Sexual, Religious, Racial and Other Harassment

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Sexual, Religious, Racial and Other Harassment
June 26 – 29, 2006
Stephen J. Hirschfeld, Esq.
Curiale Dellaverson Hirschfeld & Kraemer, LLP
San Francisco, CA
I.
SEXUAL HARASSMENT
A.
Introduction
Cases involving issues of sexual misconduct are often messy and sordid, delving into the
personal lives of students and faculty and sometimes involving violent encounters and tragic events.
Without exception, these cases have far-reaching consequences for the institutions involved. At best,
cases of sexual misconduct on campus can undermine the credibility of the professor, the department,
and/or the institution. At worst, these cases can result in civil and/or criminal liability and a reputation
blighted beyond repair.
Institutions of higher education have a legitimate interest in guarding their public image,
avoiding negative publicity, maintaining a safe campus community, and protecting their institutional
mission and goals. Sexual misconduct is incompatible with all of these interests, and is an issue that can
impact every member of a college or university – students, faculty and staff. Therefore, it is in every
institution’s interest to address the issue of sexual misconduct. Under the label “sexual misconduct”
falls a range of conduct, including sexual assault, rape, acquaintance rape, sexual harassment, and sexual
exploitation. This conduct can occur between or among a range of actors, including employee-toemployee, student-to-student, and employee-to-student. Competing interests between the accused (basic
fairness and the need to ascertain the truth) and the accuser (confidentiality and fear of confronting the
accused) leave institutions scratching their heads, and questioning whether their institutional policies and
procedures are up to the challenge that such cases present.
The goal for any institution currently drafting or reviewing policies and procedures pertaining to
sexual misconduct is to develop policies and procedures that are fair and compassionate to the victim,
the accused, and the campus community, and that are used fairly and consistently. As a practical matter,
any policy must have support within the affected community to be effective. The breadth of review and
input will vary from institution to institution. At minimum, appropriate administrators, human resources
personnel, and in-house or outside legal counsel should be involved in the development or review
process. Representatives of those groups directly affected by the policy should also be consulted.
Institutions must also be aware of and adhere to any collective bargaining obligations, federal and/or
state law, and/or past practice.
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B.
The Legal Landscape
1.
Sexual Misconduct on Campus
a.
Title IX
Title IX of the Education Amendments of 1972 (Title IX) provides that “no person . . . shall, on
the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal assistance.”1 Congress
intended Title IX to prevent the use of federal funds by institutions that discriminate on the basis of sex
and to protect students from being discriminated against because of their sex. Title IX applies to
educational institutions that receive federal funding and protects students from sex discrimination in
education programs. Sexual harassment is a form of discrimination. Title IX allows a student to assert a
private cause of action against the recipient of the federal funding for the denial of access to an
education.
In cases where a student is alleging Title IX discrimination, Title IX requires a plaintiff to prove
that an official 1) had actual knowledge of the alleged discrimination and 2) responded to that
knowledge with deliberate indifference – or, in other words, the official effectively ignored the situation
or refused to remedy it. Actual notice is required. Notice will not be impugned to an institution under
Title IX on a constructive notice theory. Notice must be given to an “appropriate person” under the
statute. An “appropriate person” is one who has “authority to address the alleged discrimination and to
institute corrective measures” on behalf of the institution. Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 290 (1998). Evidence that an institution failed to follow its own policies and procedures can
be sufficient to support an inference of deliberate indifference.
b.
Title VII
Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination in the terms,
conditions, or privileges of employment on the basis of an employee’s sex. 42 U.S.C. § 2000e-2(a). The
statute also prohibits retaliating against employees who engage in activities opposing unlawful
discrimination. 42 U.S.C. § 2000e-3(a). Title VII applies to employers of 15 or more, including
educational institutions, and protects employees from sexual harassment in the workplace. In order to
state a claim for retaliation under Title VII, an employee or former employee must allege that she
engaged in a protected activity, that she suffered an adverse employment action, and that a causal
connection existed between the protected activity and the adverse action.
c.
Other Theories of Liability
Plaintiffs in the area of sexual misconduct on campus have also asserted state law claims such as
breach of contract, and common law torts such as infliction of emotional distress (intentional or
negligent), defamation, negligent hiring, supervision or retention, and failure to prevent or protect. The
elements of these causes of action vary from state to state.
In the context of negligent hiring, supervision, or retention; or failure to prevent or protect, the
employer’s negligence is based on foreseeability – in the context of negligent hiring, for example, the
1
20 U.S.C. section 1681(a).
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institution must have hired an individual with a past history of criminal, tortuous, or otherwise
dangerous conduct about which the institution knew or could have discovered through reasonable
investigation. In the context of negligent retention, the issue becomes what the institution knew, when
the institution knew it, and what the institution did about it.
C.
Consensual Sexual Relations on Campus
By now, most institutions have instituted policies against sexual harassment. However, most do
not have policies on consensual relationships between faculty and students. A growing number of
institutions are implementing formal guidelines on sexual relations between students and professors.
While not per se unlawful, sexual relationships between faculty and students can lead to negative legal
consequences.
A key issue in the sexual misconduct context is whether the alleged conduct was welcome. For
conduct to be welcome or accepted, a student must be able to knowingly and voluntarily consent to the
actions involved. The OCR states that conduct may be unwelcome, even if the victim acquiesced in it,
did not complain, or willingly participated in the conduct on previous occasions. Consent is not absolute
– it may be withdrawn. The following factors are relevant when determining whether a student had the
capacity to welcome the conduct: the age of the student, nature of the conduct involved, and whether the
student suffered an impairment (e.g., where the student is impaired by the use of alcohol or other drugs,
or suffers from a physical or mental impairment).
1.
Liability for Sexual Harassment Claims
The potential for sexual harassment claims is the primary reason to be concerned about
consensual relationships between faculty and students (as well as between employees and their
supervisors). The power imbalance of an educator/student relationship may result in both intended and
unintended coercion.
Although consensual relationships do not per se constitute sexual harassment, relationships gone
awry may expose the institution, as well as the faculty member, to significant liability. If the relationship
ends badly, the student’s recollection of events may be clouded by a desire for revenge or pecuniary
gain. This may result in a sexual harassment lawsuit alleging that the faculty member coerced the
student into the relationship.
It is difficult for an institution or employer (or, for that matter, a jury in a sexual harassment
lawsuit) to determine whether an alleged harasser’s sexual advances were invited, uninvited but
welcome, or entirely offensive. Because of the power relationship between teachers and students, the
employing institution bears the burden of proving that the relationship was voluntary and not coerced.
Since this issue often turns on the student’s mental state at the time, the institution is faced with a
difficult proposition in defending against a student’s claims of sexual harassment arising out of a
“consensual relationship.”
2.
Relationships Between Supervisors and Their Direct Reports May Create
Conflicts of Interest or the Appearance of Favoritism.
Whenever a faculty member engages in an intimate relationship with a student over whom the
teacher has supervisory authority, the relationship may impact the professor’s objectivity in supervising
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and evaluating the paramour. The faculty member may feel the need, actual or perceived, to reward the
partner. This lack of objectivity adversely impacts the parties’ relationship and the overall educational
or work environment.
