americans, Asians, and others. The issue has usually been more covertly handled, but it existed extensively, nonetheless. Title VII was enacted to remedy such practices in the workplace, just as fair housing legislation now prohibits restrictive covenants.

Some have still not gotten the message. In 2011, a Jewish hockey player for the National Hockey League’s Anaheim Ducks sued the organization for what he called a “barrage of anti-Semitic, offensive and degrading verbal attacks regarding his Jewish faith” from the head coach. The coach said he did not intend the comments to insult or hurt him in any way.59 In 2010, the EEOC settled a case with Administaff, Inc., on behalf of two Jewish brothers for $115,000. They were called “dirty Jew” and “dumb Jew” and subjected to other anti-Semitic comments. They also had their work vehicle defaced with a swastika and were forced into a trash bin for the amusement of managers watching on surveillance cameras, calling it “throw the Jew in the Dumpster.”60 A 2009 lawsuit by two Jewish teachers contained dozens of pages describing religious discrimination by their colleagues and former principal.61 And in 2008 two Army drill sergeants were reprimanded for religious discrimination against a Jewish soldier who they called “Juden,” the German word for Jews. They also made him remove his yarmulke religious head covering. The soldier was later beaten so badly by other soldiers that he was treated at a hospital.62

In 2012, an employee who was constantly harassed by co-workers after converting to Islam won $5 million in punitive damages from AT&T when she was able to show constant abuse that took place after she became a Muslim. The last straw for her was when her manager snatched off her hijab and exposed her hair.63 In 2013, the EEOC sued a transport company for failing to attempt page 542to accommodate two Muslim employees and firing them for refusing to deliver alcohol, when they could have been accommodated without undue hardship.64 In 2011, Hertz suspended 34 Muslim drivers who they claim took a longer time to pray than agreed to in their union contract.65

The more frequent basis for lawsuits today is that an employee is not hired or is terminated because of some religious practice that comes into conflict with the employer’s workplace policies. The employee may refuse to work on a particular day because it is the employee’s Sabbath. Or the employee may dress a certain way for religious reasons, or wish to take certain days off for religious holidays or observances. When it conflicts with the employer’s policies and the employee refuses to attempt to accommodate the conflict, the employee is terminated and Title VII comes into play.

For instance, the EEOC sued Convergys Corporation because an applicant who was a Hebrew Israelite and could not work on his Sabbath (Saturday) from sunup to sundown was told by the interviewer that unless he could work on Saturdays, the interview was over.66 Ivy Hall Assisted Living paid an employee $43,000 in a settlement after she sued when the employer refused to allow her to wear her Muslim hijab. In fact, the employer insisted that she remove the hijab and refrain from wearing it as a condition of continued employment.67 This latter issue has arisen in several different contexts, including an applicant who was told by Abercrombie & Fitch that the hijab she refused to take off if hired violated the Abercrombie & Fitch “Look Policy.”68 This case, EEOC v. Abercrombie & Fitch, went all the way up to the U.S. Supreme Court, which issued a decision in 2015 that we include for you in the case section at the end of this chapter.

In Tyson v. Clarian Health Partners, Inc., the employer was faced with what to do with a Muslim employee working in the hospital who used an empty hospital room to perform her ablutions (ritual washing up) before praying, in violation of hospital rules. When an employee of Sweetwater Healthcare Center who had worked most of her three years at the facility without being forced to work on Sundays told the new administrator that her religion prohibited her from working on Sundays, she was told that “God would excuse her since she worked in the healthcare field,” and that she could “either report on Sundays or lose her job.”69

Frequently the employer discovers religious information through questions on an employment application or during a preemployment interview, either of which generally relates to notifying a religious figure or taking the employee to a particular hospital in the event of on-the-job injury. If the question is asked, the applicant has a right to think it is asked for a reason and will be taken into consideration. The employer may have the question for totally different reasons than the applicant thinks, but once the question is there, it can be left up to unintended interpretations. To eliminate the appearance of illegal consideration of religion in hiring, employers should, instead, ask such questions after hire and then simply ask who should be notified or what hospital the employee prefers.

In this chapter, we will learn what is meant by religious discrimination, what the duty to accommodate involves, and how far an employer can go in handling management considerations when religious conflict is at issue.

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What Is Religion?

Title VII originally provided no guidance as to what it meant by the word religion. In the 1972 amendments to Title VII, Congress addressed the issue. In section 701, providing definitions for terms within Title VII, section (j) states: “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

The question frequently arises: “What if I never heard of the employee’s religion? Must I still accommodate it?” The answer is based on two considerations: whether the employee’s belief is closely held and whether it takes the place of religion in the employee’s life. The latter requirement means that even atheism has been considered a “religion” for Title VII purposes. If the answer to both queries is yes, then the employer must accept the belief as a religious belief and attempt accommodation for conflicts.

image

The religious belief need not be a belief in a religious deity as we generally know it. However, courts have determined that groups like the Ku Klux Klan are political, not religious, organizations, even though their members have closely held beliefs. The employer need not previously know of, or have heard of, or approve of the employee’s religion in order to be required to accommodate it for Title VII purposes. Also, the employer cannot question the sincerity of the belief merely because the employer thinks the religion is strange. In Frazee v. Illinois Department of Employment Security70 the employee asserted he could not work on the Sabbath because he was a Christian even though he did not attend church. The U.S. Supreme Court held that the employee need not be a member of an organized religion at all. The case involves the Free Exercise Clause of the First Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment, but the considerations are similar to those of Title VII. This is why in Opening Scenario 1 the Sikh need not stop wearing his religiously mandated turban simply because other employees are “uncomfortable.” That is to say, they are unfamiliar with the employee’s religion and religious dictates and his wearing of a turban seems strange to them.

Perhaps the single most-asked question in this area is: “Must I accommodate the employee’s religious conflict if the conflict did not exist when the employee was hired?” The answer is yes. The duty attaches to the conflict itself, not to when the conflict arises. The idea behind the question is that if the employer had known of the conflict, then he or she would not have hired the employee in the first place. It is illegal to use the religious conflict, alone, as a basis for not hiring the applicant. So, legally, it does not matter whether the conflict was present when the applicant was hired or arose later; there is still a duty on the employer to attempt to accommodate the religious conflict. The duty to accommodate, however, is only to the extent that it does not cause the employer undue hardship. What constitutes undue hardship will be discussed shortly.

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The duty to accommodate only applies to religious practices, not religious beliefs. An employer is only required to accommodate a religious practice to the extent that it does not present an undue hardship on the employer, but religious beliefs do not have that limitation. That is, no matter how unorthodox, or even outrageous, an employee’s religion may seem to the employer, the employer cannot take an adverse employment action against the employee simply because the employee holds that religious belief. In Peterson v. Wilmur Communications, Inc., given at the end of the chapter, the employer was called upon to deal with a religion espousing racial separation much like the Ku Klux Klan. The court determined that the religion, as unorthodox, and even as repulsive, as it was, was required by Title VII to be treated just like any other religion for Title VII purposes.

Religious Conflicts

Imagine mass firings of Muslim employees who walk off the job over prayer disputes. The workers ask management to adjust their evening break time so they can pray at sunset as required; management agrees, then reverses its decision when non-Muslim employees protest. This occurred in Colorado and Nebraska and about 200 employees were fired.71

Workplace conflict between employee religious practices at odds with workplace policies is probably the most frequent type of religious discrimination case there is, and as we discussed earlier, the numbers are growing. That is, it is not so much that the employer dislikes a particular religion and refuses to hire members of that religion; rather, it is that the employee may engage in some religious practice that is not perceived to be compatible with the workplace. For instance, the employer may have a no-beard policy, but the employee’s religion forbids shaving; the employer may have a policy forbidding the wearing of headgear, but the employee’s religion requires the wearing of some sort of head cover; the employer may have a policy forbidding the wearing of long hair on males, but the employee’s religion forbids the cutting of male hair except in certain limited circumstances; or the employer may have a policy that all employees must work on Saturdays, but the employee’s religious Sabbath may be on Saturday and followers may be forbidden to work on the Sabbath.

