Religion in the Workplace

Religious Protection in the Workplace

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees or prospective employees because of their religion, and it also requires employers to “reasonably accommodate” the religious practices of employees as long as doing so does not result in “undue hardship” to the employer.

Historically, the phrase “reasonable accommodations” has been construed to include such steps as scheduling changes, voluntary shift swaps, lateral transfers, and other policy or practice modifications. An increasing number of employees, however, say that companies are disregarding their obligations.

Further, federal agencies and courts across the United States appear to be expanding the right of employees to engage in religious practices while they are on the job ' in effect creating a protected class of workers even if their on-the-job religious practices conflict with the image an employer is trying to cultivate.

In 2012, for example, California Governor Jerry Brown signed AB-1964 into law, creating a new class of protections for employees that actually goes farther than existing federal and California legislation in protecting employees' right to religious dress and grooming practices. Among other provisions, it declares that segregating such an individual from the public or from other employees “is not a reasonable accommodation.”

Similarly, New York City and Oregon have enacted legislation to give employees more leeway to comply with their religious beliefs while they are at work. New York law requires employers to accommodate the religious observance of employees and applicants for employment unless doing so would cause an “undue hardship.”

Oregon's Workplace Religious Freedom Act (ORS 659A.033) prohibits an employer from imposing an occupational requirement that restricts the ability of an employee to wear religious clothing in accordance with the employee's sincerely held religious beliefs, to take time off for a holy day or to take time off to participate in a religious observance or practice.

The EEOC Steps Up Discrimination Filings

The number of cases resolved by the U.S. Equal Employment Opportunity Commission (EEOC) nearly doubled from 2,187 in 1999 to 4,219 in 2012. One lawsuit filed by attorneys with the Columbus, OH, chapter of the Council on American-Islamic Relations (CAIR) on behalf of a Columbus man, alleges religious discrimination by his former employer. Yusuf Sufi, a Somali, claimed his employer, Exel, fired him after he asked for a religious accommodation to leave work for one hour in order to go to a local mosque to say his Friday prayers, which are mandatory in the Muslim faith.

According to the lawsuit, Sufi was granted a religious accommodation during his first few months at the company and was allowed to leave to pray, but that was revoked when his managers changed. Romin Iqbal, Sufi's attorney, said that his client was told he could not go to the human resources department to discuss the problem ' and was eventually fired. Iqbal said the problem is even more widespread, pointing to a complaint he filed with the EEOC regarding 18 other employees at Exel who were allegedly fired for praying at work.

In a statement released by Exel, the company said it is ” ' committed to providing an equal opportunity workplace.”

Exel also said the allegations outlined in a CAIR-Columbus press release “neither conform nor align” with the company's workplace practices. “Exel has not terminated anyone for religious practices or requests for accommodations.”

Will These Cases Reach the Supreme Court?

To date, the evolution of the law is taking place state-by-state, and, in some instances, municipality-by-municipality, but it is not unthinkable that the issue could eventually land in the U.S. Supreme Court.

Many of the suits involve alleged discrimination against Muslims, according to a September 2010 article in The New York Times, which noted that although Muslims make up less than 2% of the U.S. population, they accounted for about one-quarter of the religious discrimination cases filed with the EEOC. But others also say they've suffered from employment-related discrimination. See, e.g., EEOC v. Voss Electric Company d/b/a Voss Lighting, Civil Case No. 12-CV-330-JHP-FHM. In that case, a prospective employee was questioned about his church membership by a branch manager, who allegedly did not like the applicant's answers. The applicant did not get the job.

The EEOC sought injunctive relief, including a court order prohibiting Voss Lighting from any further discrimination against applicants on the basis of their religious beliefs or non-beliefs. The parties entered into a consent decree and the case was dismissed in 2013.

A New Class of 'Protected Employees'

Currently, states like California, New York and Oregon all operate under “at-will” employment statutes, under which an employer can theoretically fire an employee for good cause or for no cause. But recently passed anti-discrimination legislation in those states essentially creates classes of protected employees, effectively limiting the authority of employers to terminate workers in certain circumstances.