Even if the faculty member is able to overcome the temptation to unfairly reward the paramour,
the appearance of favoritism lingers. Other students will presume that the paramour is being favored
simply because of the relationship, leading to morale problems, complaints and even litigation.
Many institutions are implementing “Consensual Relations” policies on their campuses in an
effort to communicate these concerns and discourage these negative outcomes. The approaches these
institutions take vary widely. According to United Educators Risk Retention Group, “the best policies
prohibit relationships between students and professors with advisory or grading roles over the student.”
At the College of William and Mary, relationships between faculty and students are strictly forbidden.
On the other end of the spectrum is Stanford University’s policy which discourages such relationships
without providing for penalty. In between are policies such as that found at Duke University, which
advises faculty members on ways to avoid objectionable situations without penalizing the faculty for
engaging in consensual relationships with students. At Ohio Wesleyan, the policy, which was passed by
faculty vote, requires professors contemplating a consensual relationship with a student to tell a Dean or
Chairman before beginning such a relationship and to give up any supervisory authority over the student.
The policy provides for a variety of sanctions, up to and including termination.
Any personal relationships between faculty and students should be greatly discouraged. It is
important to educate your faculty that personal relationships are not appropriate when there is a reporting
relationship between the student and the faculty member. At a minimum, faculty members must be
made aware that they will be held accountable for adverse consequences arising from a personal
relationship with a student.
D.
Sexual Harassment on Campus
As discussed above, two federal laws prohibit sexual harassment in the higher education setting:
Title VII and Title IX. Title IX applies to educational institutions that receive federal funding, and
protects students from sexual harassment in educational programs. Title VII applies to employers of 15
or more, including educational institutions, and protects employees from sexual harassment in the
workplace.
Title IX regulations mandate that covered educational institutions adopt and make known antiharassment policies and have effective procedures to resolve harassment complaints.2 There is no
requirement in Title IX that they provide the same procedure for students, faculty and staff. Whether an
institution has a combined or separate procedure for students, faculty and staff will depend upon the
particular institution, and any other applicable state laws or regulation. If an institution has more than
one policy or procedure, it should make sure to clearly state which policy and procedure applies to each
group.
Although Title VII does not have a similar express mandate, employers who fail to institute such
policies and procedures will be held strictly liable for sexual harassment by their supervisory personnel.
On the other hand, an effective anti-harassment policy and complaint procedure can help insulate an
2
“Sexual Harassment Guidance,” Office for Civil Rights, 62 Federal Register 12045 (March 13, 1997).
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employer from liability in such circumstances, where the harassment was not reported and did not result
in tangible employment harm. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
A clearly drafted sexual harassment policy and complaint procedure conforming to the law and
tailored to your institution is a key component of a program to eliminate and correct sexual harassment
on campus among students, faculty and other employees. It is also a key component of Title IX
compliance and of minimizing liability under Title VII. Many institutions will find it desirable or
necessary to have separate policies and complaint procedures for students, faculty and staff, although
separate policies are not required.
E.
The Current State Of The Law On Teacher-Student Sexual Harassment
1.
The Office of Civil Rights
The OCR Guidelines provide that an institution’s liability for sexual harassment by its employees
is determined by the application of agency principles. “Accordingly, a school will always be liable for
even one instance of quid pro quo harassment by a school employee in a position of authority, such as a
teacher or administrator, whether or not it knew, should have known, or approved of the harassment at
issue.” In an educator-student context, quid pro quo sexual harassment arises where a school employee
conditions a student’s participation in an education program or activity or bases an educational decision
on the student’s submission to unwelcome sexual conduct.
An educational institution will also be strictly liable for hostile environment sexual harassment
by its employee if the employee acted with apparent authority or if the employee was aided in
committing the harassment by her position with the institution. For example, a school would be liable if
a teacher implicitly threatens to fail a student unless he responds to her sexual advances. This example
illustrates the often blurred line between quid pro quo and hostile environment. Finally, the school may
be liable for hostile environment sexual harassment if it fails to take immediate and appropriate action to
remedy known harassment.
To establish a hostile educational environment under Title IX, plaintiff must establish that: 1)
she was a member of a protected class, 2) she was subject to unwelcome sexual harassment in the form
of verbal or physical conduct of a sexual nature, 3) the harassment complained of was based on sex, and
4) the harassment had the effect of unreasonably interfering with her education and creating an
intimidating, hostile, offensive educational environment that seriously affected her psychological wellbeing. Kauffman v. Allied Signal Inc., 970 F.2d 178, 183 (1992 6th Cir.). Under the first element, a
plaintiff will be a member of a protected class if he or she is a student at a university that receives federal
funding. Under the fourth element, the court may look at the following factors to determine whether the
alleged harassment was sufficiently severe or pervasive to create a hostile environment: the frequency of
the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or merely
an offensive utterance, and whether it unreasonably interferes with a student’s education. Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993).
The following are examples of the various forms of conduct that courts have found sufficiently
severe or pervasive to make it to a jury: a professor’s repeated references to the plaintiff-student in class
as “Monica Lewinsky”; a teacher putting his arm around student, looking at her in a sexual manner,
commenting on her appearance and stating that she should find a more mature boyfriend; a swim coach
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touching a student inappropriately, making comments about the student’s body, staring at the student’s
chest, making her stay after practice so that he could ice her shoulder while they were alone, and using
the terms “honey, sweetheart, sunshine and dear” to address her. Behavior that was not sufficiently
severe or pervasive includes: a professor’s graphic comments about his sexual desire for another man
and a greeting kiss on a student’s cheeks; a coach who asked the student to go out with him and then sent
her a sexually suggestive magazine article.
2.
The Courts
Until the United States Supreme Court decision in Gebser v. Lago Vista Independent School
District, 118 S. Ct. 1989 (1998), the courts were divided over what standard to apply in determining
whether an institution was liable for teacher-student sexual harassment under Title IX. Many courts
applied Title VII standards and held that an academic institution is always liable for quid pro quo
harassment claims and also liable for hostile environment claims if the institution knew or should have
know about the harassment but failed to take prompt and appropriate action to stop it. 3 Other courts
applied Title VI standards (which defines circumstances under which a school would be held liable for
teacher-student harassment more narrowly than Title VII) and held that educational institutions must
show some discriminatory intent, i.e., that the institution intentionally treated a student less favorably
because of his or her sex. 4
On June 22, 1998, the United States Supreme Court issued its decision in Gebser, defining the
circumstances under which a public institution can be held liable for hostile environment sexual
harassment under Title IX.
In 1991, Alida Star Gebser entered Lago Vista high school. One of her teachers, Frank Waldrop,
often made sexually suggestive comments to students. Waldrop and Gebser subsequently began a sexual
relationship. Gebser did not report the relationship to school officials. In October 1992, the parents of
two other students complained to the high school principal about Waldrop’s comments in class. The
principal set up a meeting with the parents and Waldrop, and the matter was resolved. The principal did
not report the complaint to the District’s superintendent, who was the District’s Title IX coordinator. In
January 1993, a police officer discovered the affair between Waldrop and Gebser and arrested Waldrop.