In fact, sometimes the conflict comes not with the employee’s religion, but with that of the employer.

In order for an employee to proceed with a claim of religious discrimination, he must first establish a prima facie case by establishing that

1.He holds a sincere religious belief that conflicts with an employment requirement.

2.He has informed the employer of the conflict.

3.He was discharged or disciplined for failing to comply with the conflicting employment requirement.

If an employee establishes a prima facie case, the burden shifts to the employer to show that it offered a reasonable accommodation to the employee or that it could not reasonably accommodate the employee without incurring undue hardship.

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As more and more employees come into the workplace who are not of the “traditional” religions with which an employer may be more familiar, and these employees have an expectation of being accommodated in accordance with the law, employers will need to learn to effectively handle the religious conflicts that arise. The religious conflicts serving as the basis for discrimination claims have become more and more fascinating over the years. Recent conflicts have included such diverse situations as a woman suing for religious discrimination because her religion does not allow her to wear men’s clothing (i.e., pants), but her employer required pants as part of her uniform72; a Jehovah’s Witness suing Chi-Chi’s Mexican restaurant for religious discrimination after being fired for not adhering to Chi-Chi’s policy of all employees singing birthday songs to patrons on their birthday because the policy conflicted with her religion, which does not observe personal birthdays, believing they arise out of pagan celebrations73; a Jehovah’s Witness suing Belk department store for being terminated when she refused to wear a Santa hat and apron because, again, her religion prohibited recognizing holidays74; an employee refusing to answer the telephone with the hotel’s required “happy holidays” (rather than “Merry Christmas”) greeting during the Christmas season, claiming her religious beliefs prohibited her from doing so75; a strict vegetarian bus driver being fired for refusing to hand out coupons to riders for free hamburgers as part of a promotion between the bus company and a hamburger chain76; a counselor with the Centers for Disease Control and Prevention (CDC) who describes herself as a “devout Christian,” who, believing that her religion prohibited her from encouraging or supporting same-sex relationships through counseling, told a lesbian seeking counseling for trust issues that the employee’s counseling needs conflicted with the counselor’s religious beliefs and she therefore could not provide counseling because of her own “personal values”77; and an employee suing Walmart for religious discrimination when it fired her for screaming at a lesbian employee that God does not accept gays, they should not “be on earth,” and they will “go to hell” because they are not “right in the head.”78 We are giving you so many of these examples because we want you to be prepared; religious conflicts come into the workplace in an awful lot of ways, and the more examples you see, the better equipped you are to make defensible workplace decisions. We are also giving you these examples because religious conflicts in the workplace are, in all likelihood, bound to rise as the so-called Religious Liberty executive order signed into law by President Trump on May 4, 2017, begins to take effect.

The key is for an employer to make sure that the basis for the employee’s conflict is a religious one and then to try to work out an accommodation. Once the employer is aware of the conflict, the employer must attempt a good-faith accommodation of the religious conflict and the employee must assist in the attempted accommodation. If none can be worked out and the employer has tried everything available that does not present an undue hardship, then the employer has fulfilled his or her Title VII obligation and there is no liability, even if the employee’s religious conflict cannot be accommodated. Of course, because of the diversity of religious conflicts that are possible, there is no single set of rules that can be provided that will cover all religious conflicts.

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In Goldman v. Weinberger,79 for example, the issue of conflict arose in the context of the military where a rabbi’s wearing of the Jewish yarmulke head covering under his military uniform violated military dress regulations. The regulation was upheld by the U.S. Supreme Court. We mention this case for several reasons. First, it presents a conflict between religious practice (wearing a yarmulke) and work (being a member of the military). It also allows you to understand the U.S. Supreme Court’s position on matters military and how they interact with Title VII and other protective legislation. As we are discussing Title VII, students frequently ask how the military can have the rules it has, which seem to be at odds with Title VII.

Our answer is that the Court tends to view the military as being in a class all its own for most purposes. The military’s need for “good order,” cohesion, instant and unquestioning obedience, esprit de corps, morale, and other such interests usually results in the Court deferring to the military when there are conflicts. We also wanted to reiterate that the right to be free of religious discrimination is not absolute. There are limitations to the right where there may be overriding considerations such as the military cohesion in Goldman or the undue hardship on the employer under Title VII. With this said, we should also note that in January 2014, the U.S. military relaxed its rules when it comes to the wearing of beards, Sikhs wearing turbans, Jews wearing yarmulkes, and Wiccans. Individual members of the armed forces can now request personal exemptions from the requirements and they will be examined on a case-by-case basis.80

Not every conflict involving religion will necessarily be a religious conflict recognized by the law. Think about the description of the Walmart employee who was terminated for violating Walmart’s Discrimination and Harassment Prevention Policy by screaming at the lesbian employee. She was not terminated because of her religious beliefs, as she argued, but instead for violating Walmart’s policy by harassing an employee. The decision to terminate was based on the employee’s conduct, not on her religious beliefs.81 In Lumpkin v. Jordan,82 the legitimate non-discriminatory basis for termination was not deemed a religious conflict at all, even though it involved religion to an extent. In Jordan, a member of the San Francisco Human Rights Commission, who was also a minister, had religious beliefs in conflict with sexual orientation that put him at odds with the Commission’s work in enforcing non-discrimination laws, including on the basis of sexual orientation. The court upheld his termination, despite the minister’s religious beliefs, since it conflicted with the very purpose of his job and its duties.

Employer’s Duty to Reasonably Accommodate

Again, unlike the other categories under Title VII, the prohibition against religious discrimination is not absolute. An employer can discriminate against an employee for religious reasons if to do otherwise causes the employer undue hardship. When the employer discovers a religious conflict between the employer’s policy and the employee’s religion, the employer’s first responsibility is to attempt accommodation. page 547If accommodation is not possible, the employer can implement the policy even though it has the effect of discriminating against the employee on the basis of religion.

The duty to reasonably accommodate is not a static concept. Due to the nature of religious conflicts and the fact that they can arise in all types of contexts and in many different ways, there is no one single action an employer must take to show that she or he has reasonably accommodated. It depends on the circumstances and will vary from situation to situation. For example:

•The employer owns a sandwich shop. The employer’s policy entitles employees to eat all the restaurant food they wish during their meal break, free of charge. An employee’s religion does not allow eating meat. Aside from the meat used for sandwiches, the employer has little else, other than sandwich trimmings like lettuce and tomatoes. The employee alleges it is religious discrimination to provide the benefits of free meals that the employee cannot eat for religious reasons while other employees receive full free meals. The duty to accommodate may be as simple as the employer arranging to have peanut butter and jelly, eggs, or a variety of vegetables or pasta available for the employee.

•The employer requires employees to work six days per week. An employee cannot work on Saturdays due to a religious conflict. The accommodation may be that the employee switches days with an employee who does not wish to work on Sundays—a day that the employee with the religious conflict is available to work—or the employee switches to a job that does not require working on Sunday.

•Employer grocery store has a policy requiring all counter clerks to be clean-shaven, to present the employer’s view of a “clean-cut” image to the public. An employee cannot shave for religious reasons. The accommodation may be that the employer switches the employee to a job the employee can perform that does not require public contact such as stocking shelves or handling paperwork. Or, as the case with the U.S. military and the New York police officers, the true purpose of the policy can be reexamined to see if there is an actual need for the policy, and if so, whether there are alternatives than can be used. In the case of the New York police officers, the court was able to show in the case mentioned earlier in the chapter that the clean-shaven policy that was in place for the use of gas masks and used against Hasidic Jews and Sikhs, did not apply to undercover police officers. As we mentioned earlier, in December 2016, the NYPD announced a new policy allowing Sikh officers to wear their turbans and beards.

