I have a Human Resource Management Term Paper on Sexual Orientation Discrimination in the Workplace

Running Header: RELIGION BASED DISCRIMINATION IN THE WORKPLACE 1

Nina Moeller

Religion Based Discrimination in the Workplace

Human Resource Management

Dr. Melissa Mann

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 2

Introduction

The United States Equal Employment Opportunity Commission (EEOC) has taken fire at

organizations discriminating against individuals based on their religious beliefs. The EEOC has

spearheaded 68 lawsuits and has recovered over $4 million for victims of religious

discrimination (EEOC, 2015a). The EEOC has also imposed injunctions and recovered

additional case-specific relief intended to “make whole” the injustices people faced (EEOC,

2015a). The seemingly outdated but yet remarkably resilient topic of religion has caused wars,

mass migrations, starvation, death, torture, as well as loss of property and legal rights. It has also

caused a rise in education levels, helped thousands of people in need, and continues to reach out

to those less fortunate today. Religion therefore can be viewed in a positive as well as negative

light. However, regardless of one's beliefs and views on religion, religiosity is embedded in most

societal functions and is, often times, an inseparable part of employees’ lives. Consequently,

organizations need to be proactive in creating an environment that is free from religious

oppression and discrimination.

Although strides to ameliorate religious discrimination have been made, the topic of

religion can be an Achilles heel in modern day organizations. There are approximately 322

million Americans in the US, 77 religious belief systems with over 60,000 members, 1500

recognized religions (Cunningham, 2011) and roughly 22 million companies in the US (Census,

2012). With these vast numbers, it is impossible not to have any frictions concerning the hot

button topic of religion. Furthermore, it is idealistic yet naive to think that it is possible to

prevent religious discrimination from happening at all. Although there are federal, state, and

local regulations in place to prevent religious discrimination in workplaces, these are not

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 3

sufficient. Organizations need to continuously create awareness, understanding, and acceptance

of the differences existing among the employees to avoid minorities standing out as pariahs.

Despite government and legislative efforts religious discrimination charges are on the

rise. Arguably, religious discrimination will always exist as long as people of different faiths

believe their faith is the only true one raised above laws of man and when they proselytize to

people who want to be left alone. In spite of the challenges, it should still be possible for

organizations to create a workplace without fear of discrimination or harassment by combining

government and legislative efforts with best practices of their own.

This paper will provide an overview of the topic Religious Discrimination by defining

religion and what religious discrimination entails. The paper will also provide a historical

snapshot focused on the last couple of decades mainly in the United States. Afterwards the paper

will delineate legislation including the exemptions of the federal laws. The paper will continue to

discuss consequences associated with religious discrimination and provide prescriptive best

practices aimed at preventing religious discrimination from happening in the first place followed

by a conclusion.

Literature Review

Definition, Historical Perspectives, and Legislative Initiatives

Religious Discrimination defined.

In order to define religious discrimination, perhaps it is wise first to define religion itself.

Religion is not just the standard faiths such as Christianity, Hinduism, and Islam, but also the

small, informal group that practices whatever they believe in. When one is religious, there can be

certain religious observances or practices the believer have to follow and among those are for

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 4

example praying, wearing special clothes or symbols, follow a certain diet, participating in

sermons, proselytizing, or not participating in certain activities (SHRM report, 2008).

Religious discrimination is when an employee/applicant is treated negatively based on his

or her religious beliefs and the certain religious observances or practices that follow.

Discrimination can also occur based on the physical or cultural traits, such as clothing, looks, or

accents. It may also involve different treatment due to any affiliations or associations to a

religious group including marriage to such an individual or can occur merely based on perception

of the individual (EEOC).

Historical Perspective

Religious discrimination and harassment have existed as long as people from different

faiths have been working together, but in modern day society there are agencies that monitor and

help with such issues alongside discrimination based on race, gender et cetera. Figure 1 shows

the rise of receipts (the blue column) received by the EEOC in connection to religious

discrimination. The orange column shows that after the maximum of 180 days the EEOC have to

investigate the charge, it has found no reasonable cause to proceed with a mediation, arbitration,

or lawsuit. The trend in religious discrimination is rising, and unfortunately over 50 percent each

year are found to have no reasonable cause to proceed with legal actions of one form or another.

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 5

Figure 1: EEOC Religious Discrimination Current and Historical Data.

