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The Legal Boundaries on Religious Discrimination

Thanks to a growing accumulation of immigrants from around the world, claims of religious discrimination against U.S. employers have increased in recent years. Such claims soared after the terrorist attacks of September 11, 2001. At that time, Muslims and people of Middle Eastern descent (or even the appearance of it) experienced American outrage. But today, other religious groups are taking their complaints to the Equal Employment Opportunity Commission (EEOC).What kinds of work-related restrictions can an employer impose on religious employees -- without risking litigation from the EEOC?

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The EEOC itself does not get terribly specific in defining illegal religious discrimination. Decisions must be made "by considering the particular factual context of each case," the Commission states.

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One principle, however, which has guided the EEOC's thinking in such cases is that you cannot justify a discriminatory policy (for example, barring Muslim women from wearing head scarves) out of a fear of how customers might react to a religious display.

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The Number of Religious Discrimination Claims Filed with the EEOC

1997: 1,709

2002: 2,572

2007: 2,880

2012: 3,811

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Recent SettlementsAuto Dealer Settles Lawsuit. United Galaxy Inc., a New Jersey car dealership doing business as Tri-County Lexus, will pay $50,000 and provide other relief to settle a religious discrimination lawsuit filed by the EEOC, the agency announced on November 19.

According to the EEOC's lawsuit, Tri-County Lexus strictly enforced its dress code policy without granting reasonable religious accommodations, and refused to hire a member of the Sikh faith, because of its policy. The applicant's religious beliefs require him to wear a beard, uncut hair and a turban. He applied for an available position as a sales associate, for which he was qualified, the EEOC stated. The dealership requested that the applicant shave his beard, and he refused because of his religious beliefs. As a result, Tri-County Lexus denied him the job, the agency charged.

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Shipping Company Settles Lawsuit. United Parcel Service, Inc. (UPS), the large package delivery company, agreed to pay $70,000 and furnish injunctive relief to settle a religious accommodation lawsuit filed by the EEOC, the agency announced on November 4.

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According to the EEOC, the claimant was a Jehovah's Witness. UPS hired him as a part-time loader at its Saddle Brook, N.J. facility in April 2011. Shortly after his new-employee orientation, the claimant requested a schedule change in order to attend an annual religious service. His supervisor denied the request for a schedule accommodation and the claimant was terminated from his job a few days later.

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The EEOC contended that the refusal to grant the request for a schedule accommodation and the decision to terminate the claimant constituted religious discrimination. The lawsuit further alleged that after the claimant was terminated from his job, he was placed on a company-wide "do not rehire" list and was unable to get another job with UPS after re-applying elsewhere.

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Lawsuit Settled by California Dealership.Elk Grove car dealership Maita Chevrolet agreed to pay $158,000 and to implement preventive measures to settle a religious discrimination lawsuit filed by EEOC, the agency announced on September 27.

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According to the EEOC, Maita failed to accommodate the religious practice of an employee. The employee, a Nigerian immigrant and a Seventh-day Adventist, worked as a car salesman for approximately two years until he was discharged. A key tenet of his faith is to observe the Sabbath by refraining from secular work from sundown Friday to sundown Saturday. The EEOC charged that the company persistently scheduled him to work shifts during his Sabbath despite numerous requests from the employee and his pastor explaining the requirements. In addition, the EEOC alleged the employee was harassed, and ultimately disciplined and discharged for taking leave to observe his Sabbath.

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Burden of Proof

As with other categories of potential discrimination, religious discrimination revolves around an employer's ability to make a "reasonable accommodation" without causing "undue hardship" to a business or organization. And you have the burden of proof that you would suffer an

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undue hardship in the absence of a potentially discriminatory policy.Undue hardship claims generally involve reducing safety and/ or efficiency, creating a significant burden on other employees or incurring a lot of expense.

A few recent cases offer some insights into where the EEOC is drawing the line today. In a case filed earlier this year, the EEOC faulted a trucking company, Star Transport Inc., after it fired a pair of Muslim drivers who refused to deliver shipments of alcoholic drinks on religious grounds(devout Muslims generally shun alcohol). The issue was whether the company should have simply assigned non-Muslim drivers to handle those deliveries.

An EEOC attorney on the case stated: "Everyone has a right to observe his or her religious beliefs, and employers don't get to pick and choose which religions and which religious practices they will accommodate. If an employer can reasonably accommodate an employee's religious practice without an undue hardship, then it must do so."

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What Hardship?

The EEOC has taken the position that switching some schedules around, even if it involved job-sharing and paying some overtime, did not constitute a hardship. At this writing, the lawsuit is pending. Even if the EEOC ultimately loses, avoiding seemingly rigid responses to similar situations might be advisable.

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A pair of cases involving retailer Abercrombie & Fitch reinforced the EEOC's position on restrictions against religious-based clothing. Two women, in separate cases, were told that wearing an hijab (head scarf) violated the company's dress policy. (One case was on behalf of an employee, the other, involves a woman who applied but was not hired based on the clothing issue.)

In a separate case involving the same company, the EEOC was shot down by the U.S. Court of Appeals in Denver. Siding with Abercrombie & Fitch, the Court considered the fact that the job applicant did not mention in her job interview that she needed to wear the hijab for religious reasons. She also did not request any accommodations that would allow her to wear her hijab if doing so would violate any policy.

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Walmart, with its vast workforce, often addresses litigation involving employees. One now-retired assistant store manager filed a complaint with the EEOC when his schedule changed. After many years of being able to take Sundays off to attend his Mormon church, a new scheduling procedure made this very difficult. When he pressed the case, Walmart disciplined and threatened to fire him. The employer settled for $70,000 and agreed to train its human resources staff to be more accommodating in such situations.

"Employers who simply deny requests for a religious accommodation are violating the law," an EEOC attorney stated. "An employer with the kind of resources that Walmart has can surely find the flexibility and creativity to allow a valuable employee continue to keep his Sabbath."

The Size Factor

The EEOC probably would, however, be more sympathetic to a very small company with less flexibility in permitting shift changes. It has stated companies with multiple locations within close proximity have more freedom -- and a greater obligation -- to allow employees to move to jobs in other locations if necessary to accommodate religious-based scheduling constraints. By implication, single-location small companies could not be held to the same standard.

The classic anti-discrimination mantra states that, in general, we should treat all employees equally. But according to the head of one religious organization, the current legal environment has taught us when it comes to religion, this policy may no longer apply (from an interview with the CEO of the New York-based Tanenbaum Center for Interreligious Understanding, published in the Wall Street Journal).

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Action Items

How do you use this information in your workplace? To help reduce your chances of being accused of illegally discriminating on the basis of their religion:

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• Avoid asking questions about employees' or applicants' religious practices. This will help limit the probability of future accusations that you were unduly focused on a personal matter unrelated to their job qualifications.

• Consider whether any of your current human resource policies might unduly hinder employees from practicing their religions, even if you have received no complaints so far.

• Do not make policy decisions regarding employee dress and personal appearance standards based on untested assumptions of how others may react to an employee who dresses in a particular way.

• If a complaint arises, take it very seriously, no matter how frivolous it may appear to you. Seek expert legal and HR advice.

With the recent spike in claims of religious discrimination, it may be more important than ever for employers to be aware of issues that arise concerning religious practice. The world is changing fast and being nimble enough to roll with the punches is necessary if you hope to steer clear of this type of legal pitfall.

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