If it can be shown that the employer reasonably accommodated or attempted to accommodate the employee, then the employer is relieved of liability. In Wilson v. U.S. West Communications,83 the Catholic employee believed she should be “an instrument of God like the Virgin Mary,” and wear a button showing a color photo of an 18-week fetus until abortion was outlawed. The button was offensive and disturbing to other employees for reasons unrelated to abortion such as infertility, miscarriages, and the death of a premature infant. The employer considered it a “time robber” since employees were upset and gathered to discuss it. The employer gave her the option of only wearing it in her cubicle or covering it. This was unacceptable to the employee and she sued. The court found the employer’s page 548accommodation to be reasonable, but also found that the employee’s claim of the problematic activity of “needing” to wear an antiabortion button with a graphic picture of a fetus on it was not based on religious requirements.

Similarly, in EEOC v. Firestone Fibers & Textiles Company,84 the Fourth Circuit found that an employer met the accommodation requirements for the employee’s religious beliefs prohibiting him from working on his Sabbath from sundown Friday to sundown Saturday and on seven religious holidays during the year. The employer sought an accommodation by altering his Friday work shift where it could and using the collective bargaining agreement’s seniority system. But the employee requested 11 additional days to observe two religious holidays and was terminated when he violated the company’s attendance policy prohibiting taking over 60 hours of unpaid leave. So, too, when a Home Depot employee who wore a “One nation under God” button on his work apron, in violation of the store’s policy against wearing religious buttons, was given the option to wear a company pin saying United We Stand.85

If an accommodation cannot be found, as Williams v. Southern Union Gas Company86 demonstrates, the employer’s duty is discharged. The Williams case involved an employee who was terminated for not working on Saturday, his Sabbath. The court upheld the termination because it found that the employer had tried to accommodate the employee’s religious conflict, but the only way it could have been done would have caused the employer undue hardship. This case is the basis for Opening Scenarios 2 and 3. The important factor is for the employer to make a good-faith attempt at an accommodation rather than simply dismissing the conflict without even trying to do so. Recall the case mentioned previously where the Hebrew Israelite was told by the interviewer that if he could not work on Saturdays (because it was his Sabbath), the interview was over. That sort of refusal to even try to accommodate is what the law prohibits.

Even where an employee’s activity is religiously based, it need not be accommodated if doing so presents real problems for the employer. In the very interesting Chalmers v. Tulon Company of Richmond case, included at the end of the chapter, the employee believed it to be her religious duty to write letters to her co-workers telling them what she perceived as their religious shortcomings. When one letter led to an employee’s wife thinking he had an affair, the court refused to find a basis for accommodation, even though the employee claimed she was doing what her religion dictated she do.

There have been other types of manifestations of religious dictates employers and others have had to address. In one case, a Wisconsin woman’s religious leader of the Order of the Divine Will told her that a 90-year-old woman who died would come back alive if she allowed the corpse to sit on the toilet in her home. The homeowner’s children were told by the religious leader that demons were destroying the corpse’s appearance as she decayed in the bathroom to make it look like she would not rise from the dead. Police officers finally discovered the rotting body in the “stench filled” home.87 A North Carolina teen’s nose piercing got her suspended from school in violation of the county dress code even though she said she and her mother belonged to the Church of Body Modification, which had a clergy, statement of beliefs, and formal process for accepting new members.88

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Employee’s Duty to Cooperate in Accommodation

The U.S. Supreme Court has held that, in attempting to accommodate the employee, all that is required is that the employer attempt to make a reasonable accommodation. If one can be made, then any reasonable accommodation will do and it need not necessarily be the most reasonable accommodation or the one the employee wants. The employee also must be reasonable in considering accommodation alternatives. The protection Title VII provides for employment discrimination on the basis of religion does not mean that the employer must resolve the conflict in the way the employee wants. In Vargas v. Sears, Roebuck & Company,89 the employer attempted to accommodate the Hispanic employee’s Native American religious belief involving letting his hair grow. The employee’s wearing his hair in a pony tail violated the employer’s appearance policy. The employer suggested tucking the pony tail inside the employee’s shirt or jacket, but the employee refused to even consider it and provided no suggestions of his own. The court held that the employee had not shown that the employer failed to attempt to accommodate the religious conflict and the employee’s termination was upheld.

The employer’s only alternative may involve demoting the employee to a job without a conflict or even terminating the employee, depending on the circumstances. This is not prohibited if all other alternatives present the employer with an undue hardship. The EEOC and the courts will look to the following factors in determining whether the employer has successfully borne the burden of reasonably accommodating the employee’s religious conflict:

•Whether the employer made an attempt at accommodation.

•The size of the employer’s workforce.

•The type of job in which the conflict is present.

•The employer’s checking with other employees to see if anyone was willing to assist in the accommodation.

•The cost of accommodation.

•The administrative aspects of accommodation.

Each factor will be considered and weighed as appropriate for the circumstances. If on balance the employer has considered the factors appropriate for the employer’s particular circumstances and accommodation was not possible, there is usually no liability for religious discrimination.

What Constitutes Undue Hardship?

Just as reasonable accommodation varies from situation to situation, so, too, does what constitutes undue hardship. There are no set rules about what constitutes undue hardship since each employer operates under different circumstances. What may be hardship for one employer may not be for another. What constitutes an undue hardship is addressed by the EEOC and courts on an individual basis. page 550

It is clear, however, that the undue hardship may not be a mere inconvenience to the employer. The EEOC has provided guidelines as to what factors it will consider in deciding whether the employer’s accommodation would cause undue hardship.90 Such factors include

•The nature of the employer’s workplace.

•The type of job needing accommodation.

•The cost of the accommodation.

•The willingness of other employees to assist in the accommodation.

•The possibility of transfer of the employee and its effects.

•What is done by similarly situated employers.

•The number of employees available for accommodation.

•The burden of accommodation on the union (if any).

The factors are similar to those used to determine if the employer has made reasonable accommodation. Generally, the EEOC’s interpretation of what constitutes undue hardship and reasonable accommodation has been more stringent than the interpretation of undue hardship by the courts. However, since the EEOC’s guidelines are simply guidelines (though strong, well-respected ones) and thus not binding, and court decisions are, employers must look to the interpretation by courts in their own jurisdictions. Courts have found, among other things, that it would be an undue hardship if an employer had to violate the seniority provision of a valid collective bargaining agreement, to pay out more than a “de minimis” cost (in terms of money or efficiency) to replace a worker who has religious conflicts, or to force other employees who do not wish to do so to trade places with the employee who has a religious conflict. The U.S. Supreme Court’s determination of what constitutes undue hardship was established in Trans World Airlines, Inc. v. Hardison, which still stands today. As you can see, after reviewing the case at the end of the chapter, it did not place an unduly heavy burden on the employer.

Religion as a BFOQ

Title VII permits religion to be a bona fide occupational qualification if it is reasonably necessary to the employer’s particular normal business operations. It also specifically permits educational institutions to employ those of a particular religion if they are owned in whole or in substantial part by a particular religion. In Pime v. Loyola University of Chicago,91 the court looked at whether a historically Jesuit university could have Jesuit membership as a BFOQ for philosophy professors. A Jewish professor applied to teach philosophy in a department that had passed a resolution saying the professors needed to be Jesuits. The court determined that the university could impose such a measure because essential to the mission of the university was to have not just the subject matter presented to students, but to have them exposed to the particular attributes that the Jesuits trained as Jesuits had that was part of the basis of the university. page 551

Religious Harassment

One of the most active areas under religious discrimination lately has been religious harassment. Several factors have come together and caused many employees to decide that expressing their religious views in some way in the workplace is something they are compelled to do, either by their religious dictates or their own interpretation of them.