In order to explain the rise of these receipts there is a need to look at the change of the

workforce and society in general. America has the past decades experienced an increased

diversification in ethnicity, culture, language, and religion as well as the country is seemingly

getting smaller due to the rise of the internet and social media. The global economy, no doubt, is

a huge contributor to this change, bringing employees from all over the world as well as

Americans traveling to foreign countries in pursuit of getting ahead in their career. When people

of many cultures, races, and religions come together, there exists a potential for more issues that

can arise such as religious discrimination. One also has to distinguish between if it is an idea that

is being discussed or criticized or if it is an attack on the personal characteristics or status of an

individual. However frustrating and maddening the first may be, it is still not religious

discrimination as the latter may be.

Political crisis, war or terrorist attacks, can influence the mindset of people especially

with the 24 hour news cycle and biased media coverage. The “enemy” suddenly becomes all

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Religious Discrimination - History

Receipts No reasonable cause

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minorities that share the religion, ethnicity, or background as the perpetrators and are susceptible

to backlash. The backlash can take multiple forms such as “acts of intimidation, harassment,

verbal abuse, and physical violence against persons and/or property” (Bakalian, 2005, p. 7). The

first Gulf War (1990-91), the World Trade Center bombing (1993), the attack on the World

Trade Center on 9/11- 2001, the terrorist bombings in London (2005), the Danish cartoon

incident, and the wars in Afghanistan and Iraq all have Islam in common (Bakalian, 2005).

“American Muslims have been singled out for particularly egregious treatment following the

September 11 tragedy” (Stubbs, 2003, p. 116). A rise in the receipts in 2011 could well be

caused by the ten year anniversary of the attack, but unfortunately, the data does not indicate of

which religion the claimant has. It is, however, plausible to think that the majority of those

receipts would be Muslims or “Arab-looking people” (Stubbs, 2003) since they have been

targeted based on the backlash caused by the war on terror and the media coverage thereof.

According to the EEOC about 20 percent of the filings with the EEOC come from Muslims

which has been somewhat consistent the past decade. The second highest filing amount is Jews

at 8.8 percent (Wilkie, 2015).

Generally, there has been an increase in religious diversity in organizations and with the

increase, the number of charges based on religious discrimination filed with the EEOC has more

than doubled from 1992 to 2007 (Earp, 2008). The logical response to such statistics would be to

increase the awareness, create functioning policies and increase awareness of the issue.

However, according to a religious accommodation snapshot by Cunningham, Borstorff and Clark

(2011), almost 75 percent of the sample are unaware or lack any religious accommodation

policies. Furthermore, almost 60 percent indicated that their organization did not have a religious

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 7

discrimination/harassment policy (Cunningham, 2011). While this is only a snapshot, the

problem is obvious and concerning.

Legislation concerning Religious Discrimination

The First Amendment (passed in 1791) grants strong legal protection to religious activity

although the government is less protected if it speaks religiously than the employer/employee

who speaks as a private party (Berg, 1999). Title VII of the Civil Rights Act of 1964, also grants

protection from religious discrimination. Title VII states: “Employers must reasonably

accommodate employees’ sincerely held religious beliefs, observances, and practices when

requested, unless accommodation would impose an undue hardship on business operations”

(SHRM report, 2008, p. 6). However, it clearly distinguishes between religious speech and

activity in the common workplace and religious speech and activity in non-profit, religious

communities, granting an exemption to religious organizations from liability for religious

discrimination in hiring decisions (Berg, 1999). Thus, a church may discriminate against

applicants for a job based on the religion of the applicant (because it is an essential job function)

but commercial workplaces may not. Since Title VII is very specific concerning religion,

claiming Bona Fide Occupational Qualification (BFOQ) is not really necessary. In order to be on

the safe side, BFOQ can be utilized by religious corporations, educational institutions,

associations, or societies if the character and purpose are primarily religious. They are exempt

from some federal laws and can hire applicants of the same faith, however, if the employer is a

non-religious organization the religious BFOQ to hire an employee from a specific religion is

rarely successful (Earp, 2008).

Over time, the laws have been amended and some examples are the Sections 102 and 103

of the Civil Rights Act of 1991, which permits jury trials, compensatory and punitive damage in

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 8

intentional discrimination cases (EEOC). EEOC regulation part 1605 – Guidelines on

Discrimination because of Religion from 2014 describes the background information, reasonable

accommodation, and selection practices and clarifies the obligations under Title VII.