The District terminated Waldrop’s employment, and the Texas Education Agency revoked his teaching
license. Gebser and her mother sued Waldrop and the District for compensatory and punitive damages
under Title IX and under other federal and state laws.
The defendants removed the case to federal court. The district court granted summary judgment
in favor of the District on all claims, and remanded the remaining state claims against Waldrop to the
state court. Gebser appealed summary judgment only as to the Title IX claim. The U.S. Court of
Appeals for the Fifth Circuit affirmed summary judgment.
The Supreme Court affirmed the decision, holding that the principles of vicarious liability and
constructive knowledge were insufficient to establish the District’s liability for damages in a Title IX
action. In the majority opinion, Justice Sandra Day O’Connor stated that under Franklin v. Gwinnett
County Public Schools, 503 U.S. 60 (1992), the Court established that a school district could be held
3
Doe v. Covington County Sch. Bd., 1997 U.S. Dist LEXIS 9201 (M.D. Ala. 1997); Kadiki v. Virginia
Commonwealth University, 892 F. Supp. 746 (E.D. Va. 1995).
4
Rowinsky v. Bryan Independent Sch. Dist., 80 F. 3d 1006 (5th Cir. 1996).
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liable for damages in cases involving a teacher’s sexual harassment of a student. In the instant case, the
Court was challenged to define the circumstances under which a school district could be liable. Gebser
asserted that the District could be held liable under either vicarious liability or constructive notice
theories. The Court rejected Gebser’s theories because they would amount “to allowing unlimited
recovery of damages under Title IX where Congress has not spoken on the subject of either the right or
the remedy.” Thus, the Court held that, in order to be liable for damages under a Title IX implied
private action, an “appropriate person” (an official of the recipient entity with authority to take corrective
action to end the discrimination) must be put on notice of the discrimination, and the response of the
“appropriate person” must “amount to deliberate indifference to discrimination.” Because the evidence
showed that the only complaint received by the District related to Waldrop’s comments in class, not his
sexual relationship with Gebser, no notice to an “appropriate person” occurred, and the District could
not be held liable for damages in this action under Title IX.
F.
The Inevitable Backlash From Faculty Members Disciplined For Sexual
Harassment
Faculty members who have been accused of and/or disciplined for sexual harassment of students
are responding with charges and lawsuits of their own. They are suing claiming they have been
wrongfully terminated and/or that the discipline has violated their rights under the First Amendment. In
many cases, they win and the institution has to reinstate them and pay huge monetary judgments.
1.
Wrongful Termination
Faculty members accused of sexual harassment are heading for courtrooms and demanding
monetary damages, just like the students who claim they were harassed. The 1991 amendment to Title
VII, which gave plaintiffs in sexual harassment cases the right to collect monetary damages, created a
significant incentive for academic institutions to aggressively deal with sexual harassment claims by
students and employees. Now, there is a backlash. Poorly handled or ill-founded cases mean professors
can also be victims – victims who are entitled to money because of the damage to their career or
reputation. As one university president put it, “[s]ome universities are so afraid of the accusation of
sexual harassment that they press for very aggressive policies. . . . We’ve been burned the other way – by
a very troubled young lady who fabricated a story of being raped – so we’re being cautious.”
What is clear from these cases is that, if the investigation of a sexual harassment charge by a
student is poorly handled and/or one-sided, the consequences to the institution can be extreme.
Although claims of sexual harassment by a student against a faculty member are serious issues which
cannot be ignored, academic institutions must be careful not to act in a manner that suggests the
presumption of guilt before the faculty member has an opportunity to respond to the charges.
Institutions whose investigations are effective and provide faculty members with a fair opportunity to
present their side before a decision is made will be in a much better position to avoid such charges from
its faculty members. In addition, training and clearly stated policies can prevent sexual harassment from
occurring in the first place and avoid claims that faculty members were not given proper notice of the
policies or conduct prohibited.
2.
Academic Freedom/Free Speech Claims
There are times when an institution’s obligation to prevent and remedy sexual misconduct is in
direct conflict with its obligation to foster and protect the academic freedom of its faculty. A common
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factual scenario in this context occurs when a student brings sexual harassment charges against a
professor, alleging that the professor created a hostile educational environment because of sexuallyoriented teaching methods or because the professor makes sexually explicit jokes or comments in class.
Following an investigation, the institution concludes that the professor violated the policy and censures
the professor in some form. The professor, in turn, sues the institution alleging that the institution
violated his academic freedom.
Protection for academic freedom comes from three primary sources: constitutional law,
contractual rights and institution custom and practice. Private educational institutions are not governed
by the federal constitution. However, some state constitutions may provide protections to faculty at
private institutions. Faculty may be contractually entitled to academic freedom rights provided for in the
institution’s rules and regulations, tenure policies, letters of appointment, faculty handbooks or collective
bargaining agreements. Finally, courts faced with an academic freedom issue may analyze the
institution’s internal customs and practices with respect to bestowing academic freedoms, and may also
review customs in the higher education “industry,” such as policy statements promulgated by the
American Association of University Professors (AAUP).
The fundamental statement on academic freedom for faculty in higher education appears in the
AAUP’s “1940 Statement of Principles on Academic Freedom and Tenure.” It provides, in relevant
part:
Teachers are entitled to freedom in the classroom in discussing their subject, but they
should be careful not to introduce into their teaching controversial matter that has no
relation to their subject….
College and university teachers are citizens, members of a learned profession, and
officers of an educational institution. Whey they speak or write as citizens, they should
be free from institutional censorship or discipline, but their special position in the
community imposes special obligations. As scholars and educational officers, they
should remember that the public may judge their profession and their institution by their
utterances. Hence they should at all times be accurate, should exercise appropriate
restraint, should show respect for the opinions of others, and should make every effort to
indicate that they are not speaking for the institution.5
Institutions incorporating AAUP guidelines must be cautioned that doing so may contractually
obligate the institution to follow the procedures provided for in those guidelines. Many times, the
AAUP’s recommendations are above and beyond what the institution is legally required to do.
The key issues in cases involving sexual misconduct and academic freedom are whether the
speech or conduct was germane to the subject matter of the course, and whether the professor was on
notice that his or her teaching methods could possibly violate the institution’s sexual misconduct policy.
A professor whose sexually-charged speech is not related to the course being taught can hardly argue
that his freedom to teach has been violated. On the other hand, certain provocative speech may be more
than appropriate when it directly relates to the subject matter of the course.
5
AAUP, POLICY DOCUMENTS & REPORTS 3-4 (9th ed. 2001).
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At a minimum, sexual harassment and sexual misconduct policies must be explicit in the conduct
they forbid (e.g., making sexually explicit jokes or comments or gender-stereotyped comments that are
not tied to the subject matter of the class; unwelcome staring, leering, touching; or the use of patronizing
or demeaning terms such as “sweetie,” “honey,” or “babe”), and must clarify that the policies apply with
equal force in the classroom and the workplace.
G.
Student-Student Sexual Harassment
Peer harassment happens at an alarming rate in academic institutions across the country. From
the institution’s perspective, the difficulty in dealing with these claims comes from students’ reluctance
to report the behavior. What can an institution do to prevent such behavior among its students? When is
an institution liable for such conduct?