For instance, employees may feel they must, or wish to, display crosses or other religious artifacts at work; display religious brochures or material on their desk or pass them out to co-workers; hold Bible or other religious study groups during the workday; preach, teach, testify, or “witness” to their co-workers in order to practice their religion; or engage in other such activities. As mentioned earlier, after the events of September 11, 2001, there was an increase in the number of claims of religious harassment. They have continued to grow. It really is quite extraordinary. In one incident cited by the EEOC, a Muslim employee who had experienced no workplace problems before September 11, 2001, reported that afterward none of his co-workers would speak to him and that when they did, they referred to him as “the local terrorist” or “camel jockey.” This has a frequent occurrence across the country for not only Muslims, but for anyone who even appeared to be of Middle Eastern descent. During, and in the wake of the 2016 presidential election, claims have risen even more, with Muslims or those thought to be Muslims being aggressively harassed, even in the workplace, for no reason other than their religion. One Bed Bath & Beyond employee said that his co-workers were fine to him until they found out he was Muslim. He was then harassed, called “Terrorist,” and terminated.92

The New York Times reported that a survey of 743 human resource professionals by the Society for Human Resource Management indicated that the most common religion-related issues among employees are employees proselytizing (20 percent), employees feeling harassed by co-workers’ religious expressions (14 percent), employees objecting to job duties (9 percent), and employees harassing co-workers for their religious beliefs (6 percent).93

This activity surrounding the issue of religious harassment is due, in part, to matters peripheral to workplace religious discrimination. In 1990, the U.S. Supreme Court rejected Native Americans’ argument that they should be permitted the ritual use of the hallucinogenic drug peyote in their tribal religious ceremonies as a part of their First Amendment right to freedom of religion. With tremendous support from many quarters, in 1993 Congress passed the Religious Freedom Restoration Act (RFRA) in order to ensure the free exercise of religious practices. RFRA was an attempt to restore the previous status quo under which religious practices must be accommodated unless a compelling governmental interest can be demonstrated and advanced in the least restrictive manner. In 1997, the U.S. Supreme Court overturned RFRA as giving a governmental preference for religion, in violation of the First Amendment to the Constitution.94

While the matter of religious practices in the workplace was not at issue in these cases or this legislation, the national attention and debate about it, along page 552with a growing religious presence in political issues and the media, extended the religious practices issue to the workplace by extrapolation. When the religious practices were challenged, religious harassment claims rose.

Of course, with all different types of religions in the workplace, it is predictable that there would be religious conflicts and that those with religions considered out of the ordinary or with religious practices that co-workers consider extreme would be the subject of religious harassment. In addition, it is often the nonreligious employees who allege they are being harassed by religious employees. For instance, in a case filed by information systems manager Rosamaria Machado-Wilson of DeLand, Florida, she alleged that she was fired after less than six months on the job after reporting religious harassment to the human resources office of her employer, BSG Laboratories. According to Machado-Wilson, a simple walk to the coffeepot sometimes meant “weaving past prostrate, praying co-workers and stopping for impromptu ceremonies spoken in tongues.” She says she was forced to attend company prayer meetings and be baptized; employees were subjected to inquiries into and comments about their religious beliefs, and those found to be nonbelievers were fired.95

Of course, since Title VII prohibits religious discrimination, it also prohibits religious harassment. EEOC guidelines on liability for workplace harassment explicitly cover religious harassment. In the wake of the RFRA situation, in 1997 President Clinton issued guidelines for the religious freedom of federal employees. The purpose of the guidelines is to accommodate religious observance in the workplace as an important national priority by striking a balance between religious observance and the requirements of the workplace. Under the guidelines, employees

•Should be permitted to engage in private religious expression in personal work areas not regularly open to the public to the same extent that they may engage in nonreligious private expression.

•Should be permitted to engage in religious expression with fellow employees, to the same extent that they may engage in comparable nonreligious private expression, subject to reasonable restrictions.

•Are permitted to engage in religious expression directed at fellow employees, and may even attempt to persuade fellow employees of the correctness of their religious views. But employees must refrain from such expression when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome.

In order to best prevent liability for religious harassment, employers should be sure to protect employees from those religious employees who attempt to proselytize others who do not wish to be approached about religious matters, as well as to protect employees with permissible religious practices who are given a hard time by those who believe differently. Making sure that employees are given comparable opportunities to use workplace time and resources for religious practices if given for secular ones is also an important consideration, as otherwise it may appear that the employer is discriminating on the basis of religion. page 553

The Peterson v. Hewlett-Packard Co. case, included at the end of the chapter, sets forth the very interesting issue of what to do when an employer’s workplace diversity policy is at odds with an employee’s religious beliefs, to the extent that the employee who opposes the policy feels harassed. The court upheld his termination after the employer posted diversity posters that included sexual orientation and the employee placed biblical passages on the overhead bins in his office for all to see, with the goal of hurting LGBT employees “so they would repent.”

Keep in mind here that as an employer, the employer gets to make the determinations about religion in the workplace within the confines of the law. Hopefully, they are consistent with law and promote workplace productivity. Employees who decide, for whatever reason, that they cannot abide the employer’s lawful and legal policies always have the choice of either toughing it out or looking for a job that presents no such conflict. While the employer has no right to make employees choose between their religion and work, where a religious conflict does not pose an undue hardship, the employee also has no right to dictate to the employer what workplace policies must be. And, of course, harassment on the basis of religion is illegal under Title VII.

Union Activity and Religious Discrimination

As the earlier Hardison case discussed, at times the religious conflicts that arise between the employee and the employer are caused by collective-bargaining agreement provisions, rather than by policies unilaterally imposed by the employer. It has been determined that, even though Title VII applies the term religion with reference to an employer having a duty to reasonably accommodate, unions are also under a duty to reasonably accommodate religious conflicts.

The most frequent conflicts are requirements that employees be union members or pay union dues. Union membership, payment of union dues, or engaging in concerted activity such as picketing and striking conflicts with some religious beliefs. Employees also have objected to the payment of union dues as violating their First Amendment right to freedom of religion and Title VII’s prohibition against religious discrimination. Unions have claimed that applying the religious proscription of Title VII violates the Establishment Clause of the First Amendment to the U.S. Constitution, ensuring government neutrality in religious matters.

Courts have ruled that union security agreements requiring that employees pay union dues within a certain time after the effective date of their employment or be discharged does not violate an employee’s First Amendment rights. However, it violates Title VII for an employer to discharge an employee for refusal to join the union because of his or her religious beliefs.

Employees with religious objections must be reasonably accommodated, including the possibility of the alternative of keeping their job without paying union dues. However, the union could prove undue hardship if many of the employees chose to have their dues instead paid to a nonunion, nonsectarian charitable organization chosen by the union and the employer since the impact on the union would not be insubstantial.

Management Tips

One of the primary reasons’ employers run into trouble in this area is because they simply fail to recognize the religious conflict when an employee notifies them, or they refuse to adequately address it if they do. Many of the conflicts can be avoided by following a few basic rules:

•Take all employee notices of religious conflicts seriously.

•Once an employee puts the employer on notice of a religious conflict, immediately try to find ways to avoid the conflict. An employer doesn’t have to accommodate if doing so would cause an undue hardship, but there must be an attempt at accommodation.

•Ask the employee with the conflict for suggestions on avoiding the conflict. Employers need not take the suggestion, but allow the employee to provide input and knowledge in an area about which he or she may have more information.

•Ask other employees if they can be of assistance in alleviating the conflict (such as switching days off), but make it clear that they are not required to do so.

•Keep workplace religious comments and criticisms to a minimum.

•Make sure all employees understand that they are not to discriminate in any way against employees on the basis of religion.

•Once an employee expresses conflict based on religion, do not challenge the employee’s religious beliefs, though it is permissible to make sure of the conflict.

•Make sure undue hardship actually exists if it is claimed.

•Revisit issues such as Christmas bonuses and Christmas parties, and giving out Christmas turkeys or other gifts to see if it is more appropriate to use more inclusive language such as holiday to cover employees who do not celebrate the Christian holiday of Christmas. Further, revisit the issue of whether all employees are being fairly covered by such policies and events.

