Coexist?

1. Coexist? • Current Religious Discrimination Issues Karen K. Fitzgerald karen@klbf.com www.klbf.com 214.265.7400

2. Increase in Claims • No surprise that religious discrimination claims are increasing. • 2,127 Charges in FY 2001 at EEOC. • 2,880 Charges in FY 2007. • These charges are approximately 3.5% of all EEOC charges filed.

3. Research Resources • New EEOC Compliance Manual on Religious Discrimination. • Issued July 22, 2008. • Available at www.eeoc.gov/policy/docs/religion.html • Rod Tanner, Religious Discrimination Law, 2007 Advanced Employment Law Course.

4. 4 typical claims • Disparate treatment • Harassment • Failure to Accommodate • Retaliation

5. Disparate Treatment • Treating applicants or employees differently based on their religious belief---or lack thereof---in regard to any aspect of employment. • 42 USC § 2000e-2 • Texas Labor Code § 21.051

6. Disparate Treatment Prima Facie Case • Plaintiff was a member of an identifiable religion; • Plaintiff was qualified for the position; • Plaintiff suffered an adverse employment decision; and • The adverse employment decision was differentially applied to plaintiff because of religion. • See Rubenstein v. Administrators of Tulane Educ. Fund, 218 F.3d 392 (5th Cir. 2000).

7. Harassment • Subjecting a person to harassment because of his or her religious belief or practice---or lack thereof.

8. Religious Harassment Prima Facie Case • Employee must show harassment was: • (1) based on religion; • (2) unwelcome; • (3) sufficiently severe or pervasive to alter the conditions of employment by creating an intimidating, hostile or offensive work environment; and • (4) that there is a basis for employer liability.

9. Refusal to Accommodate • Denial of an accommodation of an applicant's or employee’s sincerely held religious belief or practice (or lack thereof) if the accommodation will not impose an undue hardship on the conduct of the business. • 42 USC § 2000e(j) • Texas Labor Code §21.108

10. Refusal to Accommodate Prima Facie Case • Employee had a sincerely held religious belief that conflicts with an employment requirement; • Employee informed Employer of conflict; and • Employee was discharged for failing to comply with the conflicting requirement. • Weber v. Roadway Express, Inc., 199 F.3d 270, 273 (5th Cir. 2000). • Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 422-23 (Tex. App.---Houston [14th Dist.] 2000, no pet.).

11. What is Covered • Religion is defined very broadly under Title VII. • It includes all aspects of religious observance and practice as well as belief. • It includes not just traditional organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect. • 42 USC § 2000e(j)

12. Religious beliefs generally concern ultimate ideas about “life, purpose and death.” • Religious beliefs do not include social, political, or economic philosophies or mere personal preferences.

13. Examples of Religious Observances or Practices • Attending church or worship services. • Praying. • Wearing religious garb or symbols. • Displaying religious objects. • Following prescribed dietary rules.

14. Note: Determining whether a practice is religious turns on the employee’s motivation----not the nature of the activity.

15. Example • For a Seventh Day Adventist, following a vegetarian diet may be a religious observance or practice. • For other individuals, following a vegetarian diet is merely a matter of personal preference.

16. Thus, determining whether a practice is religious is done on a case by case basis. • Problematic for employers, • The lack of bright line rules always make things challenging for employers.

17. “Sincerely Held” The requirement that an employer accommodate religious beliefs only applies to those religious beliefs that are “sincerely held.”

18. Factors to Determine whether Belief is Sincerely Held • Whether the employee has behaved in a manner inconsistent with the professed belief; • Whether the accommodation sought is a particularly desirable benefit likely to be sought for secular reasons; • The timing of the request; and • Any other reason the employer has to believe that the request is not sought for religious reasons.

19. Statutory Exception to Covered Entities • Religious Organizations are excluded from coverage. • 42 USC § 2000e-1(a) and Texas Labor Code § 21.109. • These sections allows religious organizations to give employment preference to members of their own religion.

20. Limits to the Exception • This exception only allows religious organizations to prefer to employ persons who share their religion. • It does NOT allow religious organizations to otherwise discriminate in employment decisions. • Unless the ministerial exception applies.

21. Ministerial Exception • Non-statutory exception to the protections against religious discrimination. • Premise is based on constitutional First Amendment considerations of the separation of church and state under the free exercise and establishment clauses.

22. What is the ministerial exception? • This exception prevents clergy members from bringing claims of discrimination under federal discrimination laws. • The theory is that governmental regulation of church administration would be an impermissible entanglement of church and state.

23. Leading Fifth Circuit case on this exception is McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972). • Good discussion of this issue in Elvig v. Calvin Presbyterian Church, 397 F.3d 790 (9th Cir. 2005).

24. Recent Local Case of Interest • Klouda v. Southwestern Baptist Theological Seminary, 2008 WL 833493 (N. D. Tex. 2008) • Sherri Klouda was Assistant Professor of Old Testament languages. • Her hiring was extremely controversial. • She was only hired after a compromise agreement was reached that limited her employment to teaching Hebrew and Aramaic grammar, syntax, and exegesis.

25. She sued for gender discrimination after the Dean that her that her contract was not renewed because she was a woman and a “mistake that the trustees needed to fix.” • The Chair of the Trustees was quoted in the local newspaper as saying that hiring a woman to teach men was a “momentary lax of the parameters.”

26. Judge McBryde granted the Seminary’s motion for summary judgment. • He noted that if a claim challenges a religious institution’s employment decision, an important inquiry is whether the employee is a member of the clergy or otherwise serves a ministerial function. • If so, the ministerial exception applies.