In this new and evolving environment, employers may wish to be proactive, taking a flexible stance when it comes to accommodating a worker's ability to comply with his or her religious beliefs during business hours and at the place of business, even for beliefs that do not necessarily qualify as religious creeds.

For example, a vegan might ask the company to cancel a team-building trip to a steak restaurant, or an office worker who practices Yoga might ask an employer to set aside a spare room for voluntary sessions of “secular, non-sectarian meditation.”

Employers should be sensitive to those kinds of requests, and should also consult with their legal advisers about developing corporate policies that address the exercise of religious freedom in the workplace. They should also consider establishing training programs that ensure, for example, that recruiters and others who conduct interviews are aware they cannot question a job applicant about their religious beliefs or affiliations. Further, while they can ask a potential employee about his or her availability to work on weekends, they cannot ask if the applicant observes specific religious holidays.

The concerns even extend to the way a company recruits employees, since advertising through church or other religious channels could be perceived as discriminating against other religions, particularly if church-based recruitment is the only channel that is used.

Working with a legal adviser, a company should also establish written objective criteria for evaluating candidates, should apply the criteria on a consistent basis, and should develop and implement ways for employees to register complaints about alleged lapses without fear of retaliation.

Conclusion

It is clear that courts and regulatory agencies are paying more attention to the issue of workplace religious discrimination, and companies would be well advised to take steps to reduce the chance of being named as a defendant in such a case.

Brian Inamine is a Los Angeles-based shareholder in the national law firm LeClairRyan. He can be reached at [email protected].

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A series of recent employment law cases should serve as a wakeup call to companies about the dangers of trying to restrict the ability of employees to practice their religious beliefs, even in the workplace.

In one recent high-profile case, a jury awarded actual damages and substantial punitive damages to a former employee, finding that the company subjected her to a “hostile work environment” after she began wearing a religious head scarf, or hijab.

The former employee alleged that her supervisors engaged in a pattern of offensive and discriminatory conduct that began when she converted to Islam in 2005, six years after she, a former Christian, began work at the company, which has a written policy addressing religious discrimination. It will reportedly appeal the verdict.

Religious Protection in the Workplace

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees or prospective employees because of their religion, and it also requires employers to “reasonably accommodate” the religious practices of employees as long as doing so does not result in “undue hardship” to the employer.

Historically, the phrase “reasonable accommodations” has been construed to include such steps as scheduling changes, voluntary shift swaps, lateral transfers, and other policy or practice modifications. An increasing number of employees, however, say that companies are disregarding their obligations.

Further, federal agencies and courts across the United States appear to be expanding the right of employees to engage in religious practices while they are on the job ' in effect creating a protected class of workers even if their on-the-job religious practices conflict with the image an employer is trying to cultivate.

In 2012, for example, California Governor Jerry Brown signed AB-1964 into law, creating a new class of protections for employees that actually goes farther than existing federal and California legislation in protecting employees' right to religious dress and grooming practices. Among other provisions, it declares that segregating such an individual from the public or from other employees “is not a reasonable accommodation.”

Similarly, New York City and Oregon have enacted legislation to give employees more leeway to comply with their religious beliefs while they are at work. New York law requires employers to accommodate the religious observance of employees and applicants for employment unless doing so would cause an “undue hardship.”

Oregon's Workplace Religious Freedom Act (ORS 659A.033) prohibits an employer from imposing an occupational requirement that restricts the ability of an employee to wear religious clothing in accordance with the employee's sincerely held religious beliefs, to take time off for a holy day or to take time off to participate in a religious observance or practice.

