1. Chapter 11 Religious Discrimination
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2. 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

3. 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
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

4. Major Religions of the World—Ranked by Number of Adherents

5. 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

6. 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)

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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?