The OCR Guidelines6 provide that a school will be liable under Title IX when its students
sexually harass other students if (1) a hostile environment exists in the school’s programs or activities,
(2) the school knows or should have known of the harassment, and (3) the school fails to take immediate
and appropriate corrective action.
When a school fails to respond to allegations of sexual harassment, an atmosphere of sexual
discrimination permeates the educational program. “Title IX does not make a school responsible for the
actions of harassing students, but rather for its own discrimination in failing to remedy it once the school
has notice.”7
Title IX regulations require schools to adopt and publish grievance procedures providing for
prompt and equitable resolution of sex discrimination complaints, including complaints of sexual
harassment, and to disseminate a policy against sex discrimination. “By having a strong policy against
sex discrimination and accessible, effective, and fairly applied grievance procedures, a school is telling
its students that it does not tolerate sexual harassment and that students can report it without fear of
adverse consequences.”8
A school may be in violation of Title IX in a student-student sexual harassment case if it has
notice of sexual harassment and fails to take corrective action. The school may receive notice from a
student who has filed a grievance; from a student or parent who has complained to a principal, campus
security, a teacher, an affirmative action officer or staff in the office of student affairs; or from an
indirect means, including the media or a flyer.
The institution may also be liable if it had constructive notice, that is, if the institution “should
have” known about the harassment – if the school would have found out about the harassment through a
“reasonably diligent inquiry.” A school may also be liable for pervasive harassment if the harassment is
widespread, openly practiced, or well-known to students and staff (such as sexual harassment occurring
in hallways, graffiti in public areas, or harassment occurring during campus events under faculty
supervision).
Dept. Of Education, Office of Civil Rights. “Sexual Harassment Guidance: Harassment of Students by School Employees,
Other Students, or Third Parties” 62 Fed. Reg. 12034 (March 13, 1997).
7
62 FR at 12036.
8
62 FR at 12040.
6
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H.
Co-Worker and Supervisor Sexual Harassment
The cases involving sexual harassment claims by employees at educational institutions are akin
to sexual harassment claims by employees of corporations and, when evaluating the institution’s liability
for these claims, the courts apply Title VII.
II.
RELIGIOUS DISCRIMINATION AND HARASSMENT
A.
Introduction
The events of 9/11 have forced everyone to think about the role of religion in their own lives, as
well as in the lives of others. Nowhere is this more prevalent than in the employment context. We all
live and work in a religiously diverse society. As such, it is imperative that we make ourselves aware of
the implications such diversity has on the work environment.
Since September 11, 2001, the courts, as well as the Equal Employment Opportunity
Commission (EEOC) and state and local fair employment practices agencies have recorded a significant
increase in the number of charges of religious discrimination against employees who are or are perceived
to be Muslim or Sikh. For example, in a recent case against the Breakers Palm Beach hotel, a hotel
housekeeping supervisor was terminated from her job one day after September 11, 2001. The plaintiff
alleged that her termination was based on the fact that she was a Muslim and of Arab national origin.
The hotel claimed that the termination was for poor performance and had nothing to do with her religion.
The hotel stated that it employed 1,700 people from diverse backgrounds and that it did not take the time
to sift through employee files immediately after the attack to determine who was or was not Muslim.
However, the court concluded that the plaintiff created a sufficient nexus to move forward with the case.
This is just one example of why religious discrimination is, more than ever, an issue that cannot
be ignored. This article will show you what makes up a claim for religious discrimination and what
issues come up most frequently as the basis for religious discrimination claims.
B.
Overview of Religious Discrimination
1.
What is Religion?
Discrimination against “a person in compensation, or in terms, conditions, or privileges of
employment because of the person’s religious belief or observance” is illegal. Cal. Gov’t Code
§ 12940(l), 42 U.S.C. § 2000e-2. “Religion” is broadly defined to include sincere moral or ethical
beliefs regarding right and wrong that are held with the strength of traditional religious beliefs. 42
U.S.C. § 2000e(j); Cal. Gov’t Code §§ 12926(o), 12940(l); Cal. Const. Art. I, § 8.
This boundary has once again been tested in Peterson v. Wilmur Communications, Inc., 2002
U.S. Dist. LEXIS 10327* (2002). The plaintiff, one Christopher Lee Peterson, is a racist. Perhaps he
would not couch his belief in that way, but he would defend the premise behind it because he follows the
World Church of the Creator, an organization that preaches a system of beliefs called “Creativity,” the
central tenet of which is white supremacy. Indeed, Peterson’s “religion” does not espouse a belief in a
God or any sort of supreme being. “Creativity teaches that Creators (people like Peterson) should live
their lives according to the principle that what is good for white people is the ultimate good and what is
bad for white people is the ultimate sin.” Id. at *4.
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Peterson was a supervisor of eight individuals at Wilburn Communications. Three of these
individuals were not white. An article appeared in the local newspaper that quoted Peterson and showed
a picture of him wearing a t-shirt bearing a picture of Benjamin Smith, who, carrying a copy of The
White Man’s Bible, had targeted African-American, Jewish and Asian people in a two-day shooting
spree that left two dead and nine others wounded. The day after the article appeared, Peterson’s
employer suspended him without pay. Two days later, his employer demoted him to a position with less
pay and no supervisory duties.
Peterson filed a lawsuit claiming religious discrimination and moved for summary judgment.
When evaluating the claim, the court analyzed the controversy surrounding the determination of what is
a “religion.” “Deciding how to distinguish religion from other types of beliefs or belief systems has
been a source of great controversy for courts and commentators.” The court relied on the test known as
the “function as” test which requires courts to take a functional approach and ask whether a belief
“functions as” religion in the life of the individual before the court. Under that test, purely moral and
ethical beliefs can qualify as a religion, without the concept of a God, “so long as they are held with the
strength of religious convictions.”
The defendant argued that Creativity was nothing more than a political and fraternal organization
similar to the Ku Klux Klan and the National Socialist White People’s Party, which the courts have
found not to be religions. However, the court stated that while these organizations shared common
views, Creativity went farther. Creativity played such a central role in the plaintiff’s life, he became a
minister in the World Church of Creator. For these reasons, the court determined that a religion existed
and, thus, religious discrimination occurred.
Not to be outdone, the EEOC recently expanded its understanding of “religion” under Title VII.
It is now possible that scientific theories such as “cold fusion” and potential X-files messages from E.T.
may qualify as “religions.” The expansion of this definition stems from a lawsuit brought by Paul
LaViolette, who holds his scientific and extraterrestrial beliefs very close to his heart. As such,
LaViolette does not believe that he should be discriminated against because of these beliefs. The EEOC
agreed and ruled that if LaViolette’s allegations that he is being discriminated against because of those
beliefs are true, the Patent and Trademark Office may be guilty of religious discrimination. It remains to
be seen whether any court will adhere to the EEOC’s determination.
Accordingly, an employer may not terminate an employee, refuse to hire an applicant, or take any
other adverse employment action because of the individual’s religious beliefs or practices. Moreover,
both the Fair Employment and Housing Act (FEHA) and Title VII require an employer to make
reasonable accommodations for the religious beliefs and practices of employees/applicants. The FEHA
statutorily insures that such protections apply to the observance of the Sabbath or other religious holy
days.9
2.
