Abe Bogoslavsky Bogoslavsky Law Firm www.bogolaw.com In July of 2008, the EEOC updated its Compliance Manual with regard to religious discrimination. This update can be found at: http://www.eeoc.gov/policy/docs/religion.html Or http://www.eeoc.gov/policy/docs/religion.pdf Title VII, Civil Rights Act of 1964 prohibits discrimination in terms or conditions of employment due to . . . Religion. 42 U.S.C. §2000e-2(a). However, religion has an additional requirement for employers. Under Title VII, it is an unlawful employment practice for an employer not to make a reasonable accommodation, short of undue hardship, for the religious practices/beliefs of employees. Different standard than ADA – must only show de minimis cost. Title VII permits religious organizations to give employment preference to members of their own religion. However, this exception ONLY applies to employment of individuals, and does not allow discrimination based on other protected categories. ◦ Paying female employees less than male employees. Plaintiff must demonstrate (1) Bona fide religious belief that conflicts with an employer’s requirement; (2) Informed employer of belief; and (3) Suffered adverse employment action for failure to comply with conflicting requirement Once established, employer MUST offer a reasonable accommodation, unless doing so would cause an undue hardship. Disparate Treatment Harassment Failure to reasonably accommodate The sincerity of an individual’s religious beliefs is inherently within that individual’s unique purview. Reasonable accommodation is what most of these cases are decided on. This certainly seems to be the position of the EEOC. Different standard than ADA, undue hardship must only cause more than “de minimis” cost. EEOC Guidelines strongly suggest interaction/discussion with employee regarding accommodation (similar to ADA). Expense Safety concerns Violation of other policies Contradicts Collective Bargaining Agreement Under EEOC Guidelines, payment of administrative costs for an accommodation is NOT undue hardship. Infrequent or temporary payment of premium wages (overtime) while permanent accommodation is located is NOT undue hardship. EEOC Guidelines - Mere assumption that others may request accommodation is not evidence of undue hardship. As with any other type of protected category, consistency in applying policies or decisions is the key. ◦ Filling in for church, disciplining Muslim ◦ Bible study ◦ “Christmas tree” exception “Customer preferences” is not a defense, and is disparate treatment. A Company’s harassment policy needs to include a prohibition against harassment due to religion. Permits claim for “refusing to submit” akin to sexual harassment. WORK SCHEDULES EEOC Guidelines make it clear that reasonable accommodation applies to current and prospective employees. Cannot allow applicant’s need for a reasonable accommodation affect a hiring decision. Generally discourage pre-employment inquiries regarding availability to work. EEOC Guidelines take an approach similar to ADA: ◦ Inquiry regarding availability must be job-related. ◦ When inquiring about availability, specifically inform employees to NOT consider religious-related absences in answering questions regarding work schedule. ◦ AFTER conditional job offer extended, but before individual hired, inquire as to ANY issue with work schedule, including religious concerns and THEN make accommodation decision. Applies to temporary staffing firms as well. Voluntary substitutions or “swaps” Flexible schedules Lateral transfer or change of job assignment Baker v. Home Depot (2nd Cir. 2006) Employee was member of Gospel Fellowship Church. Believed Sunday was the Sabbath and was a “day of rest” Requests to not be scheduled to work on Sunday. Home Depot offers accommodation, by agreeing to not schedule work on Sunday mornings, so he can attend Church services Baker v. Home Depot (2nd Cir. 2006) cont’d The shift trade offer accommodated only one of Baker’s concerns, that of missing church services on Sunday, but failed to address the principal objection of working on Sunday. What if the employee and the employer BOTH come up with reasonable accommodations? Do you need/have to take the employee’s suggestion? A sufficient reasonable accommodation need not be the “most” reasonable one (in the employee’s view), it need not be the one the employee suggests or prefers, and it need not be the one that least burdens the employee. Ansonia Bd. of Educ. V. Philbrook, 479 US 60, 68- 69 (1986) EEOC v. Firestone, (4th Cir. 2008) EEOC brought suit on behalf of David Wise. Wise is a member of the Living Church of God. Cannot work on the Sabbath – sundown Friday to sundown on Saturday. Firestone has a CBA. Wise uses all time off, requests 11 days “leave of absence” in September. Firestone refuses. EEOC v. Firestone, (4th Cir. 2008) cont’d EEOC claims that an employer provides a reasonable accommodation “ONLY when it eliminates the conflict between the religious practice and the work requirement.” Fourth Circuit upholds lower court – “any reasonable accommodation offered by the employer is sufficient to meet its requirement.” Sturgill v. UPS, (8th Cir. 2008) Employee is Seventh Day Adventist. Requests to not have deliveries from sundown Friday to sundown on Saturday. District Court erred in ruling that only reasonable accommodation is one which eliminates conflict. Simply looking at CBA and saying “Request denied” insufficient to constitute reasonable accommodation. Sturgill v. UPS, (8th Cir. 2008) cont’d Really did not engage in any interactive process. Did not consult with local managers to determine if any formal or informal measures were in place that would not violate CBA. Hypothetical explanations or problems are insufficient to constitute undue hardship. Determinations are case/fact specific. DRESS CODES Consistency is the key. Davis v. Mothers Work, Inc. Davis converts to Islam. Begins wearing “religious” garments (robe and head scarf). Terminated for dress code violation. Not treated same as similarly-situated co-workers. Cloutier v. Costco, (1st Cir. 2004) Costco modifies dress code to include no-facial- jewelry policy. Cloutier claims to be member of Church of Body Modification. Offer to allow covering piercings with band-aid or use clear retainers to keep piercings from closing. Cloutier v. Costco, (1st Cir. 2004) cont’d Cloutier now claims that CBM requires her to DISPLAY facial piercings at all times. Only accommodation is complete exemption from policy. CMB website lists tenets. Does NOT indicate that piercings must be displayed (or even worn) at ALL TIMES. Cloutier v. Costco, (1st Cir. 2004) cont’d Accommodation was reasonable as a matter of law. On appeal, First Circuit focuses on undue hardship. To allow Cloutier to be completely exempt from policy would cause Costco to forfeit its ability to control its public image, and that would be an undue hardship. Brown v. F.L. Roberts & Co., Inc. (Mass. 2006) Jiffy Lube adopts “clean shaven personal appearance policy” Brown is Rastafarian, and does not shave or cut his hair. Accommodation – transfer to lower bay, no customer contact Brown v. F.L. Roberts & Co., Inc. (Mass. 2006) cont’d Brown’s only solution was to be excluded from policy. Outright exemption from policy would affect employer’s “image”. Losing control over public image is more than de minimis cost. EEOC v. Alamo Rent-a-Car (Ariz. 2006) Ms. Nur is Muslim. Wants to wear head covering during Ramadan. Alamo has a “Dress Smart” policy to promote a favorable first impression on customers. Prohibits head coverings. Nur continues to come to work with veil on head. EEOC v. Alamo Rent-a-Car (Ariz. 2006) cont’d Offers to allow Nur to wear headcovering when working in the back, but not when up front working with customers. First, argue not sincerely held religious belief. Finally, argue undue hardship. Would be a burden, since it would be deviation from carefully cultivated image. EEOC v. Alamo Rent-a-Car (Ariz. 2006) cont’d Summary judgment granted in FAVOR of EEOC! Alamo’s assertion is based on assumptions or opinions based on hypothetical facts. 8th Circuit in Sturgil case. EEOC Guidelines specifically state that hypothetical or assumed effects are insufficient to show undue hardship. Also, makes it clear that decisions based on “customer preference about religious attire” is disparate treatment. QUESTIONS???
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