27. Judge McBryde concluded that the seminary was a “church” and that Klouda was a “minister” as contemplated by the ministerial exception. • Klouda taught Hebrew and Aramaic grammar, syntax and exegesis. • The court concluded that her teachings were designed to assist and prepare the students for ministry.

28. Judge McBryde also concluded that the decision to terminate Klouda was also ecclesiastical in nature. • Thus, it was also prohibited under the ecclesiastical abstention doctrine as well. • The ecclesiastical abstention doctrine prohibits courts from involving themselves in ecclesiastical matters, such as theological controversies, church discipline, etc. • This prohibition stems from the First Amendment’s religious clauses.

29. Who Falls within scope of ministerial exception? • “Clergy” • However, courts have interpreted clergy quite broadly and ministerial exception has been applied to: • Music Minister • Choir Director • Communications Director • Mashgiach (person responsible to see that Jewish dietary laws are followed).

30. Types of Employment Decisions that are Impacted by this Protection • Recruitment, Hiring and Promotion • Discipline and Discharge • Compensation and other terms, conditions or privileges of employment

31. Bona Fide Occupational Qualification • An employer may hire and employ employees on the basis of religion if religion is a “bona fide occupational qualification” reasonably necessary to the normal operation of the particular business or enterprise. • 42 USC 2000e-2(e)(1) • Extremely narrow defense.

32. Successful BFOQ Case • Kern v. Dynalectron Corp., 577 F.Supp. 1196 (N.D.Tex. 1983). • Requirement that pilot convert to Islam was not based on preference of contractor working in Saudi Arabia. • Requirement was based on fact that non-Muslim employees caught flying into Mecca would be beheaded under Saudi law.

33. Religious Harassment • Quid Pro Quo Harassment • Employee is required or coerced to abandon, alter or adopt a religious practice as a condition of employment. • Hostile Environment • Employee is subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the employee reasonably finds the work environment hostile or abusive.

34. Key Points for Employers to keep in Mind • Note: Harassment can be based on religion even if religion is NOT expressly mentioned. • The employee must show that the conduct is unwelcome. • This is an important point in situations involving proselytizing employees. • Many times an employee will be uncomfortable with a proselytizing co-worker.

35. Note: an employer never has to accommodate the expression of religious belief in the workplace where such an accommodation could potentially constitute harassment of co-workers. • (See EEOC Compliance Manual Examples at pages 17-23)

36. Reasonable Accommodation of Sincerely Held Religious Beliefs • Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. • This obligation only kicks in once the employer is on notice of the need and request for accommodation.

37. Source of Duty to Reasonably Accommodate • Title VII, 42 USC § 2000e(j) • Texas Labor Code § 21.108 • Texas Labor Code § 52.001(c) • This section applies to retail employers

38. Common Types of Accommodations Requests • Work Schedules • Dress and Grooming Issues • Religious Expression or practice at work • Prayer Breaks • Wearing or displaying a religious symbol on uniform or in office

39. The Request for Accommodation • The Employee seeking the accommodation must make the employer aware of: • (1) the need for accommodation and • (2) that it is being requested due to a conflict between religion and work. • The employee must explain the religious nature of the belief or practice at issue.

40. Need to Discuss the Request • Both the employer and the employee play a role in resolving an accommodation request. • There is a duty to cooperate. • If the request does not contain sufficient information, the employer may make a limited inquiry into the facts and circumstances of the employee’s claim that this is a belief or practice that is religious and sincerely held.

41. Caution: employers need to remember that idiosyncratic beliefs can be a sincerely held religious belief. • Verification of the sincerely held religious belief does not need to come from a church. • Instead, it can come from others who are aware of the employee’s belief or practice.

42. Reasonable Accommodation • An employer never has to provide an accommodation that would pose an “undue hardship.” • Determination of reasonable accommodation must be made on a case by case basis.

43. If there is more than one accommodation that is reasonable, the employer is not required to provide the accommodation favored by the employee. • An employee is not required to accept a pay reduction or loss of some other benefit if there is a reasonable accommodation that does not require the loss of an employment benefit.

44. Undue Hardship • An employer can show undue hardship if the accommodation would impose more than “de minimis cost.” • Note: This standard is much lower than the ADA undue hardship standard, which requires a showing that the accommodation would cause significant difficulty or expense.

45. Relevant Factors • Type of workplace • Nature of the employee’s duties • Identifiable cost of the accommodation in relation to the size and operating costs of the employer • Number of employees who will need a particular accommodation

46. The employer must prove how much cost or disruption would be imposed by the requested accommodation. • It cannot be a hypothetical cost or disruption. • It must be an actual cost or impact. • It must be more than just “de minimis cost.”

47. However, some Fifth Circuit cases seem to rely on a lower standard. • Some hold that the “mere possibility” of an undue hardship can be sufficient to reject a reasonable accommodation. • Jones v. United Parcel Service, 2008 WL 2627675 (N.D. Tex. 2008), citing Bruff v. North Mississippi Health Services, Inc., 244 F.3d 495, 501, n. 14 (5th Cir. 2001) • Case on appeal now.

48. Examples • Not More than a De Minimis Cost • Payment of administrative costs to rearrange schedules or recording substitutions. • Payment of infrequent or temporary payment of premium wages. • More than a De Minimis Cost • Regular payment of premium wages required. • Hiring of additional employees required.

49. Courts have found undue hardship in the following contexts: • Accommodation diminishes job efficiency. • Accommodation infringes on other employees job rights or benefits. • Accommodation impairs workplace safety or causes co-workers to carry the employee’s share of potentially hazardous or burdensome work.

50. Seniority Systems and Collective Bargaining Agreements • A requested accommodation may pose an undue hardship if it deprives another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement.