Articles Posted in Religious (Title VII)

By Barry M. Willoughby

At our recent Annual Seminar, we discussed, EEOC v. Abercrombie & Fitch Stores, Inc., an action involving alleged religious discrimination in connection with a refusal to hire that was then pending before the U.S. Supreme Court.  Attendees at the seminar will recall that the case involved an applicant for employment at Abercrombie who was turned down based on the Company’s “look policy,” because she wore a head scarf.  Although the interview for this position did not involve any discussion of whether the applicant wore the scarf for religious reasons, and/or whether she would require an accommodation to allow her to wear the scarf while at work, the EEOC investigation established that the company’s representatives believed that the applicant was wearing the scarf for religious reasons and refused to hire her on that basis.

On June 1, 2015, as we predicted, the Court issued its Opinion finding that the employer had indeed violated Title VII’s prohibition against religious discrimination.  Significantly, the Court ruled that actual knowledge of the employee’s need for a religious accommodation is not required.  Instead, the Court found that the test is whether the employer’s decision was, in fact, motivated by illegal discrimination under Title VII.

Analysis and Recommendations

The Supreme Court decision correctly focuses on the question whether an employer’s adverse action was motivated by illegal discrimination rather than its knowledge of the applicants protected status.  While knowledge, unsubstantiated or otherwise, of an applicant’s protected status will continue to be an important element of proof, the ultimate question in determining whether illegal adverse action has occurred is the employer’s actual motivation for its decision.  As the Court noted, knowledge alone will not be a basis for liability, if, in fact, the employer’s actual motive was not discriminatory.  On the other hand, an employer who is in fact motivated to discriminate based on unsubstantiated facts or suspicion, is nevertheless liable under Title VII.

We recommend that employers make sure that their decision makers understand that a decision motivated by illegal considerations will lead to liability regardless of their knowledge of the applicant’s protected status. We suggest that employers who are confronted with a potential religious accommodation issue directly address the issue with the applicant to determine whether an accommodation is necessary.

Following the familiar approach for addressing need for an accommodation of a disability is a good guide. If, as in Abercrombie, there is an obvious reason to believe that a religious accommodation may be necessary, the employer should affirmatively raise the issue and engage in the “interactive process” for determining whether an accommodation is required. If, on the other hand, there is no apparent reason for the employer to believe that an accommodation is necessary, the employer need not raise the issue.

Can an employee be required to get a flu shot? Employers want a healthy workforce and, presumably, employees do not want to be sick. So a flu shot seems like a good idea. And an offer of a free flu shot for employees seems like a great perk.

But the goodwill-nature of a suggestion always seems to change when a suggestion turns into a requirement. Maybe it’s just the rebellious teenager in all of us that reacts negatively to being told that we must do something. Maybe we all have authority issues. I don’t know what it is about being ordered to do something that seems to set off an automatic negative response.

The real trick, though, is how to respond to that negative response. Push back? Stand your ground and insist? Or give in and abandon your request? This is the question that one employer had to deal with when its employee refused to get a flu shot.

In Chenzira v. Cincinnati Children’s Hospital Med. Ctr., the employer required its employees to be vaccinated for the flu. Ms. Chenzira had worked for the hospital for 10 years when she was terminated for refusing to be vaccinated. She alleged that she refused on religious and political grounds because, as a vegan, she does not ingest any animal or animal by-products.

The employer moved to dismiss the complaint on the grounds that Veganism is not a true religion but, instead, is more of a dietary preference or social philosophy. The court denied the employer’s motion, finding that the plaintiff-employee may be able to establish that veganism meets the requirements of a religious belief for purposes of Title VII’s anti-discrimination provisions.

It is important to note that the court did not find that Veganism is or is not a religion. Instead, it merely held that, based on the face of the complaint, it was plausible that the plaintiff would be able to show that she subscribed to Veganism with a religious-like sincerity.

Here are two points to consider from this case.

First, take a deep breath and slowly exhale. Don’t overreact. When a 10-year employee refuses to get a flu shot, consider whether this is a truly terminable offense. I would suggest that, based on the facts as they are described in the court’s opinion, the answer is, “no.” If it’s not, let it go and move on. (The same advice applies in the context of Facebook comments by employees).

