Title VII Update on Religious Discrimination and Persecution ClaimsLinda Wong
Presented to the American Conference Institute Employment Law Superconference March 20, 2000.
The Equal Employment Opportunity Commission’s Guidelines on religious discrimination, 29 C.F.R. 1605, states that when determining “whether or not a practice or belief is religious” under Title VII, the Commission “will define religious practices to include moral and ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The term “religious practice” includes observances as well as practices.
The fact that the claimant’s views are not held by an “organized” religious group, or even a group, or the fact that the religious group in which a claimant asserts membership does not hold the particular view at issue, does not determine whether the claimant’s belief is a religious belief. See EEOC v. Alliant Techsystems, Inc., 78 Fair Empl. Prac Cas. (BNA) 37 (W.D.VA. 1999). The beliefs need not be consistent or logical, but must be sincerely held. Id., 78 Fair Empl. Prac Cas. (BNA) at 41-42, and cases cited there (In Alliant, the claimant requested relief from union dues, alleging that his religious beliefs prevent him from belonging to any organization other than his church, although his church did not have a rule against union membership; cross motions for summary judgment decided against defendants). See also Cowan v. Strafford R-VI School District, 77 Fair Empl. Prac. Cas. (BNA) 1834 (8th Cir. 1999). (Teacher’s contract was not renewed following complaint that she was disseminating New Age beliefs when she presented “magic rocks” to her second grade students; school district not entitled to relief from judgment or new trial when teacher’s evidence was sufficient for reasonable jury to conclude that decision-makers were motivated by religious concerns towards teaching of New Ageism, and even where there was evidence that teacher’s performance was otherwise poor.)
State law definitions regarding protection from religious bias may be based on different statutory language, and raise the possibility of results divergent from federal law. The case of Shuchter v. New Jersey Division on Civil Rights, 117 N.J. Super. 405 (App. Div. 1971), interpreted the New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) which referred to “creed” rather than “religion,” but it was held that the Legislature intended that “creed” be limited to its principal meaning, that of religious belief. Accordingly, it would not include purely moral, philosophical, social, or political values or beliefs, as in the Shuchter case, which alleged discrimination against a pacifist organization. However, N.J. Attorney General Formal Opinion No. 17-1949 (March 28, 1949) offers potential protection, under the “creed” provision, for those who are agnostic or non-believers, as well as those affiliated with a particular faith.
Under federal law and EEOC Guidelines, the employer is required to make a reasonable accommodation for the employee’s religious belief or practice so long as it does not cause the employer undue hardship in the conduct of its business. See Anosnia Board of Education v. Philbrook, 479 U.S. 60 (1986). Such accommodations could include rearranging the employee’s schedule, permitting a voluntary “swap” of hours and assignments between employees, Smith v. Pyro Mining Co., 827 F.2d 1081 (6th Cir. 1987); or permitting a lateral assignment or change of job assignments. See Wright v. Runyon, 2 F.3d 214 (6th Cir. 1994)(employer may offer opportunity to bid on position which would not require plaintiff to work on the Sabbath). Where there is more than one alternative accommodation which would not cause the employer hardship, the employer (or labor organization) must offer the accommodation which has the least impact on the employee’s opportunities, terms, conditions and privileges of employment under the EEOC Guidelines.
The most frequently encountered issue in this area is the conflict between work scheduling and the employee’s Sabbath observance. Accommodation may involve operating with a reduced workforce during the Sabbath observance. See Protos v. Volkswagen of America, Inc., 797 F.2d 129 (3d Cir.), cert. denied 479 U.S. 972 (1986); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). The cases of Protos and Hardison both involved plaintiffs who were members of the Worldwide Church of God, and who could not work from sundown on Saturday. Hardison examined the extent of the employer’s obligation to accommodate the employee’s religious practices and observances under Title VII. However, the United States Supreme Court has held that states are prohibited from enacting laws that require employers to provide employees with an absolute and unqualified right to abstain from work on their chosen Sabbath day, because to do so would be to advance a particular religious practice in violation of the Establishment Clause of the First Amendment. Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).
