Delaware Employment Law Blog

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.