Second, do not be the arbiter of morality. Do not make a decision about whether an employee holds a “true belief” with regard to their religion (e.g., “She’s not a real Catholic; she never goes to mass!”). And do not make decisions about whether a particular belief qualifies as a religion, as was the case here.

Instead, consider the practical approach. If the employee had not gotten a flu shot and she got the flu, would it have been the end of the world for the employer? Probably not. Although there are plenty of times when standing on principle is the right approach. But that is not always the case. There also are plenty of times when the better approach is a practical one.

Chenzira v. Cincinnati Children’s Hospital Med. Ctr., No. 11-917 (S.D. Ohio Dec. 27, 2012).

Title VII prohibits employers from discrimination based on religion, among other things.  The anti-religious-discrimination requirements actually require employers to go a step further.  Not only must employers refrain from acting (i.e., from discriminating), but they must also take action in the form of providing an accommodation for sincerely held religious beliefs of an employee.  Of course, there are limits on how far an employer must go to make such accommodations. And, like all of Title VII, the law applies not only to employees but to applicants, as well.  religion rastafarian_lion

United Parcel Service (UPS), learned this lesson in a very undesirable way.  Last week, a federal jury in New Jersey found against UPS and ordered it to pay $10,000 in damages in a religious-accommodation claim brought by the EEOC.  The EEOC asserted, and the jury so found, that the plaintiff was wrongfully denied a job based on his religious beliefs.  The plaintiff, Ronnis Mason, a Rastafarian, applied for a job in 2004 as a driver’s assistant but was denied the job because of his beard. 

The company had a policy that prevented employees with beards from delivering packages to customers.  He was, instead, offered a job as a package handler.  In this position, Mason would have worked in a warehouse for a lower salary.  Mason never completed the application process.

This is the second successful case of religious discrimination brought by the EEOC on behalf of a Rastafarian in recent memory.  We posted last year about a quickly-settled claim involving four security guards at NYC’s Grand Central Station were disciplined when their “sloppy-looking” dreadlocks did not fit under the uniform-standard caps.

Religious discrimination can arise in a variety of circumstances. For example, just recently, we posted about a religious-discrimination claim filed by the U.S. Equal Employment Opportunity Commission (“EEOC”), on behalf of four Rastafarians who had been disciplined for their dreadlocks.  In another, fairly unusual, claim of religious discrimination, the issue isn’t hair-style choices, though.  This time, the problem is with short shorts. image

But not with an employee wearing one.  Instead, the EEOC claims, an employee at St. Louis clothing store, Hollister Co., was terminated when she refused to wear pants or skirts the didn’t cover the knee.  She stated a religious objection to the required uniform on the ground that her Pentecostal faith prohibited such attire.

Apparently, though, the employee had no such religious objection at the time she was hired

And, although this point is certainly relevant from the perspective of truth-seeker, it’s not so relevant when it comes to determining whether religious discrimination occurred.  An employee need not explained what caused him or her to alter conduct based on religious views–or to change their religious views, for that matter.  If faced with a request for a religious accommodation, it does not behoove an employer to start “throwing stones” as it were. 

Instead, unless it is an absolutely obvious contradiction of the employee’s otherwise-professed lifestyle, you are best advised to take the employee’s word on it.  Just assume that they do hold a sincere religious belief about the issue and focus, instead, on the viability of the request.

**The irony in this claim can’t go unnoticed by the Human Resource generalists in the world who spend such an inordinate amount of energy working towards eradicating short shorts in the workplace, which, I am certain, many would argue is a religious mission in its own right.  Of course, the NYT, this summer, published an article claiming that the “man-short” (pictured above), was making its way to the “acceptable attire” list in corporate America.  Let me know how that works out.**

Previous posts on religious discrimination and dress codes include:

EEOC Files Religious Discrimination Lawsuit on behalf of Sikh who refused to remove turban

What Not to Wear to Work: More Style Rules for the Modern (Gen Y) Worker

I’m Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

EEOC Sues over Dreadlocks, Claiming Religious Discrimination

Work rules for dress code are not out of fashion just because the season has changed.  Instead, the topic of “What Not to Wear to Work” is as trendy as ever.  So, for those of you charged with the task of enforcing dress codes and monitoring hem lines, here’s a bit of reassurance that you are not alone.   