The federal courts have adopted a relatively low standard for assessing “undue burden,” and the employer is accordingly not required to incur overtime costs, violate a seniority system or require another employee to accept the shift or hours of the employee requesting the accommodation. See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977); Huston v. Auto Workers, Local 93, 559 F.2d. 477 (8th Cir. 1977); Turpen v. Missouri-Kansas-Texas Railroad Co., 736 F.2d 1022 (5th Cir. 1984)(one and one-half hours is a reasonable amount of time for the employer to spend in considering the rescheduling of employees to accommodate a plaintiff); Eversley v. MBank Dallas, 843 F.2d 172 (5th Cir. 1988)(employer may offer a lower-paying job as an accommodation). The assessment of whether a particular accommodation causes undue hardship on either an employer or a union must be considered in the particular factual context of each case. Protos, supra, 797 F.2d at 134-135. In the Protos case, plaintiff’s line production job was easily learned, the employer maintained a crew of roving absentee relief operators to fill absences in the line, and the employer was not obligated to pay overtime wages in order to fill plaintiff’s Saturday absences, according to the Court of Appeals, which affirmed the district court’s findings in favor of plaintiff.
A claim based on American Indian tribal affiliation may be national origin discrimination, since Indian tribes are still considered to be nations, and bias is based on place of origin. See, e.g., Dawavendewa v. Salt River Project Agricultural Improvement & Power District, 154 F.3d 1117 (9th Cir. 1998); but see, Alabama and Conshatta Tribes of Texas v. Big Sandy Independent School District, 817 F. Supp. 1319, 1329 (E.D. Tex. 1993)(Recognizing the “Native American Indian Movement” as a religion).
II. WHAT ACCOMMODATION IS REQUIRED FOR RELIGIOUS PRACTICES?
The employer is not required to accommodate a religious practice of the employee that does not require a specific time for performance. In the case of an employee who was discharged for taking unauthorized leave from her job during the employer’s busy season to go on a pilgrimage, in order to make out a prima facie case, the Roman Catholic employee had to show that it was necessary, in accordance with her bona fide religious belief, to go on the pilgrimage at that particular time. Tiano v. Dillard Department Stores, Inc., 76 Fair Empl. Prac Cas. (BNA) 561 (9th Cir. 1998). In the Tiano case, the Court of Appeals reviewed de novo the determination of the district court that had found plaintiff credible and found that she had met her burden of establishing a prima facie case of religious discrimination. Plaintiff had testified that she had to undertake the pilgrimage in October, which fell during the employer’s busy season. The record revealed that the plaintiff was a very productive sales person, that she was a devout Catholic, and that she had asked at least three supervisors in the chain of command for leave without pay to go on the pilgrimage. The Court of Appeals, in effect, substituted its judgment for that of the trial court, finding that plaintiff had a bona fide religious belief that she needed to make the pilgrimage, but no temporal mandate. Id., 76 Fair Empl. Prac. Cas. (BNA) at 563-64).
A. Hair Length and/or Style
The employment cases that litigate hair length or style as an expression of religious practice tend to arise from workplaces where the employer desires to standardize the appearance of its workforce, particularly those employees who interact with the general public, and thus “represent” the employer. See EEOC v. United Parcel Service, 94 F.3d 314 (7th Cir. 1996)(UPS had a strict policy that no employees with beards are to be assigned public contact positions; in this case, there was a genuine issue of material fact as to whether the employer’s offer of jobs with no public contact to bearded applicants was a reasonable accommodation).
Many cases involve military, police or security services. See Geller v. Secretary of Defense, 423 F.Supp. 16 (D.D.C. 1976)(Jewish chaplain in the Air Force should be permitted to wear a beard in accordance with Jewish tradition because he was employed by the military specifically to serve in a religious capacity).
Appearance-regimented workplaces have been challenged to accept bearded employees on medical grounds under the American with Disabilities Act or state law handicap and disability provisions. See EEOC v. United Parcel Service, 860 F.2d 372, 373 (10th Cir. 1988)(The opinion noted that pseudo folliculitis barbae affects approximately 25% of the black male population, and that the treatment is to refrain from shaving. In this case, the UPS sought to maintain its bar against bearded employees in public contact jobs). In the case of Police, FOP, Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1999), the police department’s refusal to make religious exemptions from its no-beard policy for police officers, while it made exceptions on medical grounds as an accommodation under the ADA, violated officers’ rights under the Free Exercise Clause of the First Amendment and the Civil Rights Act, which also requires the same “reasonable accommodation” by employers for employees’ religious beliefs. The police department had insufficient justification in “uniformity” under strict scrutiny standard for failing to grant exemption to male Sunni Muslims who were required by their religion to grow a beard. Id., see also Sadruddin v. City of Newark, 34 F. Supp. 2d 923 (D. N.J. 1999)(Muslim firefighter discharged for refusing to shave beard has made out a prima facie case of religious bias).