•Revisit the issue of granting leave for religious events and make sure it does not favor one religion over another, such as giving employees paid leave for Christmas but requiring them to take their own leave for other religious holidays such as Rosh Hashanah, Yom Kippur, or Ramadan. “Floating holidays” that they can use for whatever holiday they celebrate may make more sense and be less exclusionary.

•Make sure food at workplace events is inclusive of all employees, regardless of religion, such as having kosher (or at least nonpork or nonseafood) items for Jewish employees, having alternatives to alcoholic beverages for those who do not drink for religious reasons, having nonpork items for Muslims, and so on. Asking employees what religious dietary limitations they have or having employees bring a dish to share is an easy way to handle this. It may seem like a small, bothersome thing to deal with, but for those whose religions dictate these things, it is very significant. These types of things help to create (or not) a workplace that employees feel truly adheres to both the letter as well as the spirit of the law and this, in turn, impacts an employee’s perception of discrimination.

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In Tooley v. Martin-Marietta Corp,96 Seventh Day Adventists who were prohibited by their religion from becoming members of, or paying a service fee to, a union offered to pay an amount equal to union dues to a mutually acceptable charity. The union refused and argued that to accommodate the employees violated the Establishment Clause ensuring governmental neutrality in matters of religion. The court said that the government could legitimately enforce accommodation of religious beliefs when the accommodation reflects the obligation of neutrality in the face of religious differences and does not constitute sponsorship, financial support, or active involvement of the sovereign in religious activities with which the Establishment Clause is mainly concerned. The Establishment Clause, typically applied to state legislation, such as in Frazee, discussed earlier, requires that the accommodation reflect a clearly secular purpose, have a primary effect that neither inhibits nor advances religion, and avoid excessive government entanglement with religion.

Whether the objection under Title VII is directed toward the employer or the union, a government employer still has a duty to reasonably accommodate the employee’s religious conflict unless to do so would cause undue hardship or excessive entanglement with religion or violate the Establishment Clause.

Chapter Summary

•Employees are protected in the workplace in their right to adhere to and practice their religious beliefs, and the employer cannot discriminate against them on this basis unless to do so would be an undue hardship on the employer.

•The employer cannot question the acceptability of an employee’s religion or when or why the employee came to believe.

•The employer should be conscious of potential religious conflicts in developing and implementing workplace policies.

•The prohibition on religious discrimination is not absolute, as the employer has only the duty to reasonably accommodate the employee’s religious conflict unless to do so would cause the employer undue hardship.

•While the employer must make a good-faith effort to reasonably accommodate religious conflicts, if such efforts fail, the employer will have discharged his or her legal duties under Title VII.

Chapter-End Questions

1.Employer instituted a religious program in the workplace called “Onionhead” to “harness happiness” of employees. Among other things, employees were required to say “I love you,” to share messages about heaven and Satan and burn candles to keep the devil away from the office. Employee is fired for not complying. Can employer establish an Onionhead religion? Are these practices okay for the employer to require of employees? [EEOC v. United Health Program of America, Inc., 213 F. Supp. 3d 377 (E.D. NY 2016).]

2.Cynthia requested a two-week leave from her employer to go on a religious pilgrimage. The pilgrimage was not a requirement of her religion, but Cynthia felt it was a “calling from God.” Will it violate Title VII if Cynthia’s employer does not grant her the leave? page 556Explain. [Tiano v. Dillard Department Stores, Inc., 1998 WL 117864 (9th Cir. 1998).] Compare with a case in which the UPS Jehovah’s Witness employee’s supervisor denied his request for a schedule accommodation to allow him to attend the annual religious service, terminated the new employee a few days later, and placed him on a do-not-rehire list. [EEOC v. United Parcel Service, Inc., Civil Action No. 2:12-cv-07334 (11/4/13).]

3.At the end of all her written communications, employee writes “have a blessed day.” One of employer’s most important clients requests that employee not do so and employer asks employee to stop. Employee refuses, saying it is a part of her religion. If employee sues the employer for religious discrimination, is she likely to win? [Anderson v. USF Logistics (IMC), Inc., 274 F.3d 470 (7th Cir. 2001).]

4.Employee is terminated for refusal to cover or remove his confederate flag symbols as requested by his employer. He sues the employer, claiming discrimination on the basis of his religion as a Christian and his national origin as a “Confederate Southern American.” Is he likely to win? [Storey v. Burns International Security Service, 390 F.3d 760 (3d Cir. 2004).]

5.A Michigan Holiday Inn fired a pregnant employee because the “very Christian” staff members were very upset by her talk of having an abortion. Has the employer violated Title VII? [Turic v. Holland Hospitality, Inc., No. 1-93-CV-379 (W.D. Mich. 1994).]

6.A police officer who is assigned to a casino refuses the assignment, claiming his Baptist religion prohibits him from gambling or being around gambling. Is he legitimately able to do so? [Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003).]

7.Employee police officer, a Jehovah Witness whose religion does not allow carrying weapons or celebration of Christmas, refuses to go through weapons training or to oversee a Christmas party for his job. Can he refuse to do these things and keep his job? Westbrook v. N. Carolina A&T State Univ., 51 F. Supp. 3d 612 (MD NC 2014).

8.Employee, a Muslim, is a management trainee at an airport car rental office. As part of her religious practice, employee wears a hijab (headscarf). She is told by her supervisor that the hijab does not match the uniforms she is required to wear, so she must stop wearing it or be transferred to another position with less customer interaction. Employee was later terminated as a part of a company cutback. She sues for religious discrimination. Does she win? Explain. [Ali v. Alamo Rent-A-Car, 246 F.3d 662 (4th Cir. 2001).] How about a Disney employee who is a hostess at a Disney attraction who is terminated for refusing to wear her hijab? [Boudlal v. Disney (U.S. Dist. Ct. for Central Dist. of CA 8/10/12).]

9.A Pentecostal nurse claims she was constructively discharged after refusing, because of her religious beliefs, to assist in medical procedures she considered to be abortions. She was initially transferred from labor and delivery to the newborn intensive care unit. Employee found this unacceptable because she says she would once again be forced to refuse tasks that involved allowing infants to die. The hospital invited the employee to meet with human resources and to investigate available positions, but she refused. Employee says the duty to assist in an accommodation never arose because a transfer to any other department is not a viable option since it would require her to give up her eight years of specialized training and education and undertake retraining. Employee is terminated and sues for religious discrimination. Does she win? Explain. [Shelton v. University of Medicine & Dentistry of New Jersey, 2000 U.S. App. LEXIS 19099 (3d Cir. 2000).]

10.page 557A Baptist-run home for troubled youngsters terminates an employee for being a lesbian. Can it do so? [Pedreira v. Kentucky Baptist Home for Children, 186 F. Supp. 2d 757 (W.D. Ky. 2001).] How about terminating a practicing Nazarite from Taco Bell whose religious beliefs do not allow the cutting of hair? Does it matter if the employee had worked there for seven years without cutting his hair? [EEOC v. Family Foods, Inc., d/b/a Taco Bell, Civil Action No. 5:11-cv-00394 7/28/11.] What about a self-described Evangelican Christian computer specialist working for the National Aeronautics and Space Administration (NASA) Jet Propulsion Laboratory who believes in intelligent design rather than evolution and argues about it with co-workers and passes out DVDs about it? [Coppedge v. JPL, Case No. BC 435600 (Superior Court of the State of CA, County of Los Angeles, 1/15/13).]

End Notes

1. “Dynamic Medical Services to Pay $170,000 To Settle EEOC Religious Discrimination Lawsuit,” EEOC press release (December 23, 2013), http://www.eeoc.gov/eeoc/newsroom/release/12-23-13a.cfm.

2. Palmer, James, “Woman Wasn’t Christian Enough for Employer,” Courthouse News Service (April 20, 2017), http://www.courthousenews.com/woman-says-wasnt-christian-enough-employer/

3. Weikel, Dan, “Sikh Truck Drivers Reach Accord in Religious Discrimination Case Involving a Major Shipping Company,” Los Angeles Times (November 15, 2016), http://www.latimes.com/local/lanow/la-me-ln-sikh-truckers-20161115-story.html.

