UNIT VI Employment Law ***FOR MATHGUY 18***

BHR 3565, Employment Law 1

Course Learning Outcomes for Unit VI Upon completion of this unit, students should be able to:

6. Identify and explain government regulations regarding religious discrimination, national origin discrimination, age discrimination, and disability discrimination. 6.1 Describe how employers can reasonably accommodate an employee’s religious beliefs. 6.2 Contrast the protection of religion provided by the First Amendment to the U. S. Constitution

and the prohibition of discrimination based on religion provided by Title VII of the Civil Rights Act.

6.3 Explain how the Immigration Reform and Control Act extends the prohibition of discrimination based on national origin provided by Title VII of the Civil Rights Act.

6.4 Identify when an employer may enforce a policy that only allows English to be spoken in the business.

Reading Assignment Chapter 14: Religious Discrimination Chapter 15: National Origin Discrimination

Unit Lesson As we have seen, there are several categories or classes that are protected from discrimination in employment by Title VII of the Civil Rights Act. One of those protected classes is religion – it is improper for an employer to take negative employment action against a person on the basis of his or her religious beliefs. On its face, that seems to be a simple prohibition – an employer cannot refuse to hire someone because he or she belongs to a certain religion, and that prohibition seems to follow naturally from the provisions of the First Amendment to the U.S. Constitution, which prohibits the establishment of a national religion and prohibits interference with a person’s free exercise of his or her religious beliefs. Of course, the prohibition of discrimination in employment on the basis of religion is not quite that simple. First, the First Amendment to the U.S. Constitution prohibits government from establishing a religion and prohibits government from interfering with a person’s free exercise of his or her religious beliefs; the First amendment does not apply to private employers. However, Title VII’s prohibition of discrimination on the basis of religion in employment is consistent with the philosophy of the First Amendment that people should be free to exercise their religious beliefs. Though it is clear that an employer cannot refuse to hire an applicant because of the applicant’s religious beliefs in most cases, there may be situations when an applicant’s religious beliefs do determine whether he or she is qualified to do a particular job. For instance, can a university operated by a religious order require that employees of the university subscribe to the beliefs of that religious order? The answer is “maybe.” While the religious beliefs of a groundskeeper at the university will probably not affect the ability of that groundskeeper to do his or her job, so the religious order cannot require that applicants for positions as groundkeepers possess specific religious beliefs, faculty members who teach at that university, especially those faculty members who teach religious subjects, may be required to support the religious beliefs of the religious order that operates the university. Therefore, a concept that we have encountered before – bona fide occupational qualification (BFOQ) – applies in certain situations and can allow an employer to select employees on the basis of their religious beliefs (Moran, 2014).

UNIT VI STUDY GUIDE

Discrimination in Employment on the Basis of Religion and National Origin

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Also, sometimes an employee’s religious beliefs can be inconsistent with his or her work obligations. For instance, adherents to certain religions are required by their religious beliefs to pray at certain times during the day or to observe certain Sabbath days when they are not allowed to work. Can an employer refuse to hire an applicant whose religious beliefs require him or her to pray at certain times during the day or to not work on certain days of the week? The answer is that employers must make reasonable accommodations to allow employees to exercise their religious beliefs. Determining what a reasonable accommodation is can be a difficult decision to make because the law does not specify the parameters of what is reasonable. What is reasonable depends on the specific circumstances of each case – what the employee’s religious beliefs require, what the employee’s job requires, and what the employer’s business requires. Allowing an employee a few minutes a few times each day to offer the prayers of his or her religion may be reasonable, while allowing an employee a month off each year to make a religious pilgrimage may not be reasonable (Moran, 2014). Another issue that can arise in this regard, though they might be considered to be extreme, is what qualifies as a religion and how an employee who joined a particular religion after he or she became employed is to be treated. The first issue – what is a religion – is not often confronted, but when it is, it can be a very difficult issue. Of course, the “established” religions are well-known and their beliefs and the requirements of adherents are well-understood, but what about “new” religions and beliefs outside of the mainstream? For instance, is witchcraft a religion? What about traditional Native American religions? The courts have had some difficulties dealing with these issues. For instance, in the United States Supreme Court case of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1989), employees claimed to be members of a Native American religion whose rites sometimes involved smoking peyote, a kind of cactus containing psychoactive substances similar to mescaline. When these employees failed drug tests administered by their employer, the employees were fired for violating the employer’s policy against illegal drug use, and they were denied unemployment benefits because state law (Oregon) prohibited employees discharged for illegal drug use from receiving unemployment benefits. The case came to the United States Supreme Court on the question of whether the State of Oregon’s law about unemployment benefits not being paid to employees who were fired for illegal drug use violated the First Amendment right to free exercise of religious beliefs. In that case, the United States Supreme Court held that the right to free exercise of religion was not violated by laws designed to discourage illegal drug use even in the context of religion. While the case raised the constitutional issue of free exercise of religion, it seems pretty clear that if the question presented was whether the firings amounted to religious discrimination, the outcome would have been the same. Another category or protected class under Title VII is national origin – an employer cannot discriminate in employment on the basis of a person’s national origin. Although the concepts may be similar, it is important to note that discrimination on the basis of national origin is not necessarily the same as discrimination on the basis of color (which is a different protected class under Title VII) or discrimination on the basis of citizenship (which is not a protected class under Title VII). Discrimination on the basis of national origin is essentially a question of heritage rather than physical characteristics, but there are a few difficult issues that can arise in the context of discrimination on the basis of national origin (Moran, 2014). First, as mentioned above, the protected class here is national origin, not citizenship, so an employer who discriminates against someone on the basis of his or her citizenship does not violate Title VII. However, in 1986, Congress enacted the Immigration Reform and Control Act that, among other things prohibited discrimination on the basis of citizenship in many cases. Essentially, the Title VII prohibition against discrimination on the basis of national origin has been extended to discrimination on the basis of citizenship (Moran, 2014). However, the Immigration Reform and Control Act has also raised a different issue with regard to employment and citizenship in that it requires employers to confirm that employees are legally allowed to work in the United States. That is, while the Immigration Reform and Control Act prohibits employers from discriminating on the basis of citizenship (and the best way to avoid discrimination on the basis of citizenship is simply not to ask an applicant about his or her citizenship), the Act also requires employers to inquire into an applicant’s citizenship and to prove that he or she is legally able to work in the United States. Fortunately, the solution to that seeming inconsistency is that the Act affirmatively requires an employer to inquire into employees’ citizenship, so that inquiry does not, in itself, constitute discrimination on the basis of citizenship.

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References Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1989). Moran, J. J. (2014). Employment law: New challenges in the business environment (6th ed.). Upper Saddle

River, NJ: Prentice Hall.

Learning Activities (Non-Graded) Case Study Please locate and read Case 14.3, George Daniels v. City of Arlington, Texas, found on page 348 of the textbook. Once you have read and reviewed the case scenario, respond to the following questions:

1. Do you agree with the court’s decision? 2. How can the freedom of religion and the freedom of speech be balanced against an employer’s dress

code? 3. Why do some people insist on visibly wearing religious symbol paraphernalia, and why do some

people find this practice intolerable? Your response should be a minimum of 700 words in length. You are required to use at least your textbook as source material for your response. All sources used, including the textbook, must be referenced; paraphrased and quoted material must have accompanying citations per APA guidelines. Non-graded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information.

Key Terms 1. Bona fide occupational qualification 2. Citizenship 3. English-only rule 4. Ethnic harassment 5. National origin 6. National origin discrimination 7. Reasonable accommodation 8. Religion 9. Religious belief

10. Religious discrimination