2 prepare package for HRM- Employment Law

Religious Discrimination

Chapter Eleven

HRM 3512

I. Reading Highlights

Chapter Eleven: Religious Discrimination

1. What law prohibits religious discrimination by employers? (Hint: You are really familiar with this law!)

2. What are the prima facie elements of a religious discrimination claim under the law you wrote above?

3. Which constitutional amendment prohibits Congress from establishing a national religion and prohibits Congress from prohibiting a person’s free exercise of their religion?

4. Employers are often discussed in terms of “private employers” (i.e., non-governmental employers) and “public employers” (i.e., governmental employers.) Which of these must comply with the “freedom of religion” and “non-establishment” amendment to the U.S. Constitution that you’ve identified above?

a. Public employers (i.e. government) only

b. Private employers (i.e. non-government) only

c. Both

d. Neither

5. This “religion” protected class is the first we’ve seen where an employer has a duty to do more than just avoid discrimination – the employer has a duty to reasonably accommodate the employee’s religion. What does that mean?

6. Even though an employer covered under Title VII has a duty to “reasonably accommodate” an employee’s religion, that employer is not under a duty to absolutely or totally accommodate an employee’s religion. What does the employer need to show if it says that it can’t “reasonably accommodate” an employee’s religion?

7. When we looked at previous discrimination, we asked whether customers’ or coworkers’ legitimate preferences could serve as a defense to an employer’s discriminatory practice. Let’s look at the same issue (the feelings of customers and coworkers) in this different (religion) context. If the customers or other employees are put off by an employee’s religious garb (such as the turban in Opening Scenario One), can the employer forbid the employee from wearing it? Why or why not? (Is this the same answer as with other types of discrimination?)

8. Let’s look at the timing issue and when the protection kicks in to save an employee from religion discrimination. Suppose that an employee, Gillian, has always held the religious practice of not working on Sundays because they are her religion’s Sabbath. When she started working at Katrotel Industries ten years ago, it wasn’t even an issue because the plants and offices were closed on the weekends. Now, because of the recommendations of a logistics consultant, she is being asked to work four Saturdays and Sundays a year to do end-of-quarter inventories. Can she assert her religious practices now, even though she’s worked there ten years already?

9. Let’s go back to Katrotel Industries in the last question. The company recently hired Jake, who has no problem working those four weekends a year. Jake has never been religious. Two months after starting his job, Jake began studying theology in his spare time and became a fervent Christian fundamentalist. He asserts that he is no longer able to work on Sundays because they are his religion’s Sabbath. Can he assert his religious practices now, even though he changed his religious stance since he was hired? How are the facts of this case different from the previous question, and does it change the outcome?

10. We’ve been talking about religious practices (work hours, items of clothing) but what about religious beliefs? Suppose an employer who is devoutly Christian wants to keep an all-Christian workforce because then employees can share that in common and, presumably, bond together and maybe have higher productivity. Similarly, motivational speeches at this employer tie in the common religious beliefs to illustrate points about the work itself. Is this legal? Why/why not?

11. The trickiest part of a religious discrimination case is being able to decide if something is within the employer’s duty to reasonably accommodate or whether something would constitute an undue hardship for the employer. The courts have repeatedly held that these are fact-intensive inquiries – it all depends on the facts of what happened. Small differences in the facts may make big differences in the outcome.

Quickie review: If there is a judge AND a jury, which of these is in charge of deciding matters of factual questions?

One thing the courts and juries always look at, though, is what the employer does FIRST when it learns the employee has a religious conflict with workplace rules or practices. What does the employer always need to do FIRST THING once it learns there’s a conflict?

a. Fire the employee

b. Give the employee whatever he/she needs

c. Determine whether the religion is a “real” religion by Googling it

d. Try to accommodate the worker, even if it isn’t exactly perfectly what the employee wants or management wants

e. Determine whether there has been a past precedent in the company of providing this kind of religious accommodation

12. The court will eventually scrutinize everything the employer did once it found out about the religious conflict to see if the employer either actually reasonably accommodated the employee or tried to reasonably accommodate the employee. Does this reasonable accommodation offered by the employer need to be what the employee asked for? Or could it be another solution acceptable to the employer, accommodating the religious practice, but the employee doesn’t like it?

13. The court is going to examine lots of facts about the situation to see whether the employer is liable for religious discrimination. What factors will the court examine to see if the employer has successfully tried or achieved reasonable accommodation of the employee’s religious practices?

a. Whether the employer made an attempt to accommodate

b. How big the employer’s workforce is

c. The type of job the worker holds

d. The cost of the accommodation for the employer

e. Whether the employer asked co-workers for help in accommodating

f. How hard it would be to manage the accommodation (time, money, manager time)

g. All of the above!

14. “Undue hardship” is just as fact-intensive a determination. Lawyers for both sides will argue that the facts support their conclusion in a Title VII religious discrimination case. What if the employer can show that it was a real inconvenience to accommodate the religious practices … is that enough to constitute “undue hardship” and thus excuse the accommodation and be held not liable for religious discrimination?

15. True or false? If an employer has to bear a “substantial cost” to replace a worker due to accommodate that worker’s religious practice conflicts, it must do so in order to comply with Title VII.

16. True or false? The law requires an employer, if necessary to accommodate a religious conflict, to force another employee to trade places with the conflicted employee even if the other employee is unwilling to do so.

17. True or false? An employer can assert that the hiring of a particular religion is a Bona Fide Occupational Qualification (BFOQ) for the job at issue.

18. Is it illegal to subject someone to religious harassment at work under Title VII? If so, what’s considered harassing? If not, why is it not prohibited?