Chapter 11
Religious
Discrimination
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reproduction or distribution without the prior written consent of
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Learning Objectives (1)
 Discuss background of religious discrimination,
and how it is similar to, and differs from other
protected characteristics
 Understand Title VII’s broad definition of religion
for discrimination purposes
 Explain religious conflicts under Title VII and
give examples
 Define ‘reasonable accommodation’ and its
‘undue burden’ limit
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Learning Objectives (2)
 Describe religious harassment and give
examples
 Recognize the relationship between unions and
workplace religious conflicts
 Recognize that there are ways management can
avoid and minimize religious discrimination
conflicts via prevention
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This is Not Your Forefathers’ Religious
Discrimination
 Religion’s role in human history and governance:
e.g., Henry VIII’s break from the Catholic Church
through JFK’s candidacy, to today
https://www.youtube.com/watch?v=-WdgjS5j2po
 The U.S. Constitution coverage, based on
colonial history
 First Amendment: Establishment and Free Exercise
clauses form “separation of church and state”
 Title VII prohibits discrimination in employment
based on religion
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Major Religions of the World—Ranked by
Number of Adherents
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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
(‘organized’ religion?)
Wiccan/Pagan/Druid
0.3
0.1
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This is Not Your Forefathers’ Religious
Discrimination (2)
 Small number of EEOC claims
 On the rise generally since 1993
 Spike after September 11, 2001/hostility to Islam
 Traditional Title VII concern: discrimination
based on difference (Catholic, Jewish, Muslim –
overlap with national origin)
 Increase in issues based on fundamentalist
Christian activities, practices, values conflicts
 Sharing the faith vs. company policies
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This is Not Your Forefathers’ Religious
Discrimination (3)
 Public employees: constitutional guarantees for
federal, state, and local government employees
when government is employer
 Due process, Equal protection, Freedom of religion
 Religious Institutions: largely exempt re Title VII
 Ministerial exception (recall: Gannon case)
 BFOQ for some other staff positions (e.g., academia)
 Even some secular activities exempted (e.g., LDS
gym janitor case)
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This is Not Your Forefathers’ Religious
Discrimination (4)
Two Key Private Sector Concepts:
 Duty to reasonably accommodate: The
employer’s Title VII duty to seek to avoid conflict
between workplace policies and employee’s
religious practices or beliefs
 Undue hardship: Burden to accommodate
employee’s religious conflict too onerous for
employer to have to bear (‘accommodation’ limit)
 Cases rarely turn on definition of ‘religion,’ infra
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What is Religion? (1)
 Context: consider this category vs. others:
 Choice vs. inherent characteristic, but
 Unrational (faith-based), values-driven, core ID factor
 Key considerations for determining whether ‘religion’ is
in-play:
 Is the belief sincere and closely held?
 Does it take the place of religion in the employee’s
life?
 Atheism, white sup’y considered Title VII religions
 Case: Peterson v. Wilmur Communications
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What is Religion? -- 2
 Employer duty to accommodate
 Attaches to the conflict itself, not to when the conflict
arises (after-hire conversions protected)
 Applies to religious practices, not religious beliefs
 Worship rituals (e.g., ablutions)
 Proselytizing at work (e.g., pro-life ‘mission’)
 Attire, grooming Scenario 1
 Conflicts like Buonanno v. AT&T case: diversity policy vs.
religious beliefs
 Scenario 3
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Religious Conflicts: prima facie case
 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
 Scenario 2
 Once prima facie case is established the burden
shifts to the employer to prove reasonable
accommodation was offered
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Religious Conflicts -- process
 Employer considerations
 Make sure the basis for conflict is a religious one
 Attempt a good-faith accommodation of the religious
conflict
 Understand the limit of employer duty
 The right to be free of religious discrimination is
not absolute
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Employer’s Duty to Reasonably
Accommodate
 The duty to accommodate depends on specific
situation – get creative
 Iterative process – engage employee regarding
his/her interests, suggest possibilities
 Employer relieved of liability if
 Employee was reasonably accommodated
 In intractable cases, good-faith attempt was made to
reasonably accommodate the employee
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Employee’s Duty to Cooperate in
Accommodation
 Under Title VII, employer is not required to
resolve conflict in the way the employee wants
 Accommodation need not be the most
reasonable
Case: Chalmers v. Tulon Company
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Factors determining reasonableness of
accommodation
 Whether the employer made an attempt at
accommodation
 Size of the employer’s workforce
 Type of job in which the conflict is present
 Employer’s checking with other employees to see if
anyone was willing to assist in the accommodation
 Financial cost of accommodation
 Administrative, operational burdens of
accommodation and effects on production
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Factors in ‘Undue Hardship’ (1)
 Factors determining undue hardship (limit):
 Nature of the employer’s workplace
 Type of job needing accommodation
 Financial cost of the accommodation
 Willingness of other employees to assist in the
accommodation
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Factors in ‘Undue Hardship’ (2)
 Factors determining undue hardship (cont’d.)
 Possibility of employee transfer and its effects
 What is done by similarly situated employees
 Number of employees available for accommodation
 The burden of accommodation on the union (if any)
 Emergencies
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Undue Hardship -- Conclusion
 Courts find undue hardship if an employer must:
 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
 Relatively low standard; contrast Disability cases in Chap 13
 force other employees to trade places with the
employee who has a religious conflict
Case: TWA v. Hardison
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Religious Harassment (1)
 Two situations: “heresy harassee” and martyr
 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
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Religious Harassment (2)
 To avoid liability employer policies 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 all employees are given comparable
opportunities to use workplace time and resources for
religious practices
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Union Activity and Religious Discrimination
 Unions are also under a duty to reasonably
accommodate religious conflicts
 Frequent conflicts regarding:
 Union membership
 Payment of union dues
 Picketing and striking
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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
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Management Tips (1)
 Prevention Policy: make sure all employees
understand that they are not to discriminate
against employees on the basis of religion
 Keep workplace religious comments and
criticisms to a minimum
 Take all employee notices of religious conflicts
seriously
 After notice of a religious conflict, immediately
try to find ways to manage the matter
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Management Tips (2)
 Ask the employee with the conflict for
suggestions on solving the problem
 Ask, but don’t require, other employees to assist
 Do not challenge that employee’s religious
beliefs during a conflict, only practices relevant
 Document elements of undue hardship –
metrics?
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