Some would think it would just be easier if the law prohibited any religious speech in the

economic sphere and thus peoples workplaces. However, most Americans spends a majority of

their time in those workplaces and according to a SHRM report in 2008, 89% of organizations

answered that they have religiously adverse employees to some degree or a great degree. A

restriction on religious speech and/or behavior could therefore potentially lead to some very

religious individuals to limit their presence in the marketplace and potentially cost the

government more money providing for them in terms of welfare. To set limitations like that

“ignores the reality of people’s social and political lives….and can lead to severe restrictions on

the conscience of those who seek to integrate their lives and to integrate their activities” (Berg,

1999, p. 963). One of the reasons America became popular in the first place was the right to have

whatever religion one chose and so legitimately to be able to have religious beliefs and practice

them in the commercial marketplace is one of the principles America was founded on.

Consequences of Religious Discrimination

Religious based discrimination is on the rise. Each incident of religious discriminations

correlates with negative organizational outcomes. Even though it is only a percentage of all

filings that ends in lawsuits, mediation and settlements are costly as well. As religiosity in the

general population have become increasingly public due to the rise of social media, such as

Facebook and Twitter, organizations that do not promote religious diversity and acceptance have

an increased risk of receiving negative publicity. It can take the form of a bad reputation which

can lead to direct and indirect monetary losses. Those may take form in increased employee

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 9

turnover, decreased sales in certain geographical areas or certain segments of the customer base.

Needless to say religious discrimination can have a bad political outcome and should be if at all

possible mitigated trough well-functioning policies and an active HR department.

Monitory Implications.

As the number of filings of religious discrimination rises so does the monitory expenses

used to pay settlements and court rulings. Another contributing factor is the effectuation of

section 102 and 103 of the Civil Rights Act of 1991 permitting compensatory and punitive

damages. According to Figure 2, there is a steady rise only punctuated by two years (2001 and

2011) which again may have some correlation to the 9/11 attacks. Regardless, in this economy,

spending money on litigation, settlements and lawsuits due to religious discrimination charges is

not wise, since it most likely could have been avoided following best practices and corporate

leadership promoting a diverse and accepting workplace.

Figure 2: EEOC web page – Religious Discrimination Current and historical data.

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Hostile Work Environment

Unfortunately, verbal religious discrimination can result in physical violence or the threat

thereof when the problem has not been resolved fast enough. Stubbs claims that in the aftermath

of the 9/11 attacks, Arabs, Muslims and Sikhs were murdered as retaliation and over eight

hundred violent crimes were committed against Middle Easterners and those who looked like

them (Stubbs, 2003). While the rage has calmed considerably, the EEOC still reports of cases

where references are made to terrorists and suicide bombers based on the religion of the

employee, such as EEOC v. Swift Aviation Group, et al and EEOC v. Rizza Cadillac et al

(EEOC, 2015a). The 24 hour news cycle and the media coverage can be seen as partly

responsible for the negative connotation of Muslims every time a terrorist attack happens. Sadly,

many are easily influenced by these portraits and such negativity demands a countermeasure in

order to prevent a hostile work environment from developing.

Organizations also need to consider how dress code policies can be oppressive to some.

In the case of the EEOC v. Scottish Food Systems, Inc. d/b/a/Kentucky Fried Chicken an

employee was told she was no longer allowed to wear her modest skirts to work anymore when

KFC was purchased by Scottish Food Systems. The company fired her for not wearing pants to

work even though it was against her religious beliefs and they had to pay her $40,000, plus

additional relief pay, and return her to work (EEOC, 2015b). Abercrombie and Fitch had to pay

$71,000 to two Muslim teens who were told they could not wear their hijabs (religious

headscarves) to work (EEOC, 2015a).

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 11

Low Job satisfaction and Performance

A report from SHRM (2008) found that employee morale and retention are highly

affected by having some form of religious accommodation like being allowed to decorate ones

work space, various religious holidays and time off for religious observance. When employees

become dissatisfied with their work, they end up costing the organization more money by

producing less. An additional study by Hackermann and Verb (2014) found that religious

discrimination is highly correlated with low job satisfaction and high intent to leave. Meaning,

that the employee simply quits their job in order to work at a different organization thus resulting

in loss of human capital. Turnover is also time consuming and expensive. Snell and Bohlander

(2012) postulate turn over to cost up to $30,000 for entry level positions and millions of dollars

for CEO positions.