Establishing Religious Discrimination
In order to establish a prima facie case of employment discrimination based on religion, a
plaintiff must establish that she: (1) has a bona fide religious belief that conflicts with her employment
responsibilities or duties; (2) has informed the employer of the religious belief and conflict; and (3) was
9
Cal. Gov’t Code § 12940(l).
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threatened with or subjected to discriminatory treatment based on the inability to fulfill her job duties.
Tiano v. Dillard Dep’t Stores, 139 F.3d 679, 681 (9th Cir. 1998); Daniels v. City of Arlington, 246 F.3d
500 (5th Cir. 2001).
3.
Reasonable Accommodation
Once an employee has established these three elements, the burden switches to the employer to
show that it made a good faith effort to accommodate the belief, or that it was unable to reasonably
accommodate the belief/practice. Failing to make a reasonable accommodation is an unlawful
employment practice, and a form of discrimination, under both the FEHA and Title VII. At a minimum,
the employer is required to negotiate with the employee in an effort to reasonably accommodate the
employee’s religious beliefs. Balint v. Carson City, 180 F.3d 1047 (9th Cir. 1999).
For example, in 2000 Sonya McIntyre-Handy sued her former employer under Title VII for
religious discrimination claiming that she was terminated based on her religious beliefs. McIntyreHandy v. West Telemarketing Corp., 97 F. Supp. 2d 718 (E.D. Va. 2000). McIntyre-Handy was an
“atheist” working for a telemarketing company. Several of her employer’s clients were religious
organizations and McIntyre-Handy felt that her religious beliefs conflicted with the scripts she was
required to read when making calls for the religious organizations. Specifically, she objected to the fact
that she was required to listen to caller’s testimonials and she felt as though she was selling religion. In
an effort to accommodate her, the employer transferred her to the psychic line group. McIntyre-Handy
was subsequently terminated for being rude and for speaking negatively about her employer’s clients.
The court held that McIntyre-Handy was not discriminated against and she was terminated for violating
her employer’s policies and procedures. The court also noted that transferring McIntyre-Handy to the
psychic line group was an appropriate accommodation because it was the only group that had an opening
and since McIntyre-Handy made it clear that she could not work in her current group, that was her
employer’s only choice.
Under the FEHA, the reasonable accommodation requirement is invoked when there is any
“conflict between the person’s religious belief or observance and any employment requirement.”10 The
only exception is if the employer can demonstrate ‘that it has explored any available reasonable
alternative means of accommodating the religious belief or observance, including the possibilities of
excusing the person from those duties that conflict with his or her religious belief or observance or
permitting those duties to be performed at another time or by another person. . . .”11 The FEHA
explicitly requires that when a religious observance is at issue, the accommodation requires that the
employer give the individual “time necessary for travel prior and subsequent to a religious observance.”12
Although mandated by the explicit language of the FEHA, this is almost always a requirement under
Title VII as well.
Keep in mind that the employer’s obligation to accommodate only arises after the employer is put
on notice of a religious belief or practice that requires accommodation. This notice need not be directly
from the employee, but may also come third-hand from others. Once on notice of the belief or practice,
it is the employer’s burden to initiate efforts to find a reasonable accommodation. Opuku-Boateng v.
Cal. Gov’t Code § 12940(l).
Id.
12
Id.
10
11
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State of California, 95 F.3d 1461 (9th Cir. 1996), cert. denied, 520 U.S. 1228 (1997). An employer need
not provide the best accommodation, nor does it need to prove that other accommodations may cause an
undue hardship. All that is required is that an accommodation for the belief or practice be made. When
it comes to the accommodation process, the employee does not have to propose an accommodation, but
only to cooperate with a reasonable accommodation suggested by the employer. This does not mean,
however, that the employer can choose an unreasonable accommodation just because it happens to work.
If other accommodations are reasonable and could equally have been made, forcing the employee to
comply with a specific accommodation which may appear unfair or unjust when other accommodations
could have been offered may be discriminatory in and of itself. Once the employer is on notice, then the
issue becomes whether an accommodation may be found that does not cause an undue hardship.
C.
Undue Hardship
The only limitation on the duty to accommodate, similar to the Americans with Disabilities Act
(“ADA”), is that an employer is not required to attempt to negotiate an accommodation, or to make an
accommodation, if the employer can show that the accommodation would impose an undue hardship on
the employer’s business. Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993), 42 U.S.C. §
2000(e). “If an employer can show that no accommodation was possible without undue hardship, it
makes no sense to require that he engage in a futile act.” EEOC v. Townley Engineering & Mfg. Co.,
859 F.2d 610 (9th Cir. 1988), cert. denied, 489 U.S. 1077 (1989).
An accommodation causes an undue hardship when it results in more than a de minimis cost to
the employer, or hardship on the employee’s co-employees. This requires actual proof of the hardship,
and not just hypothetical or presumed difficulties. The burden of proving hardship remains with the
employer at all times. Some of the factors courts will look to in balancing the duty to accommodate and
the hardship to the employer are:
1.
2.
3.
4.
5.
the number of employees the employer has at the facility in question and in general;
the employer’s budget;
the nature of the work and the workforce;
the cost of the accommodation; and
other alternatives for accommodation.
Generally, this comes down to a cost issue with most employers. In determining whether the cost
of the accommodation is reasonable, the courts will look to the cost of the accommodation compared to
the size and income of the employer; i.e., small employers are generally required to absorb less cost than
are large employers with greater resources and income. When it comes to modifications of duties or
shifts, as set forth below, courts will tend to look to the size of the workforce, or others who can be
involved in such accommodations.
D.
Supervisors Can Be Individually Liable
Recent cases have affirmed that individuals may be personally liable for their acts of religious
discrimination. Indeed, in the case of Phillips v. Collings, 256 F.3d 843 (8th Cir. 2001), Phillips’
supervisor, Collings, was found personally liable for $26,500 in damages for what the court called an
“exceedingly negative” evaluation of Phillips’ performance. The court determined that the evaluation
was based on Phillips’ religious beliefs, which included the belief that homosexual couples could not be
foster parents. Although a poor performance evaluation alone usually does not constitute an adverse
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action, the 53 page evaluation criticized every aspect of Phillips’ performance. The court further
determined that Collings’ treatment of Phillips forced him to change departments to avoid her ridicule
based on his religious beliefs. The court also ruled that it would have been a reasonable accommodation
to allow other employees to handle the limited number of homosexual couple placements. The court felt
Collings had targeted Phillips because of his religious beliefs, and found her personally liable for
damages as a result. This is an expansion on the limits of liability. Employees and employers must now
ensure their compliance, not just because the employer may be liable, but because their employees may
be personally liable as well.
E.
Issues in the Accommodation of Religious Beliefs, Practices and Dress
1.
Religious Organizations
In Silo v. CHW Med. Found., 27 Cal. 4th 1097 (2002), the California Supreme Court recently
held that a Catholic medical clinic could not be held liable for violating California’s public policy
against religious discrimination for terminating an employee who proselytized at work. Catholic
Healthcare West (CHW) was a tax exempt religious organization running secular hospitals throughout
California, operated by the Roman Catholic Church. The plaintiff, Terence Silo, was terminated for
poor performance and for continuing to preach and evangelize to other employees. Silo filed suit,
claiming he was unlawfully terminated based on his religious beliefs.
