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August 10, 2005 Charlie Morgan Alston & Bird LLP 1201 West Peachtree Street

American Correctional Association 135th Congress of Correction. Workforce Legal Issues with Costly Consequences : Religion In The Workplace: How Accommodating Must You Be?. August 10, 2005 Charlie Morgan Alston & Bird LLP 1201 West Peachtree Street Atlanta, Georgia 30309-3424

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August 10, 2005 Charlie Morgan Alston & Bird LLP 1201 West Peachtree Street

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  1. American Correctional Association 135th Congress of Correction Workforce Legal Issues with Costly Consequences:Religion In The Workplace: How Accommodating Must You Be? August 10, 2005 Charlie Morgan Alston & Bird LLP 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7817 cmorgan@alston.com

  2. Law Regarding Religious Discrimination in the Workplace • For governmental employers, the First Amendment's Free Exercise Clause forbids the adoption of laws designed to suppress religious beliefs or practices, unless a narrowly tailored, compelling interest or a religion-neutral policy • Title VII makes it unlawful to discriminate against an employee "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. §2000e-2(a)(1). • State laws, e.g., California makes it unlawful for an employer to discriminate based on an employee's "religious creed."

  3. EEOC Charges Alleging Religious Discrimination

  4. Religious Discrimination • In 2004, EEOC received 2,466 charges of religious discrimination. EEOC resolved 2,676 religious discrimination charges and recovered $6.0 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation). *The U.S. Equal Employment Opportunity Commission, Religion Based Charges FY 2004

  5. What is "Religion" If the asserted belief stems from a person's "moral, ethical, or religious beliefs about what is right and wrong" and is "held with the strengths of traditional religious convictions, " then it constitutes a religion that warrants protection by the law. Welsh v. United States, 398 U.S. 333, 340(1970).

  6. Can anything be a "Religion?" Church of Body Modification (body piercing) (maybe) Church of the World Creator (white supremacism) (yes) Veganism (not under California law) "Confederate Southern American" (maybe) "Unconventional beliefs about cold fusion and other technologies" (maybe) Ku Klux Klan (maybe) Satanism (probably)

  7. What are an Employer's Obligations? • Under Title VII, Employer cannot discriminate against an employee because of religious observance and practice, unless an employer demonstrates that it is unable to reasonably accommodate the observance or practice without undue hardship • To pass muster under the Free Exercise Clause, the governmental employer's policy or practice must be religion neutral and of general applicability

  8. Title VII's Reasonable Accommodation without Undue Hardship • Sounds like obligations under Americans with Disabilities Act, but dramatically different • "Undue hardship" – more than a de minimis cost on the employer • Applies to both economic costs, such as lost business, and non-economic issues, such as making an exception to a seniority system

  9. Reasonable Accommodation without Undue Hardship • Keys in making religious accommodation decisions: • Employee is not necessarily entitled to accommodation of his or her choice • The accommodation does not have to be cost-free to the employee • Burdens on other employees matter • Employee is not entitled to a complete accommodation if some part of request causes undue hardship

  10. Religious Discrimination: Case Studies

  11. Cook v. Cub Foods, 99 F.Supp.2d 945 (N.D. Ill. 2000) • Lutheran employed as store maintenance manager claimed store manager maintained a religiously hostile work environment • Twice played "Satanic death metal" music over loudspeakers • Posted pictures from characters out of Dungeons and Dragons • Particular character, "Lord Soth – had an evil look in his eyes"

  12. Booth v. Maryland, 327 F.3d 377 (3rd Cir. 2003) • Rastafarian uniformed correctional officer challenged Maryland's correctional system's rules which prohibited him from wearing dreadlocks • Claimed prohibition violated Free Exercise Clause • Maryland defended, stating that grooming policy was facially neutral, promoted safety, uniformity, discipline and esprit de corps • Employee presented evidence that a Jewish employee was allowed a beard and a Sikh was allowed a turban and long beard

  13. Daniels v. City of Arlington, Texas, 246 F.3d 500 (5th Cir. 2001) • Plainclothes police officer wore a small, gold cross pin as a symbol of his evangelical Christianity • Continued wearing it after transfer to uniformed position • Police Department told officer to stop wearing pin based on "no buttons, etc." rule • Employer offered alternatives: (a) wear a cross ring or bracelet, (b) wear the pin under uniform, or (c) transfer to a non-uniform position. Officer refused and was fired • Claimed prohibition violated free speech and Title VII

  14. Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004) • Cashier engaged in various forms of body modification including facial piercing and cutting • Employer began enforcing no-facial-jewelry policy and employee terminated • Employee claimed membership in the Church of Body Modification, a 1,000 member group whose mission statement is to have its members "grow as individuals through body modification and its teachings"

  15. Beadle v. Hillsborough County Sheriff's Dep't, 29 F.3d 589 (11th Cir. 1995) • Former employee of county prison was precluded from working from sundown Friday to Saturday because of his Seventh Day Adventist religious beliefs • Department provided employee with an employee roster sheet and authorized him to advertise his need for swaps. Department also allowed employee to request use of his sick days, vacation time if he was unable to secure a swap • Department did not always approve employee's requests for the use of vacation because the jail was understaffed and could have jeopardized jail security

  16. Peterson v. Wilmur Communications, 205 F.Supp.2d 1014 (E.D. Wis. 2002) • Supervisor was member of World Church of Creator, a white supremacist political organization • Supervised eight employees, including three non-white employees • Photographed in newspaper holding "The White Man's Bible" and holding a tee-shirt commemorating individual who targeted and killed non-white individuals in a two-day shooting spree • Employer demoted him from being supervisor

  17. Religious Accommodation in Practice • Take All Requests Seriously • Requests Should Be Submitted in Writing • Ask Questions • Consider All Possible Accommodations • Document the Entire Accommodation Process Completely • Do Not Close the Door Completely

  18. American Correctional Association 135th Congress of Correction Workforce Legal Issues with Costly Consequences:Religion In The Workplace: How Accommodating Must You Be? August 10, 2005 Charlie Morgan Alston & Bird LLP 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7817 cmorgan@alston.com

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