4. Myers, Amanda Lee, “Ex-Ohio Hospital Worker Sues over Flu Requirement,” The News-Herald (January 17, 2013), http://www.news-herald.com/general-news/20130117/former-ohio-hospital-worker-sues-over-flu-shot-requirement.

5. Hammock, Bradford T., and Joseph J. Lynett, “Inquiry to Determine Employee’s Religious Objection to Mandatory Vaccination Gains EEOC Counsel’s Support,” Lexology (February 5, 2013), http://www.lexology.com/library/detail.aspx?g=3a9e9308-cd85-47c9-b539-628050957f4e.

6. “EEOC Sues Consol Energy and Consolidation Coal Company for Religious Discrimination,” EEOC press release (September 25, 2013), http://www.eeoc.gov/eeoc/newsroom/release/9-25-13d.cfm.

7. “Fremont Toyota Pays $400,000 to Settle EEOC’s Harassment and Retaliation Lawsuit,” EEOC press release (August 7, 2012).

8. “Man Fired for God Button: Trevor Keezer Says Home Depot Fired Him Over ‘One Nation Under God’ Pin,” The Huffington Post (March 18, 2010), http://www.huffingtonpost.com/2009/10/28/trevor-keezor-florida-man_n_337875.html.

9. Horowitz, Donna, “Ex-Santana Employee Sues Over Firing: Aide to the Musician and His Wife Says They Dismissed Him for Spiritual Shortcomings. He Also Alleges Age and Gender Discrimination,” Los Angeles Times (October 11, 2005), http://articles.latimes.com/2005/oct/11/local/me-santana11.

10. Anderson v. U.S.F. Logistics, Inc., 274 F.3d 470 (7th Cir. 2001).

11. Hedum v. Starbucks Corp., 546 F. Supp. 1017 (D. Or. 2008).

12. Claburn, Thomas, “Google Sued for Sexual, Religious Discrimination,” InformationWeek (November 3, 2009), http://www.informationweek.com/news/services/saas/showArticle.jhtml?articleID=221600072.

page 55813. Joyner, James, “Woman Fired for Eating ‘Unclean’ Meat,” Orlando Local6 TV (August 4, 2004), http://www.outsidethebeltway.com/_woman_fired_for_eating_unclean_meat/.

14. Reilly, Patrick J., “Look Who’s Discriminating Now,” The Wall Street Journal (August 13, 2009), http://online.wsj.com/article/SB10001424052970203863204574346833989489154.html.

15. Adesina, Zack, and Oana Marocico, “Is It Easier to Get a Job If You’re Adam or Mohamed?” BBX Inside Out (February 6, 2017).

16. McArdle, Mairead, “Muslim Truck Drivers Fired for Refusing to Deliver Beer Awarded $240K,” CNSNews.com (November 9, 2015).

17. Moyer, Justin Wm., “Muslim Flight Attendant Suspended for Refusing to Serve Alcohol Files Federal Complaint," The Washington Post (September 18, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/09/08/muslim-flight-attendant-suspended-for-refusing-to-serve-alcohol-files-federal-complaint/?utm_term=.9f7673c3af13.

18. Baldas, Tresa, “Muslim-American Man Wins Nearly $1.2 Million in Job Discrimination Case,” Detroit Free Press (February 20, 2014), http://www.freep.com/story/news/local/2014/02/28/muslimamerican-man-wins-nearly-12-million-in-job-discrimination-case/77152192/

19. “Minnesota’s Muslim Cabdrivers Face Crackdown,” Reuters (April 17, 2007), http://www.reuters.com/article/2007/04/17/us-muslims-taxis-idUSN1633289220070417.

20. Moranski v. General Motors Corp., 433 F.3d 537 (7th Cir. 2005).

21. Stein, Rob, “Pharmacists’ Rights at Front of New Debate: Because of Beliefs, Some Refuse to Fill Birth Control Prescriptions,” The Washington Post (March 28, 2005), http://www.washingtonpost.com/wp-dyn/articles/A5490-2005Mar27.html.

22. Endres v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003). The U.S. Supreme Court declined to hear the officer’s appeal.

23. Knight v. State of Connecticut, Department of Public Health, 275 F.3d 156 (2d Cir. 2001).

24. Castellani, Anne, “Judge Rules in Favor of Turban-Wearing Officer,” CNNJustice (May 3, 2004), http://articles.cnn.com/2004-04-30/justice/turban.cop_1_turban-judge-rules-sikh?_s=PM:LAW; and Shortell, David, “NYPD Changes Policy, Will Allow Officers to Wear Turbans,” CNN (December 29, 2016).

25. Pérez-Peña, Richard, “Judge Says Army Can’t Require Special Testing of Sikh Officer,” The New York Times (March 4, 2016), https://www.nytimes.com/2016/03/05/us/sikh-army-captain-beard-turban.html?mcubz=1

26. “Ten Commandments Judge Removed from Office,” CNNJustice (November 4, 2003), http://articles.cnn.com/2003-11-13/justice/moore.tencommandments_1_ethics-panel-state-supreme-court-building-ethics-charges?_s=PM:LAW.

27. “City Agrees to Pay $20,000 in Fees, Clarify Rules After 2 Employees Claim Christmas Discrimination,” Fox News (February 20, 2008), http://www.foxnews.com/story/0,2933,331431,00.html?sPage=fnc/us/lawcenter.

28. “Florida TV Producer Sues over Firing,” highbeam.com (January 29, 2003), http://www.highbeam.com/doc/1P1-71355459.html.

29. Gibson, John, “Some Muslim Cashiers at Minnesota Target Refuse to Scan Pork Products,” Fox News (March 20, 2007), http://www.foxnews.com/story/0,2933,259914,00.html.

30. Banerjee, Neela, “Soldier Sues Army, Saying His Atheism Led to Threats,” The New York Times (April 26, 2008), http://www.nytimes.com/2008/04/26/us/26atheist.html.

page 55931. “Worker Opposed to Gays Wins Suit,” The Washington Times (April 7, 2004), http://www.washingtontimes.com/news/2004/apr/7/20040407-124312-3261r/.

32. Peterson v. Hewlett-Packard, Co., 358 F.3d 599 (9th Cir. 2004).

33. Altman v. Minn. Dept. of Corr., 251 F.3d 1199 (7th Cir. 2001).

34. Espinoza, Martin, “Order to Tuck in Dreadlocks Leads to Civil Rights Lawsuit,” The New York Times (September 18, 2008), http://www.nytimes.com/2008/09/18/nyregion/18dreads.html.

35. Peterson v. Wilmur Communications, Inc., 205 F. Supp. 1014 (E.D. Wis. 2002).

36. Burleigh, Nina, “Trump Effect Inspires Radical Christians in Military,” Newsweek (May 22, 2017), http://www.newsweek.com/christian-fundamentalists-us-armed-forces-national-security-threat-613428.

37. “Wiccan Symbol OK on Military Headstones,” nbcnews.com (April 23, 2007), http://www.nbcnews.com/id/18274639/ns/us_news-military/t/wiccan-symbol-ok-military-headstones/#.UvlhPP2CseY.

38. Harris, Elizabeth A., “Billboard Called Anti-Semitic Is Quickly Pulled,” The New York Times (November 22, 2011), http://www.nytimes.com/2011/11/23/nyregion/billboard-ad-for-wodka-vodka-called-anti-semitic-is-pulled.html?_r=0.

39. “Colorado Student Quits High School Choir over Islamic Song Praising ‘Allah,’” foxnews.com (February 15, 2012), http://www.foxnews.com/us/2012/02/15/colorado-student-reportedly-quits-choir-over-islamic-song/.