Silo argued that because sharing and evangelizing was integral to his Christian practice, “and
because disallowing such a practice in the workplace even on his own time with willing employees is not
a reasonable accommodation of his religion, Silo claims that his discharge was in violation of the
fundamental public policy against religious discrimination.”
While religious discrimination is illegal, “the state and federal free exercise and establishment
clauses give religious organizations some degree of latitude to choose their employees in order to define
their religious mission. The FEHA, in section 12926, subdivision (d), expressly exempts nonprofit
religious organizations from liability for religious and other forms of discrimination in order to further
that goal.”
The court found that the fact that CHW ran a secular hospital that treated patients irrespective of
their religious affiliation; did not have a chaplain and did not publicly display Bibles, crucifixes or any
other religious symbols, did not render CHW non-exempt or interfere with the religious character of the
employer. “Therefore, the public policy against religious discrimination in employment must be
qualified by the public policy of permitting religious employers considerable discretion to choose
employees who will not interfere with their religious mission or message.”
2.
Observance of Holy Days – Work Scheduling
Generally, an employee’s observance of the Sabbath or other religious holy days is protected, and
statutorily so under the FEHA. In Opuku-Boateng v. State of California, 95 F.3d 1461 (9th Cir. 1996),
Kwasi Opuku-Boateng, who was working as a temporary employee with the California Department of
Food and Agriculture, applied for and was selected for a permanent position with the Department.
However, when he advised the Department that he was unable to work on Saturdays because of his
religious beliefs, the Department terminated the hiring process. Opuku-Boateng sued the State of
California and several Department officials, claiming that the State denied him a position on the basis of
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his religion, in violation of Title VII of the Civil Rights Act of 1964. The district court concluded that
Opuku-Boateng had established a prima facie case of discrimination, but that the State had demonstrated
that accommodating his religious beliefs would have caused undue hardship because of shift-scheduling
issues. Accordingly, it entered judgment in favor of the State.
On appeal, the Ninth Circuit reversed. The court explained that the evidence showed that the
shift-scheduling could have been arranged so that Opuku-Boateng could miss Sabbath work. The record
showed that all employees at the station were required to work “an equal number of undesirable
weekend, holiday, and night shifts.” The court found that so long as Opuku-Boateng worked that equal
number of “undesirable shifts” – i.e., being assigned a holiday, Sunday, or night shift for every shift he
missed to observe the Sabbath – he would not have been granted any preferential treatment, nor would
any cognizable burden have been imposed on other employees who simply were assigned one
undesirable shift instead of another.
No evidence was offered that the shift assignments could not have been
arranged in a manner that would have ensured that Opuku-Boateng and the
other employees all received an equal number of undesirable shifts.
Therefore, the State failed to carry its burden of demonstrating that
Opuku-Boateng’s practice of observing the Sabbath could not have been
accommodated through scheduling arrangements without affording him
preferential treatment. Accordingly, we conclude that the district court
clearly erred in determining that the proposed scheduling arrangement
would have discriminated against Opuku-Boateng’s fellow station
employees.
Id. at 1470.
Keep in mind that shift-scheduling hardship is generally a difficult test to meet. Prior case law
suggests that it is more difficult to prove such hardship for existing employees as opposed to new
applicants for specific positions. Regardless, however, if an accommodation to scheduling can be made,
presume that it can be made for applicants, as well as existing employees.
As stated earlier, however, this is not an unlimited obligation. Although the employer is under an
obligation to create an accommodation, just because there may be other accommodations available does
not relieve the employee from his/her obligation to accept the accommodation provided. In Cosme v.
Henderson, 2000 U.S. Dist. LEXIS 16210 (S.D. N.Y. 2000), a postal employee (Cosme) took a new
position at work despite being aware that the position did not have Saturdays fixed as a day off.
Cosme’s religion, the Worldwide Church of God, required a day of rest on Saturday, its Sabbath. In
order to accommodate his belief, his employer offered Cosme a different position in which he would not
be required to work Saturdays. Cosme refused the offer. The court found that he been offered a
reasonable accommodation although it was not the exact accommodation he desired. Thus, as long as
the employer acts in good faith in this accommodation process, and reaches what the court determines is
a reasonable accommodation, then the employee who refuses the accommodation will not be able to set
forth a claim.
Note also the case of Dachman v. Shalala, 2001 U.S. App. LEXIS 9888 (4th Cir. 2001).
Dachman, an orthodox Jew, was permitted to leave work on Fridays at 1:30 p.m. to accommodate her
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preparation for the Sabbath meal. However, she often left earlier than this time in order to pick up the
ceremonial challah bread for the Sabbath. The employer terminated Dachman’s employment as a result
of this practice and her absenteeism. The Court found that Dachman could easily have purchased the
bread on Thursday night after work, and that there was no religious reason why she had to leave earlier
than 1:30. The Court upheld the termination, and found the accommodation reasonable, even though it
was not what Dachman requested. This affirms that the employer, and not the employee, has broad
leeway in reaching what it determines is a reasonable accommodation.
Finally, in California Fair Employment and Housing Commission v. Gemini Aluminum Corp.,
122 Cal.App.4th 1004 (2004), the Court issued this opinion which increases the burden on employers
who receive a request for a religious accommodation from an employee. The court found that, under the
FEHA, employers are required to accommodate not only religious practices that are “required by the
tenets of the employee’s religion,” but also practices that are preferred, albeit not mandatory.
A long-term employee sought two days off to attend an annual Jehovah’s Witness convention,
which he considered a form of worship and religious study. The employer denied the request and the
employee attended the convention notwithstanding the employer’s decision. The employee was
suspended and ultimately fired.
The employer offered proof that the employee had once missed a convention to go on family
vacation. Moreover, the employee conceded that he could have attended a different Jehovah’s Witness
convention at a different time. Thus, the employer argued that attendance at the conference was not
“required,” but rather was a matter of preference to the employee – one which the employer was not
required to accommodate. Indeed, many other courts have found that an employer has no obligation to
accommodate the religious preferences of an employee.
The court rejected the employer’s argument. It ruled that “the relevant inquiry is the sincerity,
not the verity of the employee's religious beliefs.”
The court’s holding was much broader. It explained that an employee in a religious
discrimination case is not required to prove in great detail the religious significance of his request for
accommodation. Instead, such a plaintiff must only “cite a religious connection.” In this case, for
example, the employee had sufficiently alleged the basis for a religious discrimination claim because he
established that he had told a manager that he needed time off to attend a religious convention.
This case marks yet another departure by a California court from the “conventional wisdom” of
employment discrimination. Under this case, employers are now required to make an effort to
accommodate religious practices of employees even if the employee has other less burdensome methods
of adhering to his religious beliefs.
Employers should treat requests for accommodation of religious practices seriously, as they do
with requests for accommodation of disabilities. Upon receiving such a request, an employer should, at
the very least, engage in an interactive process with the employee to determine how the religious belief
can be accommodated and whether there are any less burdensome means of doing so.