Four security guards at NYC’s Grand Central Station were disciplined when their “sloppy-looking” dreadlocks did not fit under the uniform-standard caps.  imageThree of the four were suspended for their refusal to comply with their employer’s demand that they come to work “with their hair properly cut.”  The fourth shaved his beard after being told that failure to do so would result in his termination. 

The EEOC filed suit on behalf of the public safety officers against the Grand Central Partnership alleging religious discrimination–the employees are Rastafarians.  The matter appears to have been resolved, though.  The partnership recently agreed to provide custom-made hats to each of the officers so they could tuck in their dreadlocks.

In a recent post, Religious Discrimination & Prayer At Work: Employers Who Pray, we talked about employers who conduct prayer at the start of a business meeting.  The EEOC recently announced that it endorses such conduct, at least insofar as it does not find pre-meeting prayer to be discriminatory per se.  We wondered how many employers would be so bold as to follow this announcement after being counseled for so long that such an idea would be a sure-fire way to land in federal court sued for religious discrimination.  I don’t have any developments to report from the employers but it appear that employees think the idea is ok–so long as they are the ones picking the religion. image

In Minneapolis, Gold’n Plump Poultry, Inc. announced that, pursuant to the settlement of a class action lawsuit, it will allow Muslim workers to take short prayer breaks and to refuse to handle pork at the company’s poultry processing facilities.  The lawsuit accused the Work Connection employment agency of requiring Muslim applicants to sign a “pork acknowledgment form,” in which they agreed to handle pork products. It was alleged in the complaint that Somali workers who did not sign the document were not hired.

Gold’n Plump explained that employees will now be provided a 10-minute break in the second half of the shift at a certain time and only in a portion of the plant.  The employees had sought to be granted permission to leave the processing line when necessary to pray.  All employees, regardless of religion, will be granted the break.

The EEOC recently published an updated Guidance on Religious Discrimination.  The Guidance address the issue of religious discrimination in the workplace in a question-and-answer style format, as well as a “best practices” section.  We posted about the EEOC Guidance previously, in Increase in Religious-Discrimination Claims Prompts EEOC to Issue Updated Guidance. eeoc_logo

Last week, John Phillips, at The Word On Employment Law, posted an interesting piece about part of the Religious Discrimination Guidance that I hadn’t previously heard much about.  From the Guidance:

“Some employers have integrated their own religious beliefs or practices into the workplace, and they are entitled to do so.  However, if an employer holds religious services or programs to include prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship.  Excusing an employee from religious services normally does not create an undue hardship because it does not cost the employer anything and does not disrupt business operations or other workers.”

That’s correct–the EEOC’s current position on prayer in the workplace is that it ok, even if it is initiated by the employer and even if it occurs during working time–even if that means during a business meeting. 

Well, this is a new one for me.  I can’t recall a time when I advised a client that holding prayer services wouldn’t be a problem, and heck, go right ahead and pray at meetings–just make sure any dissenting employee is permitted to be excused. 

I do have clients who are employers founded on religious principles for which faith and prayer are at the core of their business structure.  But even organizations with high levels of religious practice do not conduct prayer as part of business meetings.

The comments that follow John’s post are very insightful.  I’d add this:

Believe it or not, I think the market would regulate this problem much more than one might initially think.  Even at organizations that are considered to be religious at their core, I can only imagine the outcry if prayer was held at the start of the meeting.  My phone would be ringing off its hook.  And a mutiny would likely follow.  If the company wants to retain its staff, it will have to forgo the pre-meeting prayer.  And the more successful the organization, the larger the organization, and the more staff the organization must hire and retain.  Any organization that understands the challenges of hiring and retention efforts would be at a real disadvantage to institute prayer at meetings if the meeting attendees weren’t likely to think favorably of it.

And those are my two cents on the EEOC’s latest Guidance on Religious Discrimination.

Religious-discrimination claims are on the rise and that doesn’t seem to be changing any time soon.  Nationwide, charge filings with the U.S. Equal Employment Opportunity Commission (EEOC), have risen substantially over the past 15 years, doubling from 1,388 in FY1992 to a record high of 2,880 in FY2007.