Best Practices

There are numerous consequences of religious based discrimination and organizations

should be proactive in preventing this from happening. They can do this by creating clear

policies and communicating those to the employees using pamphlets, posters and the like, made

publicly available in all break rooms and gathering points throughout the organization. The

Human Resource Department could conduct anti-harassment training sessions, and other forms

of education for all levels of employees and employers, making sure that managers recognize

employee needs and create a venue for employees to solve their issues before filing a lawsuit or

leaving the organization. The organizations should allow flexible scheduling utilizing the

diversity come holidays in order to reasonably accommodate employee religious needs. If that

fails voluntary substitutes and “swaps”, lateral transfer and change of job assignments could be

the solution (EEOC). Organizations would also benefit from modifying workplace practices,

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 12

policies, and procedures; permitting time for prayer and other forms of religious expression, such

as allowing holiday decorations of work stations. Finally, corporations can benefit by having a

workplace chaplain or other spiritual guide whose primary function is to provide employee care

(Nimon, 2009). The chaplain does not necessarily have to perform any religious capacity for

those of different faith but can function as a neutral third party who provides a listening ear when

necessary.

Training and Development

In order for organizations to be able to create the work environment they want, training in

diversity and the benefits thereof has to be conducted for all levels of employees. The employer

should also participate in those training sessions as they show the sincerity of their policies and

the upper management support. Every supervisor and manager must be knowledgeable in all

aspects of religious discrimination including the options to file a complaint, in order to

competently intervene if any issues are on the rise as well as capably handling any situation. A

Google search conducted November 23, 2015 using the search words “Compliance training,

religious discrimination” gave 428,000 results and so there are multiple companies that make

such training sessions available for purchase. However, it would probably be more beneficial to

invest in a well-functioning HR department and have them contact different religious

organizations with invitations to give a speech as well as inviting a speaker from an interfaith

organization (Bakalian, 2005). The EEOC also provides training free of cost to any who are

interested.

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 13

Clearly Established and Communicated Policies Positing Zero Tolerance

In order to decrease the possibility of religious discrimination in the workplace it is

important to have and well communicated policies in place. Those policies should encompass an

anti-harassment policy that clearly explains what is forbidden, how to go about reporting any

issues, while reassuring that no retaliation of any charges will occur and provide several options

for filing/complaining (Nimon, 2009). There should also be a policy describing the religious

accommodations offered by the organization as well as a human resource contact person. In

order to prevent religious discrimination from happening, the policies must exist, be visible and

easy to understand and more importantly, a policy has to be enforced in order to be successful.

Organizational Practices that Accommodate Religious Differences.

Two of the most common religious accommodations offered by workplaces are taking the

different religions into account when planning holiday-related events (55%) and allowing

flexible scheduling to accommodate employees’ religious practices at work (43%) (SHRM

report, 2008, p. 7). Allowing employees to figure out a schedule that takes different religions into

account increases job satisfaction but also job efficiency. An example could be a Muslim

working during Easter, giving a Christian the time to spend with his family and Christians

working more shifts during Ramadan, the holy month for Muslims. When employees feel that

their workplace is willing to accommodate reasonable requests, it reduces employee turnover and

increase employee loyalty towards the organization.

Conclusion

The United States is the most religiously diverse country in the western hemisphere and

have managed to avoid too many religion based conflicts. However, with the immigration and

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 14

globalization there is an increased diversity in the workplace that includes religious practices and

beliefs. It is important for organizations to keep up with the development, since the consequences

of not doing so can be expensive both in human capital and money. Even though statistics from

EEOC show a rise in religious discrimination filings, it does not seem like the organizations

follow suit and invest in efficient anti-harassment policies, religious discrimination policies and

reasonable accommodation policies, which can be a costly mistake in the long run.

Unfortunately, the 24 hour news cycle informs us of events such as wars, political crisis

and terrorist attacks and the media are quick to label the criminals and terrorists as belonging to a

certain religion. Organizations should prevent monetary losses, hostile work environments, and

loss of job satisfaction and performance by increasing the awareness of diversity and religion and

focus on the positive aspects of these. It would demand an efficient and competent HR

department and the support from all management levels, but could make a significant impact on

the bottom line by reducing employee turnover, increasing productivity and securing a positive

reputation in the different media used by the stakeholders.

RELIGIOUS BASED DISCRIMINATION IN THE WORKPLACE 15

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