ACCOMMODATING RELIGION IN THE WORKPLACE April 3, 2014 Presented By: Renee C. Mattei Myers, Esquire Eckert Seamans Cherin & Mellott, LLC 213 Market Street – 8th Floor Harrisburg, PA (717) *No statements made in this seminar or in the written materials/power point should be construed as legal advice pertaining to specific factual situations.

Laws Prohibiting Religious Discrimination Title VII of the Civil Rights Act of 1964 State Anti Discrimination Laws (example: Pennsylvania Human Relations Act; New Jersey Law Against Discrimination) Local Ordinances 2

Religious Discrimination Prohibited in all aspects of employment: Hiring Termination Pay Promotions Benefits Job assignments Includes prohibition against harassment because of religion. 3

Preventing Discrimination Create Good Hiring Policies Establish Zero Tolerance Policy Against Harassment and Discrimination Be Proactive/Train Employees Provide Accommodations Where Appropriate Promptly Investigate Complaints Avoid Retaliation 4

Good Hiring Policies Establish objective written criteria for evaluating applicants Ask same questions of all applicants Beware of questions unrelated to job duties that have tendency to reveal religious beliefs/practices. Train all employees involved in process! 5

Preventing Harassment/Discrimination Anti-Discrimination/Anti-Harassment policy: Prohibition (zero-tolerance) Must be publicized to employees (handbooks; postings) Training Clear and Accessible Complaint Procedure Prohibition Against Retaliation 6

Be Proactive Training Train all employees on anti-discrimination and anti-harassment policies. Train managers and supervisors How to avoid claims How to respond to complaints Avoid decisions based on stereotypes Be proactive in managing disputes. 7

Religious Accommodations Employers are required to accommodate “sincerely held religious beliefs, practices or observance that conflict with work rules” Undue Hardship (more than de minimis) * different standard than ADA accommodations. 8

Sincerely Held Religious Belief If there is a bona-fide doubt as to religious sincerity—employer may make limited inquiry. Factors: Inconsistent behavior Accommodation requested desirable likely to be sought for secular reasons (i.e. weekends off) Timing of request makes it suspect 9

Religious Accommodations Review requests individually; avoid stereotypes. Don’t allow supervisors to make decisions about accommodations independently. Consistency in treatment. Cooperation and flexibility 10

Examples: Schedule changes Change in job tasks Exception to dress/grooming rules Use of work facility for religious observance Accommodating prayer, religious expression 11

Reasonable Religious Expression Allow reasonable religious expression consistent with other types of personal expression to extent not disruptive or harassing Example: displaying personal items at desk. 12

Workplace Proselytizing Can become an issue if harassing to other employees. Factors: Pervasiveness Impact on coworkers and work performance Capacity to take steps to accommodate both the proselytizing employee and aggrieved co- workers. 13

Prayer Groups May be permitted as long as there are not employment consequences to joining/non- joining. Employees should not feel pressured to attend. Should not be prohibited if employer allows access to lunchroom/conference rooms to other groups during non-work hours. 14

Religious Posters or Displays Employer not required to allow displays to the extent it may be perceived as an expression of the employer’s religious views. Example: Small religious pictures at work area vs. large religious display in common or public area (lunchroom or lobby). 15

Religious Dress Claims for undue hardship upheld for legitimate safety reasons (prohibiting headscarf's in prisons or around machinery) Personal appearance policy-public image rationale (facial piercings) But Compare: dress code that exists purely to promote brand image. 16

Undue Hardship Undue hardship for purposes of religious accommodation: more than de minimis cost or burden. Examples: Infringe on rights of other employees Diminish workplace safety Cost a significant amount of money Reduce workplace efficiency 17

Conducting Investigations of Claims of Religious Discrimination Promptly investigate complaints. Take all complaints seriously. At conclusion of investigation, take prompts and effective remedial action based on outcome of investigation. Document investigation and outcome. 18

Preventing Retaliation Implement policies and practices that require HR approval before adverse action taken against employee who has filed complaint. Reduce risk of claims by clearly documenting business reasons for any post complaint discipline/action. 19

Thank You! 20

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