In the case of Robinson, the police officer asserted that his dreadlocks were an expression of his religion (Nazarite) and African-American culture. Robinson v. District of Columbia, 79 Fair Empl. Prac. Cas. (BNA) 1791 (D.C. Cir. 1999). Defendant’s motion for summary judgment was granted in part, the court finding that the grooming order was a neutral regulation of general applicability which had been enforced against whites as well as other wearers of dreadlocks, who, as a result conformed their hairstyles to comply with requirements. At oral argument, plaintiff had conceded that the defendant had an interest in establishing a uniform image for police (Defendant’s motion for summary judgment was denied as to the Freedom of Speech and Freedom of Association claims).
B. HEADWEAR, OTHER RELIGIOUS CLOTHING AND INSIGNIA
Wearing of a yarmulke may remain an issue only in the military. See Goldman v. Weinberger, 475 U.S. 503 (1986)(Air Force rule prohibiting wearing of yarmulke while on duty did not violate First Amendment or Title VII where required by the need for uniformity).
However, a turban, with its increased bulk, may present more occasions for conflict in a variety of jobs. In the case of Kalsi v. New York City Transit Authority, 62 F. Supp. 2d 745 (E.D.N.Y. 1999), a Sikh subway car inspector was discharged for refusing to wear a hardhat. No preferential treatment was established so as to support an inference of bias, where a Sikh maintenance supervisor who had never been an inspector was not required to wear a hardhat in his position and had been transferred to that position in order to accommodate his religious practice. The hardhat requirement safety-based, and the fact the employer enforced the safety footwear requirement less stringently than the hardhat requirement did not raise an inference of discrimination.
C. EFFECT OF A COLLECTIVE BARGAINING AGREEMENT
It is clear that unions have a duty to accommodate the religious practices of their memberships as well as employers under the language of Title VII. However, the presence of a union contract may complicate the establishment of a reasonable accommodation. That, however, does not absolve the employer of exploring accommodation with the union. See , e.g., Balint v. Carson City, NV, 180 F.3d 1047 (9th Cir. 1999)(Collective bargaining agreement was not complete defense to religious bias claim against prospective employer, where plaintiff, who was a member of the Worldwide Church of God, withdrew her application for employment when told that the employer would not accommodate her need to be off on Saturday. Employer may be obligated to explore accommodation by implementing split shift scheduling).
In the case of Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998), the City satisfied its duty to accommodate the belief against facilitating abortion, held by a Roman Catholic police officer, who was occasionally assigned to guard abortion clinics, by providing him with the opportunity under his collective bargaining agreement, to transfer with no reduction in pay or benefits to a comparable district that did not have an abortion clinic. This would eliminate conflict between the officer’s beliefs and job duties; however, the City had no duty to accommodate the officer by placing him on his preferred assignment. The labor agreement provision that barred bias in transfers and assignments on the basis of religion did not render the City’s accommodation unreasonable, because the officer was not forced to transfer.
Neither can the obligation to pay union dues be considered an absolute. For example, in the recent case of EEOC v. Alliant Techsystems, Inc., 78 Fair Empl. Prac. Cas. (BNA) 37 (W.D. Va. 1999), the employer was confronted with an employee who genuinely felt that he could not pay union dues because he could not be a member of any organization other than his church. Believing that the source of the object was the political stance taken by the union on some issues funded by a portion of each members’ dues, the employer and union permitted the plaintiff to donate that portion of his dues to a charity. However, on further challenge by the employee, the court found that the employer and union failed to show undue hardship in permitting an accommodation that would allow the employee to donate the full amount of his dues to charity in lieu of payment. Loss of one member’s dues was found to be insignificant and a “mass movement” of other employees for the same benefit was unlikely.
III. MISCELLANEOUS TOPICS
A. SEXUAL ORIENTATION TOLERANCE AS A BASIS FOR DISCRIMINATION BY A RELIGIOUS ENTITY
Sexual orientation tolerance may provide a justifiable reason for an employment decision by a religious entity. Hall v. Baptist Memorial Health Care Corp, 27 F.Supp. 1029 (W.D. Tenn. 1999). In that case, the court granted summary judgment in favor of the religious-based employer that discharged an employee whose job included interpretation of institutional policy and work with student outreach and ministry groups, and who became an ordained minister of a church that publicly supported homosexuals. The court found that the employee’s position as a minister of her sect conflicted with her job for her employer, because support for homosexuals conflicted with the employers organization’s beliefs which considered homosexuality to be a sin. The court also engaged in an examination of whether the employer was an entity entitled to the protection of the religious exemption of Title VII.
