Chapter 11 Religious Discrimination McGraw-Hill/Irwin Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved. Learning Objectives Discuss the background of religious discrimination and give some contemporary issues Give Title VII’s definition of religion for discrimination purposes Explain religious conflicts under Title VII and give examples Define religious accommodation and guidelines to its usage 11-2 Learning Objectives Define undue hardship as it allows an employer defense to religious discrimination claims Describe religious harassment and give examples Identify the ways in which unions and religious conflicts occur List some ways in which management can avoid religious discrimination conflicts 11-3 This is Not Your Forefather’s Religious Discrimination Henry VIII’s break from the Catholic Church and it’s aftermath The U.S. Constitution Freedom of religion Title VII prohibits discrimination in employment based on religion 11-4 This is Not Your Forefather’s Religious Discrimination Small number of EEOC claims On the rise since 1993 Spike after September 11, 2001 Increase in litigation in the 1980s and early 1990s Fundamentalist Christianity and televangelism Sharing their faith 11-5 This is Not Your Forefather’s Religious Discrimination Current issues have extended to those surrounding Middle Eastern religions Practices and dictates conflicting with work environment Title VII is the only legislation specifically prohibiting religious discrimination in employment 11-6 This is Not Your Forefather’s Religious Discrimination Federal and constitutional guarantees for federal, state, and local government employees Due process Equal protection Freedom of religion 11-7 This is Not Your Forefather’s Religious Discrimination Duty to reasonably accommodate: The employer’s Title VII duty to try to find a way to avoid conflict between workplace policies and an employee’s religious practices or beliefs Undue hardship: Burden imposed on employer, by accommodating employee’s religious conflict, that would be too onerous for employer to bear 11-8 This is Not Your Forefather’s Religious Discrimination Religion is recognized as a basis for BFOQ Specific facts play an important role in making the determination Current basis for lawsuits – Conflict of religious practice and workplace policies 11-9 Major Religions of the World—Ranked by Number of Adherents 11-10 Major Religions in the U.S. Top Organized Religions Christianity 76.5% Judaism 1.3 Islam 0.5 Buddhism 0.5 Hinduism 0.4 Unitarian Universalist 0.3 Wiccan/Pagan/Druid 0.1 11-11 What is Religion? Accommodation considerations when the religion is unknown Is the belief closely held? Does it take the place of religion in the employee’s life? Atheism also considered a religion under Title VII 11-12 What is Religion? Employer duty to accommodate Attaches to the conflict itself, not to when the conflict arises Applies to religious practices, not religious belief 11-13 Religious Conflicts An employee engaging in some religious practice that is not perceived to be compatible with the workplace Sometimes the conflict is with the employer’s religion 11-14 Religious Conflicts Requirements for a prima facie case Employee has a sincere religious belief that conflicts with an employment requirement Employee informed the employer of the conflict Employee was discharged or disciplined for failing to comply with the conflicting employment requirement Once prima facie case is established the burden shifts to the employer to prove reasonable accommodation was offered 11-15 Religious Conflicts Employer considerations Make sure the basis for conflict is a religious one Attempt a good-faith accommodation of the religious conflict The right to be free of religious discrimination is not absolute 11-16 Employer’s Duty to Reasonably Accommodate The duty to accommodate depends on the circumstances Employer relieved of liability if Employee was reasonably accommodated An attempt was made to reasonably accommodate the employee 11-17 Employer’s Duty to Cooperate in Accommodation Under Title VII the employer is not required to resolve conflict in the way the employee wants Accommodation need not be the most reasonable 11-18 Employer’s Duty to Cooperate in Accommodation Factors determining reasonable accommodation Whether the employer made an attempt at accommodation The size of the employer’s workforce The type of job in which the conflict is present The employer’s checking with other employees to see if anyone was willing to assist in the accommodation The cost of accommodation The administrative aspects of accommodation 11-19 What Constitutes Undue Hardship? Factors determining undue hardship: The nature of the employer’s workplace The type of job needing accommodation The cost of the accommodation The willingness of other employees to assist in the accommodation 11-20 What Constitutes Undue Hardship? Factors determining undue hardship (contd..) The possibility of transfer of the employee and its effects What is done by similarly situated employees The number of employees available for accommodation The burden of accommodation on the union (if any) 11-21 What Constitutes Undue Hardship? Courts find undue hardship if an employer has to violate the seniority provision of a valid collective bargaining agreement pay out more than a “de minimis” cost to replace a worker who has religious conflicts force other employees to trade places with the employee who has a religious conflict 11-22 Religion as a BFOQ Title VII Permits religion to be a bona fide occupational qualification specifically permits educational institutions to employ those of a particular religion if they are owned in whole or in substantial part by a particular religion 11-23 Religious Harassment Prohibited under Title VII Religious Freedom Restoration Act religious practices must be accommodated unless a compelling governmental interest can be demonstrated and advanced in the least restrictive manner U.S. Supreme Court overturned RFRA in 1997 11-24 Religious Harassment Under the guidelines set forth by President Clinton, federal employees Should be permitted to engage in private religious expression in personal work areas Should be permitted to engage in religious expression with fellow employees Are permitted to engage in religious expression directed at fellow employees 11-25 Religious Harassment To avoid liability employers should Protect employees from those religious employees who attempt to proselytize others who do not wish to be approached about religious matters Protect employees with permissible religious practices who are given a hard time by those who believe differently Make sure that employees are given comparable opportunities to use workplace time and resources for religious practices 11-26 Union Activity and Religious Discrimination Unions are also under a duty to reasonably accommodate religious conflicts Frequent conflicts Union membership Payment of union dues Picketing and striking 11-27 Union Activity and Religious Discrimination It violates Title VII for an employer to discharge an employee for refusal to join the union because of his or her religious beliefs The Establishment Clause 11-28 Management Tips Take all employee notices of religious conflicts seriously After an employee puts the employer on notice of a religious conflict, immediately try to find ways to avoid the conflict Ask the employee with the conflict for suggestions on avoiding the conflict Ask, but don’t require, other employees to assist 11-29 Management Tips Keep workplace religious comments and criticisms to a minimum Make sure all employees understand that they are not to discriminate against employees on the basis of religion Do not challenge that employee’s religious beliefs during a conflict Make sure undue hardship actually exists if it is claimed 11-30