The EEOC Steps Up Discrimination Filings

The number of cases resolved by the U.S. Equal Employment Opportunity Commission (EEOC) nearly doubled from 2,187 in 1999 to 4,219 in 2012. One lawsuit filed by attorneys with the Columbus, OH, chapter of the Council on American-Islamic Relations (CAIR) on behalf of a Columbus man, alleges religious discrimination by his former employer. Yusuf Sufi, a Somali, claimed his employer, Exel, fired him after he asked for a religious accommodation to leave work for one hour in order to go to a local mosque to say his Friday prayers, which are mandatory in the Muslim faith.

According to the lawsuit, Sufi was granted a religious accommodation during his first few months at the company and was allowed to leave to pray, but that was revoked when his managers changed. Romin Iqbal, Sufi's attorney, said that his client was told he could not go to the human resources department to discuss the problem ' and was eventually fired. Iqbal said the problem is even more widespread, pointing to a complaint he filed with the EEOC regarding 18 other employees at Exel who were allegedly fired for praying at work.

In a statement released by Exel, the company said it is ” ' committed to providing an equal opportunity workplace.”

Exel also said the allegations outlined in a CAIR-Columbus press release “neither conform nor align” with the company's workplace practices. “Exel has not terminated anyone for religious practices or requests for accommodations.”

Will These Cases Reach the Supreme Court?

To date, the evolution of the law is taking place state-by-state, and, in some instances, municipality-by-municipality, but it is not unthinkable that the issue could eventually land in the U.S. Supreme Court.

Many of the suits involve alleged discrimination against Muslims, according to a September 2010 article in The New York Times, which noted that although Muslims make up less than 2% of the U.S. population, they accounted for about one-quarter of the religious discrimination cases filed with the EEOC. But others also say they've suffered from employment-related discrimination. See, e.g., EEOC v. Voss Electric Company d/b/a Voss Lighting, Civil Case No. 12-CV-330-JHP-FHM. In that case, a prospective employee was questioned about his church membership by a branch manager, who allegedly did not like the applicant's answers. The applicant did not get the job.

The EEOC sought injunctive relief, including a court order prohibiting Voss Lighting from any further discrimination against applicants on the basis of their religious beliefs or non-beliefs. The parties entered into a consent decree and the case was dismissed in 2013.

A New Class of 'Protected Employees'

Currently, states like California, New York and Oregon all operate under “at-will” employment statutes, under which an employer can theoretically fire an employee for good cause or for no cause. But recently passed anti-discrimination legislation in those states essentially creates classes of protected employees, effectively limiting the authority of employers to terminate workers in certain circumstances.

In this new and evolving environment, employers may wish to be proactive, taking a flexible stance when it comes to accommodating a worker's ability to comply with his or her religious beliefs during business hours and at the place of business, even for beliefs that do not necessarily qualify as religious creeds.

For example, a vegan might ask the company to cancel a team-building trip to a steak restaurant, or an office worker who practices Yoga might ask an employer to set aside a spare room for voluntary sessions of “secular, non-sectarian meditation.”

Employers should be sensitive to those kinds of requests, and should also consult with their legal advisers about developing corporate policies that address the exercise of religious freedom in the workplace. They should also consider establishing training programs that ensure, for example, that recruiters and others who conduct interviews are aware they cannot question a job applicant about their religious beliefs or affiliations. Further, while they can ask a potential employee about his or her availability to work on weekends, they cannot ask if the applicant observes specific religious holidays.

The concerns even extend to the way a company recruits employees, since advertising through church or other religious channels could be perceived as discriminating against other religions, particularly if church-based recruitment is the only channel that is used.

Working with a legal adviser, a company should also establish written objective criteria for evaluating candidates, should apply the criteria on a consistent basis, and should develop and implement ways for employees to register complaints about alleged lapses without fear of retaliation.

Conclusion

It is clear that courts and regulatory agencies are paying more attention to the issue of workplace religious discrimination, and companies would be well advised to take steps to reduce the chance of being named as a defendant in such a case.

Brian Inamine is a Los Angeles-based shareholder in the national law firm LeClairRyan. He can be reached at [email protected].

'