Also of interest in the Hall case was plaintiff’s argument that the employer had waived the Title VII exemption for religious entities by its advertisements and declarations in various institutional publications, including the employee handbook and policy and procedure manual, that it was an equal opportunity employer. 27 F. Supp. 2d at 1037. However, the court found that the Title VII exemption was not a privilege that could be waived, but rather an expression of Congress to protect the free exercise of religion under the First Amendment to the United State Constitution, in order to minimize governmental intrusion upon religious organizations. Id. See also Little v. Wuerl, 929 F.2d (3d Cir. 1991)(Married Protestant teacher’s contract not renewed by parish parochial school after her remarriage, subsequent to a divorce; summary judgment granted to the parish school because application of Title VII’s prohibition against religious discrimination is constitutionally suspect; the parish did not waive the exemption by hiring a Protestant; the exemption was not waivable.); Maguire v. Marquette University, 627 F. Supp. 1488 (E.D. Wisconsin. 1986)(“The Court is troubled by the fact that both parties seem to agree that this Court should have something to say about plaintiff’s eligibility to teach in Marquette’s theology department…[but] Title VII and the First Amendment…preclude this Court from assuming jurisdiction of the subject matter of this action.’).
However, it is not universally true that state law protections for religious organizations will be equivalent to those enjoyed under federal law. See Ward v. Hengle, 124 Ohio App. 3d 396, 706 N.E. 2d 392, 76 Fair Empl. Prac. Cas. (BNA) 36 (Ohio App. 1998)(Parish priest, church and Roman Catholic diocese was not exempt from suit under Ohio anti-bias statue for alleged religious bias; church failed to show undue hardship in any effort to accommodate employee who considered himself a monk, but whose order was not formally recognized by the Roman Catholic church. The employee was not in the public eye, and wearing of monk’s garb did not interfere with his work.)
B. PRE-EMPLOYMENT SCREENING
The issue raised in one case arising out of the Eastern District of New York is an interesting one. Bennett v. County of Suffolk, 78 Fair. Empl. Prac. Cas. (BNA) 1536 (E.D.N.Y. 1999). In Bennett, the court denied cross motions for summary judgment on the basis that factual issues existed as to whether certain questions on a pre-employment psychological test were, in effect, used as a religious screening tool. Plaintiff, who had applied for a police job in which he would be responsible for a firearm, had passed the civil service exam, but failed to pass the psychological test. Plaintiff asserted that his responses on the psychological test expressed his religious beliefs and were unnecessary in evaluating him for a position in law enforcement. The court found that the issue was “factually loaded,” that it could not rule that the disputed questions were per se unconstitutional, and that whether the questions had a rational and legitimate basis for determining the qualifications of a potential police officer was contested by the opposing experts. Id., 78 Fair Empl. Prac. Cas. (BNA) at 1538.
C. WORKPLACE HARASSMENT
The reported cases involving religious-based workplace harassment are not common. In the case of Ngeunjuntr v. Metropolitan Life Insurance Co., 146 F.3d 464 (7th Cir. 1998), a salesman failed to make out a prima facie case of hostile environment workplace harassment based on his Thai origin and Buddhist religion where three comments over a seven-year period by supervisors were not viewed by the court as sufficiently harsh to support a claim. In addition, there were no adverse job consequences and the salesman had a long-standing history of poor performance and disruptive behavior which explained the irritation of his supervisors. Id., 146 F.3d at 466-467.
In Heitzman v. Monmouth County, 321 N.J. Super. 133 (App. Div. 1999), another recent case applying the theory of hostile work environment, the court found that sporadic, casual anti-Semitic remarks of a non-supervisory employee to the plaintiff, a Jewish co-worker, were not so severe or pervasive that a reasonable person of Jewish ancestry would believe that his conditions of employment were so altered as to give rise to liability under the applicable anti-discrimination law. The Jewish employee had never complained about the anti-Semitic comments, although he had a history of complaining frequently about second-hand smoke, thus undermining his complaint. Compare Taylor v. Metzger, 152 N.J. 490 (1998), a race discrimination case, where the New Jersey Supreme Court held that the single incident of harassing conduct evidenced in this suit was sufficient to create a hostile work environment under state law. 152 N.J. at 508 (Summary judgment for employer denied where a racial epithet was uttered by county sheriff to African American under-sheriff in the presence of another supervising officer.)
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