Religious Discrimination Abe Bogoslavsky Bogoslavsky by wuyunyi


									    Abe Bogoslavsky
Bogoslavsky Law Firm
   In July of 2008, the EEOC updated its
    Compliance Manual with regard to religious

   This update can be found at:
   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

   Different standard than ADA – must only show
    de minimis cost.
   Title VII permits religious organizations to give
    employment preference to members of their own

   However, this exception ONLY applies to
    employment of individuals, and does not allow
    discrimination based on other protected
    ◦ 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
   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
   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
    ◦ 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

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

Do you need/have to take the employee’s
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.
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

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

CMB website lists tenets. Does NOT indicate that
 piercings must be displayed (or even worn) at
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)

Brown’s only solution was to be excluded from

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.

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