Filings by Muslims increased from 398 to 909 between FY1997 and FY2007–the largest increase of any major religious group during that period.  In response to the trend, the EEOC recently updated the section of its Compliance Manual dealing with religious discrimination. The agency also issued a best-practices guide for employers, including new references to headscarves.  In a related document, the EEOC says,

Requests for accommodation of a religious belief or practice could include, for example: a Catholic employee requesting a schedule change so that he can attend church services on Good Friday; a Muslim employee requesting an exception to the company’s dress and grooming code allowing her to wear her headscarf, or a Hindu employee requesting an exception allowing her to wear her bindi (religious forehead marking); an atheist asking to be excused from the religious invocation offered at the beginning of staff meetings; an adherent to Native American spiritual beliefs seeking unpaid leave to attend a ritual ceremony; or an employee who identifies as Christian but is not affiliated with a particular sect or denomination requests accommodation of his religious belief that working on his Sabbath is prohibited.

An officer of the LAPD has sued the City of Los Angeles and its Police Department, alleging First Amendment violations and religious discrimination.  The officer’s claims are based on off-duty statements he made regarding the Bible’s teachings on homosexual acts. 

The officer, Sgt. Eric Holyfield, a Christian pastor, quoted Bible passages during a eulogy for a fellow officer, explaining that homosexuality “was an abomination” and that persons who engage in homosexual conduct “must repent or be condemned to hell.”

According to

Holyfield was removed from his “coveted assignment in Community Relations” and assigned to patrol “without due process and in violation of his First Amendment rights.” 

To survive dismissal of a First Amendment claim, a public employee must sufficiently allege that he was acting in his capacity as a citizen–not in his employment capacity.  This has been a difficult burden for many plaintiffs to overcome.  Here, Holyfield is apparently aware of the requirement.  He alleges that his speech was made in his role as a minister in the community, not a police officer.  He also points out that he was on vacation that day, he was in a church, which was outside the city, and was dressed in civilian clothes.  All of these factors weigh strongly in favor of a finding that he was not speaking as a police officer when he gave the sermon that resulted in his transfer. 

Given the fervor relating to Barack Obama’s ties to Reverend Jeremiah Wright, it will be particularly interesting to see whether Holyfield’s First Amendment and religious discrimination claims will survive a motion to dismiss.

Everyone’s talking about dress codes.  Pantyhose or no pantyhose?  Flip-flops causing mutiny in the workplace. What not to wear is not just a TV show, it’s regular water cooler talk these days.  A new case filed by the EEOC shows a much more serious side of the dress-code debate–how dress codes can turn into discrimination.


The Equal Employment Opportunity Commission has sued Texas business, Champion National Security Firm, for religious discrimination after the company did not hire a Sikh who refused to shave his beard and take off his turban.

The claimant, Sukhdev Singh Brar, applied for a position as a security officer, was called for an interview and then got the job.  Well, almost.  Brar alleges that a company representative told him, “‘I’m going to hire you, but you have to shave and take off your turban.”  Brar says he told the interviewer that her request was against federal law and his religion. 

But she was not dissuaded.  Even after he told her that it was against his religion to cut his hair and remove his turban, she told him that this was the company’s policy and the policy wasn’t going to change.  “I cannot cut my hair. I cannot take off my turban,” he said.

Title VII prohibits employers from discriminating against employees and applicants because of their religion when making decisions about hiring, firing, and other terms and conditions of employment.

The Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee’s religious beliefs.

The standard for religious accommodations is “undue hardship.”  But what exactly is  an undue hardship? According to the EEOC, “an employer can claim undue hardship when accommodating an employee’s religious practices if allowing such practices requires more than ordinary administrative costs.”  The EEOC goes on to identify some examples of a religious accommodation:

Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee’s religious needs, inquire about an applicant’s future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship.

The undue-hardship standard is substantially easier to meet as compared to the standard used in disabilities accommodations. But, even under a lenient standard, the employer must still have a reason for refusing to accommodate a religious request.  And just saying, “Well, that’s our policy” is not going to cut it.  I’d be interested to know what the company’s defense will be; what will it claim was the hardship?  And the employer may very well have one–it refused to settle (or at least to settle on the terms offered by the EEOC).  Employers stay tuned, the dress-code debate is sure to heat up.

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