Chapter 11 Religious Discrimination Copyright  2015 McGraw-Hill Education.  All rights reserved.  No reproduction or distribution without the prior written consent of McGraw-Hill Education.

Learning Objectives Discuss background of religious discrimination, and how it is similar to, and differs from other protected characteristics Understand Title VII’s broad definition of religion for discrimination purposes Explain religious conflicts under Title VII and give examples Define ‘reasonable accommodation’ and its ‘undue burden’ limit Describe religious harassment and give examples Recognize the relationship between unions and workplace religious conflicts Recognize that there are ways management can avoid and minimize religious discrimination conflicts via prevention

This is Not Your Forefathers’ Religious Discrimination (1) Religion’s role in human history and governance: e.g., Henry VIII’s break from the Catholic Church through JFK’s candidacy, to today https://www.youtube.com/watch?v=-WdgjS5j2po The U.S. Constitution coverage, based on colonial history First Amendment: Establishment and Free Exercise clauses form “separation of church and state” Title VII prohibits discrimination in employment based on religion

Major Religions of the World—Ranked by Number of Adherents

Major Religions in the U.S. Top Organized Religions Christianity 76.5% Judaism 1.3 Islam 0.5 Buddhism Hinduism 0.4 Unitarian Universalist (‘organized’ religion?) 0.3 Wiccan/Pagan/Druid 0.1

This is Not Your Forefathers’ Religious Discrimination (2) Small number of EEOC claims On the rise generally since 1993 Spike after September 11, 2001/hostility to Islam Traditional Title VII concern: discrimination based on difference (Catholic, Jewish, Muslim – overlap with national origin) Increase in issues based on fundamentalist Christian activities, practices, values conflicts Sharing the faith vs. company policies Public employees: constitutional guarantees for federal, state, and local government employees when government is employer Due process, Equal protection, Freedom of religion Private employees: Title VII guarantees protection from religious discrimination Religious Institutions: Largely exempt regarding Title VII (professor thinks religious institutions are totally protected from Title VII compliance, regardless of position) Ministerial exception (recall: Gannon case) BFOQ for some other staff positions (e.g., academia) Even some secular activities exempted (e.g., LDS gym janitor case)

This is Not Your Forefathers’ Religious Discrimination (3) Two Key Private Sector Concepts: Duty to reasonably accommodate: The employer’s Title VII duty to seek to avoid conflict between workplace policies and employee’s religious practices or beliefs Undue hardship: Burden to accommodate employee’s religious conflict too onerous for employer to have to bear (‘accommodation’ limit) Cases rarely turn on definition of ‘religion,’ infra

What is Religion? (1) Context: consider this category vs. others: Choice vs. inherent characteristic, but Unrational (faith-based), values-driven, core ID factor Key considerations for determining whether ‘religion’ is in-play: Is the belief sincere and closely held? Does it take the place of religion in the employee’s life? That’s why Atheism & white supremacy considered Title VII religions according to courts (if it meets these two conditions) Case: Peterson v. Wilmur Communications

What is Religion? (2) Employer duty to accommodate Attaches to the conflict itself, not to when the conflict arises (after-hire conversions protected) Applies to religious practices, not religious beliefs (remember you can’t discriminate against one’s religious belief with respect to employment decisions; we are talking about ER reasonably accommodating religious practices in work place) Worship rituals (e.g., ablutions) Proselytizing at work (e.g., pro-life ‘mission’) Attire, grooming Scenario 1 Conflicts like Buonanno v. AT&T case: diversity policy vs. religious beliefs Scenario 3

Religious Conflicts: prima facie case Requirements for a prima facie case Employee has a sincere religious belief that conflicts with an employment requirement Employee informed the employer of the conflict Employee was discharged or disciplined for failing to comply with the conflicting employment requirement Scenario 2 Once prima facie case is established the burden shifts to the employer to prove reasonable accommodation was offered OR undue hardship

Religious Conflicts -- process Employer considerations Make sure the basis for conflict is a religious one Attempt a good-faith accommodation of the religious conflict Understand the limit of employer duty The right to be free of religious discrimination is not absolute

Employer’s Duty to Reasonably Accommodate The duty to accommodate depends on specific situation – get creative Iterative process – engage employee regarding his/her interests, suggest possibilities Employer relieved of liability if Employee was reasonably accommodated In intractable cases, good-faith attempt was made to reasonably accommodate the employee

Employee’s Duty to Cooperate in Accommodation Under Title VII, employer is not required to resolve conflict in the way the employee wants Accommodation need not be the most reasonable Case: Chalmers v. Tulon Company

Factors determining reasonableness of accommodation Whether the employer made an attempt at accommodation Size of the employer’s workforce Type of job in which the conflict is present Employer’s checking with other employees to see if anyone was willing to assist in the accommodation Financial cost of accommodation Administrative, operational burdens of accommodation and effects on production

Factors in ‘Undue Hardship’ Factors determining undue hardship (limit): Nature of the employer’s workplace Type of job needing accommodation Financial cost of the accommodation Willingness of other employees to assist in the accommodation Possibility of employee transfer and its effects What is done by similarly situated employees Number of employees available for accommodation The burden of accommodation on the union (if any) Emergencies

Undue Hardship -- Conclusion Courts find undue hardship if an employer must: violate the seniority provision of a valid collective bargaining agreement pay out more than a “de minimis” (i.e. MINIMUM) cost to replace a worker who has religious conflicts Relatively low standard; contrast Disability cases in Chap 13 force other employees to trade places with the employee who has a religious conflict Case: TWA v. Hardison

Religious Harassment Two situations: “heresy harassee” and martyr Under the guidelines set forth by President Clinton, federal employees: Should be permitted to engage in private religious expression in personal work areas Should be permitted to engage in religious expression with fellow employees Are permitted to engage in religious expression directed at fellow employees To avoid liability employer policies should: Protect employees from those religious employees who attempt to proselytize others who do not wish to be approached about religious matters Protect employees with permissible religious practices who are given a hard time by those who believe differently Make sure that all employees are given comparable opportunities to use workplace time and resources for religious practices

Union Activity and Religious Discrimination Unions are also under a duty to reasonably accommodate religious conflicts Frequent conflicts regarding: Union membership Payment of union dues Picketing and striking It violates Title VII for an employer to discharge an employee for refusal to join the union because of his or her religious beliefs The Establishment Clause

Management Tips Prevention Policy: make sure all employees understand that they are not to discriminate against employees on the basis of religion Keep workplace religious comments and criticisms to a minimum Take all employee notices of religious conflicts seriously After notice of a religious conflict, immediately try to find ways to manage the matter Ask the employee with the conflict for suggestions on solving the problem Ask, but don’t require, other employees to assist Do not challenge that employee’s religious beliefs during a conflict, only practices relevant Document elements of undue hardship – metrics?