40. Remizowski, Leigh, “Teacher Who Was Fired after Fertility Treatments Sues Diocese,” CNN (April 26, 2012), http://www.cnn.com/2012/04/26/us/indiana-in-vitro-lawsuit/index.html.

41. Karni, Annie, “DUMBO Restaurant The River Cafe Discriminates against Jews: Workers,” New York Post (October 21, 2012), http://nypost.com/2012/10/21/dumbo-restaurant-the-river-cafe-discriminates-against-jews-workers/.

42. Leavines, Linnie, “LSU Apologizes for Removing Christian Cross from Photo of Students,” campusreform.org (October 22, 2012), http://www.campusreform.org/?ID=4456.

43. Smith, Morgan, “When Faith Meets Football in East Texas,” The New York Times (October 13, 2012), http://www.nytimes.com/2012/10/14/us/lawsuit-over-cheerleaders-bearing-bible-verses-in-kountze-texas.html?pagewanted=all&_r=0.

44. Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2007).

45. Van Orden v. Perry, 545 U.S. 677 (2005) and McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).

46. “Amish Buggy Bill Could Be Nearing Final Passage,” Kentucky New Era (March 14, 2012), http://www.kentuckynewera.com/web/news/article_f3b6d8e2-6d76-11e1-b313-0019bb2963f4.html.

47. “UGA Cheerleading Coach Fired over Discrimination Claims,” Atlanta Journal & Constitution via Free Republic (August 24, 2004), http://www.freerepublic.com/focus/f-news/1198648/posts.

48. “Muslim Basketball Player Quits USF Team,” St. Petersburg Times (September 16, 2004), http://www.gawaher.com/topic/4040-female-muslim-basketball-player-quits-usf-team/.

49. Goldberg, Melissa, “Head Start,” Oprah Magazine (March 2017), p. 22.

50. http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.

page 56051. Brown, Matthew, “Religious Discrimination in the Workplace Increases with Diversity,” Deseret News (August 31, 2013), http://www.deseretnews.com/article/865585613/Religious-discrimination-in-the-workplace-increases-with-diversity.html?pg=all.

52. Valentino-Devries, Jennifer, “Bosses May Use Social Media to Discriminate against Job Seekers: Firms Use Data They Find Early in Job Process, New Study Finds,” The Wall Street Journal (November 20, 2013), http://online.wsj.com/news/articles/SB10001424052702303755504579208304255139392.

53. http://eeoc.gov/policy/does/religion.html.

54. Brown, “Religious Discrimination in the Workplace Increases with Diversity.”

55. Lipka, Michael, “Ten Facts about Atheists,” Pew Research Center (June 1, 2016), http://www.pewresearch.org/fact-tank/2016/06/01/10-facts-about-atheists/; and “America’s Changing Religious Landscape,” Pew Research Center–Religion and Public Life (May 12, 2015).

56. Brown, “Religious Discrimination in the Workplace Increases with Diversity.”

57. 483 U.S. 327 (1987).

58. 565 U.S. 171, (No. 10-553, 2012).

59. “Jewish Hockey Player Claims He Was Harassed,” CNN.com (January 25, 2011), http://www.cnn.com/2011/US/01/25/hockey.player.lawsuit/index.html?iref=allsearch.

60. “Brothers’ Religious Discrimination Suit Settled,” JTA.org (March 18, 2010), http://www.jta.org/news/article-print/2010/03/18/1011187/lawsuit-filed-by-the-eeoc-on-behalf.html.

61. “Teachers File Discrimination Lawsuit against School District,” Bakersfield News (May 21, 2009), http://www.turnto23.com/news/19533316/detail.html.

62. “Drill Sergeants Reprimanded for Bias, Calling Trainee ‘Juden,’” usatoday.com (October 18, 2008), www.usatoday.com/news/religion/2008-10-06-jewish-soldier-n.html.

63. Gillam, Carey, “Susann Bashir, Muslim Woman, Wins $5 Million Verdict from AT&T for Discrimination,” The Huffington Post (May 4, 2012), http://www.huffingtonpost.com/2012/05/05/muslim-woman-wins-5-million-att_n_1479884.html.

64. “EEOC Sues Star Transport, Inc., for Religious Discrimination,” EEOC press release (May 29, 2013), http://eeoc.gov/eeoc/newsroom/release/5-29-13.cfm.

65. “Hertz Suspends 34 Muslim Drivers in Prayer Dispute,” The Seattle Times (October 7, 2011), http://seattletimes.com/html.

66. “EEOC Sues Convergys Corporation for Religious Discrimination,” EEOC press release (March 3, 2011), http://www.eeoc.gov/eeoc/newsroom/release/3-3-11.cfm.

67. “Ivy Hall Assisted Living Pays $43,000 to Settle Religious Discrimination Lawsuit,” EEOC press release (January 29, 2010), http://www.eeoc.gov/newsroom/release/12-18-09.cfm.

68. EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86, 575 U.S. __ (June 1, 2015).

69. “EEOC Sues Senior Assisted Living Company for Religious Discrimination,” EEOC press release (September 29, 2011), http://www.eeoc.gov/eeoc/newsroom/release/9-29-11f.cfm.

70. 489 U.S. 829 (1989).

71. Dvorak, Phred, “Religious-Bias Filings Up,” The Wall Street Journal (October 16, 2008), http://online.wsj.com/article/SB122411562348138619.html.

72. “Brinks to Pay $30,000 to Peoria Area Woman for Failure to Accommodate Religious Beliefs: EEOC Suit Said Pentecostal Employee Fired for Refusal to Wear Pants page 561as Part of Uniform,” EEOC press release (January 2, 2003), http://www1.eeoc.gov//eeoc/newsroom/release/1-2-03b.cfm?renderforprint=1.

73. EEOC v. Chi Chi’s Restaurant, http://archive.eeoc.gov/abouteeoc/annual_reports/annrep96-98.html.

74. “Belk, Inc., to Pay $55,000 to Settle EEOC Religious Discrimination Suit,” EEOC press release (March 16, 2011), http://www.eeoc.gov/eeoc/newsroom/release/3-16-11.cfm.

75. “Employee’s Refusal to Say ‘Happy Holidays’ Leads to EEOC Complaint,” Business Management Daily (April 19, 2009), http://www.businessmanagementdaily.com/articles/17858/1/Refusal-to-say-Happy-holidays-leads-to-EEOC-complaint/Page1.html#.

76. Haldane, David, “Dismissed Bus Driver Files Federal Complaint: Labor: The Vegetarian Who Refused to Hand Out Hamburger Coupons to Riders for OCTA Cites Religious Discrimination,” Los Angeles Times (June 11, 1996), http://articles.latimes.com/1996-06-11/local/me-13909_1_bus-driver.

77. Zackin, Martha, “Religious Discrimination or Legitimate Business Decisions? It Depends.,” Mintz Levin Employment Matters Blog (February 14, 2012), http://www.employmentmattersblog.com/2012/02/religious-discrimination-or-legitimate-business-decision-it-depends/.

78. Tanisha Matthews v. WalMart, 10-2242 (7th Cir. 2011) (unpublished opinion); “Court: Wal-Mart Firing of Anti-Gay Employee Not Religious Harassment,” Chicago Sun Times (April 6, 2007), http://www.suntimes.com/4693324-417/court-wal-mart-firing-of-anti-gay-employee-not-religious-harassment.html.

79. 475 U.S. 503 (1986).

80. “Sikhs in U.S. Military Now Allowed to Wear Turbans,” Yahoonews (January 23, 2014), http://in.news.yahoo.com/sikhs-us-military-now-allowed-wear-turbans-052736692.html.

81. Tanisha Matthews v. WalMart, 10-2242 (7th Cir. 2011).

82. 49 Cal. App. 4th 1223 (1996).

83. 58 F.3d 1337 (8th Cir. 1995).

84. 515 F.3d 307 (4th Cir. 2008).

