Muslim flight attendant refuses to serve alcohol

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