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F.
Seniority Systems
Title VII provides that it is not an unlawful employment practice for an employer to apply
different standards of compensation, or different terms, conditions or privileges of employment pursuant
to a bona fide seniority or merit system, as long as the differences do not result from an intention to
unlawfully discriminate. In a recent en banc decision, the Ninth Circuit Court of Appeals examined the
issue of whether a bona fide seniority system obviated the duty to reasonably accommodate the religious
needs of a plaintiff under Title VII and concluded that the mere existence of a seniority system does not
relieve the employer of all obligations to reach an accommodation.
In Balint,13 a member of the Worldwide Church of God was offered a position with the Carson
City Sheriff’s Department. A central tenet of Balint’s religious beliefs was the strict observance of the
Sabbath from sundown Friday until sundown Saturday. After she was hired, Balint advised the
Department that she could not work during her Sabbath and requested that her schedule be adjusted to
accommodate her religious practice. The Department refused on the ground that scheduling was done
according to a seniority-based, shift-bidding system.
The mere existence of a seniority system does not relieve the employer from the duty to attempt
to accommodate its employees’ religious practices, if such an accommodation can be accomplished
without modification of the seniority system and with no more than a de minimis cost. The court noted
that, since the city’s seniority system prohibited employees from trading shifts on more than an
emergency basis, requiring permanent shift trading to accommodate an employee’s religious beliefs
would cause the city an undue hardship. However, the court remanded the case for a determination of
whether “splitting shifts” would create an undue hardship.
Balint reaffirms that the extent of the duty to accommodate employees’ sincere religious
practices will be reviewed on a case-by-case basis. Employers should explore possible accommodations
and document the reasons for denying accommodation in cases where modifying the seniority system
would impose more than a de minimis cost.
G.
Appearance and Dress – Safety and Uniform
An employee’s personal appearance and dress may also be protected if mandated by religious
beliefs. In Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382 (9th Cir. 1984), the Ninth Circuit Court of
Appeals affirmed that wearing a beard can constitute a protected religious practice. Chevron had
instituted a new policy requiring all employees who might be exposed to toxic gases, including
machinists, to shave facial hair that would prevent a gas-tight face seal when the employee wore a
respirator. Bhatia was a machinist. He refused to comply with the new policy on the ground that he was
a devout Sikh and the Sikh religion proscribes the cutting or shaving of any body hair. Chevron put him
on unpaid leave and later offered him a lower-paying job as a janitor.
The Ninth Circuit found that Bhatia had established a prima facie case of religious
discrimination. Nevertheless, the court found that Chevron was not liable for religious discrimination
because it had established that retaining Bhatia as a machinist unable to use a respirator mask safely
would cause undue hardship. The court reasoned that, if Chevron were required to assign Bhatia only
duties involving no exposure to toxic gas, it would have to revamp its system of duty assignments to
13
Balint v. Carson City, 180 F.3d 1047 (9th Cir. 1999).
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accommodate the need for predicting whether particular assignments involved potential exposure to
toxic gases, and Bhatia’s co-employees “would be required to assume his share of potentially hazardous
work.” This case on appearance and dress, however, deals with safety issues. When safety is a concern,
the courts will be less likely to allow for accommodations which may jeopardize either the employee’s,
the general public’s or other employees’ safety.
Oftentimes employers have express policies on attire which are not in any way safety-related.
Such policies could conceivably conflict with an employee’s religious practices and beliefs. When this
happens, the employer may not hide behind the policy to avoid liability. Note the case of Ali v. Alamo
Rent-a-Car, 2001 U.S. App. Lexis 3389 (4th Cir. 2001). In that action, Alamo refused to allow the
plaintiff to wear the headscarf at work that was mandated by her Islamic religious beliefs. After refusing
to stop wearing the headscarf, she was transferred to a position in which she would not be in frequent
contact with customers. The court found that this was not an adverse employment action, and,
accordingly, granted summary judgment for defendant. The employer in this action avoided liability by
reaching what the court found was a reasonable accommodation since it did not impact the plaintiff’s
terms and conditions of employment. This affirms the proposition that even employers with uniformly
applied attire/dress codes remain under an obligation to find accommodations when those policies
conflict with religion.
This was recently affirmed in the case of Daniels v. City of Arlington, 246 F.3d 500 (5th Cir.
2001). The plaintiff police officer wore a small gold cross pin as a symbol of his evangelical
Christianity, even after he was reassigned to a uniformed position which had a no-pins policy. The
police chief offered several accommodations: wearing a cross ring or bracelet instead of the pin;
wearing the pin under his uniform shirt or collar; or transferring to a non-uniformed position where he
could continue to wear the pin on his shirt. Plaintiff declined these alternatives and was fired for
insubordination. The Fifth Circuit determined that the addition of religious symbols on an official
uniform would unduly burden the City as a matter of law. This holding is limited in scope to the
application of religious symbols to official uniforms, and specifically, those cases where recognition of
the uniform is of paramount importance to the job. Although some allowance is made for uniforms,
again, jobs where safety is a concern (especially with interaction with the public – fire fighters, police
officers, etc.) will generally provide employers greater latitude in this regard.
Employers also appear to have latitude where an employee belatedly adopts dress or personal
appearance standards that conflict with the employer’s dress code. In Hussein v. Waldorf Astoria, 134 F.
Supp. 2d 591 (S.D.N.Y. 2001), Hussein appeared for work at the Waldorf Astoria Hotel with a 2-5 day
old beard. He admitted that he previously had not been growing a beard, yet when asked about his
beard, he replied that it “is part of my religion.” Hussein made no effort to explain why he had never
worn a beard before, and failed to provide this employer with proper notification about his alleged
religion. The court decided that the hotel’s decision to deny Hussein an exception to its grooming
requirement was not a refusal to accommodate his religious needs, but rather a decision based on the
reasonable belief that his beard was not sincerely related to his religion. The court found that the hotel
was not obligated to accommodate Hussein’s last-minute request for an exception. (The court also noted
that Hussein filed a total of ten complaints, including four within the past year, and warned him against
the continuous filing of non-meritorious actions.)
While the holding in Hussein appears to provide that employers may second-guess employee
religious beliefs, that is not the case. The action did not attack the practice or belief, rather only the
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sincerity of the employee’s belief in the practice. Such was also the case in Eatman v. United Parcel
Service, 194 F. Supp. 2d 256 (S.D.N.Y. 2002). Plaintiff Charles D. Eatman brought a religious
discrimination claim against the United Parcel Service (UPS).
After giving it a lot of thought, Eatman started wearing dreadlocks as an outward sign of his
Protestant faith and his Nubian belief system. Unfortunately, the UPS dress code, as established by a
collective bargaining agreement, mandated that hairstyles for males must be worn in a “businesslike”
fashion. As such, dreadlocks as well as ponytails, Mohawks, green hair, and carved shapes were
unacceptable.