85. Skoloff, Brian, “Fla. Man Says Home Depot Fired Him Over God Button,” Atlanta Journal & Constitution (October 28, 2009), http://www.ajc.com/business/fla-man-says-home-175481.html.

86. 529 F.2d 483 (10th Cir. 1976).

87. “Wis. Woman Pleads No Contest in Toilet Corpse Case,” comcast.net (November 18, 2008), http://www.comcast.net/articles/news-general/20081117/Decaying.Corpse/.

88. Breen, Tom, “NC Teen: Nose Ring More Than Fashion, It’s Faith,” yahoo.com (September 16, 2010), http://news.yahoo.com/s/ap/us_rel_piercing_church/print.

89. 1998 U.S. Dist. LEXIS 21148 (E.D. Mich. 1998).

90. 29 C.F.R. § 1605.1. City of Boerne, Texas v. Flores, 521 U.S. 507 (1997).

91. 803 F.2d 351 (7th Cir. 1986).

92. Richards, Kimberly, “Muslim Man Fired From Bed Bath & Beyond Says He Was Called ‘Terrorist,’” The Huffington Post (November 9, 2015), http://www.huffingtonpost.com/entry/muslim-man-fired-bed-bath-beyond_us_5640aed2e4b0b24aee4add11

page 56293. Chartrand, Sabra, “Protecting Freedom of Religion in the Workplace,” The New York Times (June 8, 1997), http://partners.nytimes.com/library/jobmarket/060897sabra.html.

94. City of Boerne, Texas v. Flores, 521 U.S. 507 (1997); and Rosamaria D. Machado-Wilson v. BSG Laboratories, Inc., Case No. 98-106601 CIDL (Cir. Ct., 7th Jud. Cir., Volusia County, Fla., 1998).

95. Rosamaria D. Machado-Wilson v. BSG Laboratories, Inc., Case No. 98-106601 CIDL (Cir. Ct., 7th Jud. Cir., Volusia County, Fla., 1998).

96. 648 F.2d 1239 (9th Cir. 1981).

Trans World Airlines, Inc. v. Hardison 432 U.S. 63 (1977)

Employer was unable to accommodate employee’s religious conflict of working on the Sabbath, without undue hardship. The Court set forth the guidelines for determining what constitutes undue hardship.

White, J.

***

The employee, Hardison, was employed by Trans World Airlines (TWA), in a department that operated 24 hours a day throughout the year in connection with an airplane maintenance and overhaul base. Hardison was subject to a seniority system in a collective bargaining agreement between TWA and the International Association of Machinists & Aerospace Workers (union), whereby the most senior employees have first choice for job and shift assignments as they become available, and the most junior employees are required to work when enough employees to work at a particular time or in a particular job to fill TWA’s needs cannot be found.

Because Hardison’s religious beliefs prohibit him from working on Saturdays, attempts were made to accommodate him, and these were temporarily successful mainly because on his job at the time he had sufficient seniority regularly to observe Saturday as his Sabbath. But when he sought, and was transferred to, another job where he was asked to work Saturdays and where he had low seniority, problems began to arise. TWA agreed to permit the union to seek a change of work assignments, but the union was not willing to violate the seniority system, and Hardison had insufficient seniority to bid for a shift having Saturdays off. After TWA rejected a proposal that Hardison work only four days a week on the ground that this would impair critical functions in the airline operations, no accommodation could be reached, and Hardison was discharged for refusing to work on Saturdays.

page 569

We hold that TWA, which made reasonable efforts to accommodate Hardison’s religious needs, did not violate Title VII, and each of the Court of Appeals’ suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines. The employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines. With this in mind, we turn to a consideration of whether TWA has met its obligation under Title VII to accommodate the religious observances of its employees.

The Court of Appeals held that TWA had not made reasonable efforts to accommodate Hardison’s religious needs. In its view, TWA had rejected three reasonable alternatives, any one of which would have satisfied its obligation without undue hardship. First, within the framework of the seniority system, TWA could have permitted Hardison to work a four-day week, utilizing in his place a supervisor or another worker on duty elsewhere. That this would have caused other shop functions to suffer was insufficient to amount to undue hardship in the opinion of the Court of Appeals. Second, also within the bounds of the collective-bargaining contract the company could have filled Hardison’s Saturday shift from other available personnel competent to do the job, of which the court said there were at least 200. That this would have involved premium overtime pay was not deemed an undue hardship. Third, TWA could have arranged a “swap between Hardison and another employee either for another shift or for the Sabbath days.” In response to the assertion that this would have involved a breach of the seniority provisions of the contract, the court noted that it had not been settled in the courts whether the required statutory accommodation to religious needs stopped short of transgressing seniority rules, but found it unnecessary to decide the issue because, as the Court of Appeals saw the record, TWA had not sought, and the union had therefore not declined to entertain, a possible variance from the seniority provisions of the collective-bargaining agreement. The company had simply left the entire matter to the union steward who the Court of Appeals said “likewise did nothing.”

We disagree with the Court of Appeals in all relevant respects. It is our view that TWA made reasonable efforts to accommodate and that each of the suggested alternatives would have been an undue hardship within the meaning of the statute as construed by the EEOC guidelines.

It might be inferred from the Court of Appeals’ opinion and from the brief of the EEOC in this Court that TWA’s efforts to accommodate were no more than negligible. The findings of the District Court, supported by the record, are to the contrary. In summarizing its more detailed findings, the District Court observed:

“TWA established as a matter of fact that it did take appropriate action to accommodate as required by Title VII. It held several meetings with plaintiff at which it attempted to find a solution to plaintiff’s problems. It did accommodate plaintiff’s observance of his special religious holidays. It authorized the union steward to search for someone who would swap shifts, which apparently was normal procedure.”

It is also true that TWA itself attempted without success to find Hardison another job. The District Court’s view was that TWA had done all that could reasonably be expected within the bounds of the seniority system.

We are also convinced, contrary to the Court of Appeals, that TWA itself cannot be faulted for having failed to work out a shift or job swap for Hardison. Both the union and TWA had agreed to the seniority system; the union was unwilling to entertain a variance over the objections of men senior to Hardison; and for TWA to have arranged unilaterally for a swap would have amounted to a breach of the collective-bargaining agreement.

Hardison and the EEOC insist that the statutory obligation to accommodate religious needs takes precedence over both the collective-bargaining contract and the seniority rights of TWA’s other employees. We agree that neither a collective-bargaining contract nor a seniority system may be employed to violate the statute, but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. Without a clear and express indication from Congress, we cannot agree with Hardison and the EEOC that an agreed-upon seniority system must give way when necessary to accommodate religious observances.

The Court of Appeals also suggested that TWA could have permitted Hardison to work a four-day week if necessary in order to avoid working on his Sabbath. Recognizing that this might have left TWA short-handed on the page 570one shift each week that Hardison did not work, the court still concluded that TWA would suffer no undue hardship if it were required to replace Hardison either with supervisory personnel or with qualified personnel from other departments. Alternatively, the Court of Appeals suggested that TWA could have replaced Hardison on his Saturday shift with other available employees through the payment of premium wages. Both of these alternatives would involve costs to TWA, either in the form of lost efficiency in other jobs or higher wages.

To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion. By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off the Court of Appeals would in effect require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarily in Hardison’s place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs. While the cost may seem small for one employee compared to TWA’s resources, TWA may have many employees who need such accommodation.

Case Questions

1.In your opinion, were the alternatives suggested by the court of appeals viable for TWA? Why or why not?

2.Does it seem inconsistent to prohibit religious discrimination yet say that collective bargaining agreements cannot be violated to accommodate religious differences? Explain.

3.If you had been Hardison’s manager and he came to you with this conflict, how would you have handled it? Does that change now that you have seen the Court’s decision? If so, how?

Bennett-Alexander, Dawn. Employment Law for Business, 9th Edition. McGraw-Hill Higher Education, 20180123. VitalBook file.

The citation provided is a guideline. Please check each citation for accuracy before use.