UPS said that Eatman could keep his dreadlocks if he chose to wear a hat. However, he was
limited in the kind of hat he could wear because of the length of his dreadlocks. The only possible hat
that he could wear was a wool ski cap-type hat. Eatman stated that wearing the wool hat destroyed
several of his locks, made him feel faint, and gave him headaches. Eatman brought in an expert
“locktician” who explained that wearing the wool cap smothered the locks, causing the hair to become
overheated and moist, which caused Eatman’s problems. UPS told Eatman that he would be suspended
if he did not wear the cap.
While UPS did not challenge the sincerity of Eatman’s religious devotion, they did challenge the
fact that he did not hold a bona fide religious belief requiring him to wear dreadlocks. “Impulses
prompted by dictates of conscience as well as those engendered by divine commands are . . . safeguarded
against secular intervention, so long as the claimant conceives of the beliefs as religious in nature.” Id.
at 269. However, an individual’s personal concerns are not protected. The court determined that
Eatman’s impulse to grow locks was not a religious dictate because he only claimed that wearing the
locks was a personal choice. Thus, there was no evidence of religious discrimination. While UPS
succeeded in the Eatman case, rarely will an employer be successful on this ground.
H.
Union Participation and Dues
The National Labor Relations Act provides that employees whose traditional religious beliefs
preclude them from joining unions cannot be required to join a union as a condition of employment.
However, a collective bargaining agreement may require those individuals to pay an amount equal to
union dues and initiation fees to a nonprofit organization. 29 U.S.C. § 169; Tooley v. Martin-Marietta
Corp., 648 F.2d 1239, 1243 (9th Cir. 1981), cert. denied 454 U.S. 1098 (1981) (permitting plaintiffs to
pay an amount equal to union dues to charity was a reasonable accommodation since the plaintiffs would
suffer the same economic loss as the union member employees); EEOC v. Union Independiente De La
Autoridad De Acueductos Y Alcantarillados De Puerto Rico, 279 F.3d 49 (1st Cir. 2002)(acknowledging
the rights of individuals to decline involvement with unions based on religious beliefs).
I.
Right to Infringe on Religious Belief or Practice
In some cases, an employer may rightfully impose upon an employee’s religious practice or
belief. In Swartzentruber v. Gunite Corp., 99 F. Supp. 2d 976 (N.D. Ind. 2000), a U.S. District Court in
Indiana held that an employer may insist that an employee modify his appearance in order to comply
with the company’s racial harassment policy and to avoid offending other employees. Swartzentruber
worked at a Gunite Corp. factory for about five years. As a self-professed member of the Ku Klux Klan,
Swartzentruber had a tattoo extending from his elbow to his wrist that depicted a hooded figure standing
in front of a burning cross. Several African-American employees complained to Gunite’s personnel
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manager, Mark Nelson, that they found the tattoo threatening and offensive. Nelson investigated the
complaints, inspected the tattoo and concluded that the tattoo might contribute to a hostile working
environment. Accordingly, he instructed Swartzentruber to cover the tattoo while at work, in response
to which Swartzentruber filed a Title VII religious discrimination complaint.
The court found both that Swartzentruber had not established a prima facie case of religious
discrimination, as he never communicated to Gunite that his tattoo was related to his religious beliefs,
and that even if he had, it was a reasonable accommodation to insist that Swartzentruber cover his tattoo
because it offended other employees and violated Gunite’s racial harassment policy. This is obviously a
limited exception. Keep in mind that if an accommodation of one religious belief impairs or infringes on
another’s religious belief or practice, then more than one (or an alternative accommodation) must be
reached. Here, the employee sought to violate the racial harassment policy of the employer, who sought
to comply with existing law. This compliance made the proposed accommodation far more reasonable.
It is generally not a reasonable accommodation to infringe on a religious belief or practice.
In Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470 (7th Cir. 2001), the plaintiff filed a
religious discrimination claim against her employer and also sought an injunction to allow her the right
to use the phrase “Have a Blessed Day” in her written communications. The plaintiff used the phrase
throughout her employment at U.S.F. with both co-employees and customers. She did not receive any
complaints about the use of this phrase until 1999, four years after she started working at U.S.F. U.S.F
instructed her to stop using the phrase in her correspondence with Microsoft, the company who made the
complaint. She was not told to stop using the phrase altogether. Indeed, U.S.F. stated that she could
continue using it with employees and others, but not with Microsoft.
However, the following Monday, she used that phrase in an email to Microsoft. Again, she was
warned not to do it, but she continued. She was given a written reprimand. The plaintiff next went to
the local newspaper to tell her story. The day after her article was printed, she sent another
correspondence to Microsoft using the same phrase.
The plaintiff stopped using the phrase for awhile, but in February 2000, she sent an email to
Microsoft with the phrase “HAVE A BLESSED DAY” all in caps and in quotes. She received yet
another reprimand. The plaintiff subsequently filed a complaint and a motion for injunction. After the
district court determined that U.S.F. had reasonably accommodated her, she appealed to the Seventh
Circuit Court of Appeals, arguing that U.S.F. was unilaterally restricting her religious practice. The
Seventh Circuit did not see it that way. The court agreed with the trial court and stated that the
plaintiff’s “religious practice did not require her it use the “Blessed Day” phrase with everyone.” The
plaintiff admitted that she did not use the phrase all the time nor was she required to by her religion.
“[A]n accommodation that allows her to use the phrase with some people, but not with everyone could
be a reasonable accommodation.” Therefore, U.S.F. was not liable for infringing on the plaintiff’s
religious beliefs.
J.
Don’t Break the Law
The accommodation process does not require an employer to break the law. In the case of Sutton
v. Providence St. Joseph Medical Center, 192 F.3d 826 (9th Cir. 1999), Providence offered Kenneth
Sutton a position as a senior network analyst. In order to work for Providence, Sutton was required to
fill out employment forms that asked for his social security number. Based on religious grounds, Sutton
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refused to provide his social security number as he believed the number was the “Mark of the Beast,”
prophesied in the Book of Revelations. In light of Sutton’s refusal to provide his social security number,
Providence refused to hire him. Sutton sued Providence for violating his Title VII rights. Providence’s
position was that they would violate federal law if they hired Sutton without the social security number
required by the INS Immigration Form I-9 and the Internal Revenue Code. The district court agreed
with Providence, reiterating that employers, at least in the Ninth Circuit, are not liable under Title VII
when accommodation of an employee’s religious beliefs would require the employer to violate federal or
state law.
K.
Conclusion
Both statute and the resulting case law have made it clear that employers are under increasing
obligations to find an accommodation when an employee’s religious belief or practice is at issue. This is
a broad responsibility that may often impact the remainder of the workforce not seeking the
accommodation. Consideration of the needs and desires of both the employee seeking the
accommodation and that of others is a difficult line for employers to walk.
However, an employer maintains, at all times, the burden of finding an accommodation, or
proving one does not exist in light of the hardship on the employer. The employer does not have the
option of ignoring these duties without running the risk of substantial liability. Therefore, the employer
must weigh its obligations against its business needs and justifications. Although often appearing to
conflict, there is a manner of ensuring that both the needs of the employee and his/her co-employees are
met. Remember that the basic premise of these laws is fairness and employers are under the obligation
to provide those with different religious beliefs the same rights in the workplace. Accommodations that
do not cause an undue hardship produce this result.
National Association Of College and University Attorneys
21
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