Religious Discrimination, Reasonable Accommodation for Religious Beliefs and Religious Practices in the Workplace

1. Religious Discrimination, Reasonable Accommodation for Religious Beliefs and Religious Practices in the Workplace Awo Sarpong Ansu Senior Attorney-Advisor US Equal Employment Opportunity Commission Office of Field Programs 202-663-4611 Awo.sarpong_ansu@eeoc.gov

2. Legal Requirements • Title VII of the Civil Rights Act of 1964 prohibits agencies from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. • The Act also requires agencies to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the agency. Ministerial Exception: Title VII does not apply to employment of clergy: First Amendment Free Exercise Clause

3. Definition of Religion • The Commission defines "religion" to include moral or ethical beliefs about right and wrong that are sincerely held with the strength of traditional religious views. • Religious discrimination also includes discrimination against someone because s/he is an atheist.

4. WHICH ONE OF THESE IS A RELIGIOUS BELIEF PROTECTED BY TITLE VII? • Sally does not eat meat or dairy products because she believes that God created and equally values all living beings, that animals possess souls, and that it is immoral and unethical for humans to kill and exploit animals. She believes that milking an animal forcibly removes some of its life energy, a component of the soul. • Mary does not eat meat or dairy products because she believes that consuming them causes cancer and other diseases. She also believes that the meat and dairy industry is politically powerful and has persuaded the government to conceal the facts from the public.

5. WHICH ONE OF THESE IS A RELIGIOUS BELIEF PROTECTED BY TITLE VII? • Sally’s beliefs are religious because they are part of a comprehensive moral or ethical belief system about life, purpose, and death that are sincerely held with the strength of traditional religious views. • Mary’s beliefs are not religious because they are based on her view of medicine and politics rather than on a comprehensive moral or ethical belief system.

6. Religion - Nature of Practice or Belief • In most religious discrimination cases whether or not a practice or belief is religious is not at issue. • In cases in which the issue does exist, the Commission will look at the sincerity of the person’s beliefs • Be mindful that a person’s religious beliefs may change over time, individuals may choose to adhere to some tenets of their religion but not others, or they may have a sincere belief in a particular religious practice, even if that practice is not observed by other followers of their religion.

7. Employment Discrimination Based on Religion • Disparate Treatment • Harassment • Disparate Impact • Reasonable Accommodation Be mindful of the differences!

8. Disparate Treatment When a complainant alleges that the agency treated another individual better than it treated him/her or otherwise treated him/her differently because of that individual’s religious beliefs. Religious organizations may prefer members of their own religion for positions which are religious in nature

9. Three-Part Process The three-part process in a disparate treatment case involving circumstantial evidence: 1. Complainant presents a basic (prima facie) case: • Basis(es) (such as race, sex, religion, etc.) • Adverse action occurred • A connection between the two 2. Agency provides a reason for action. 3. Complainant shows agency’s explanation is not true and is a pretext for discrimination.

10. Disparate Treatment Janet, a social worker, works for an agency which provides tuition reimbursement for college credits leading to a B.A. in sociology. Janet, who practices Native American spirituality, applies for a sociology class that focuses on spirituality and culture. Janet’s supervisor denies her request for tuition reimbursement on the grounds that the employer shouldn’t pay for employees to study “voodoo.” Is this unlawful disparate treatment?

11. Disparate Treatment By refusing to provide the tuition reimbursement solely because of the religious content of the class, Janet’s supervisor has discriminated against her on the basis of religion.

12. Disparate Treatment Beta Corporation requires all of its employees to attend diversity training. Joanne believes that some of those teachings are contrary to her fundamentalist Christian beliefs. When Joanne’s supervisor refuses to excuse her from the sessions, she goes but sits in the back and reads her bible. Joanne’s supervisor issues her a letter of reprimand for insubordination for not paying attention during the mandatory training, but does not discipline other employees who didn’t pay attention. Is this unlawful disparate treatment?

13. Disparate Treatment While the employer may ordinarily require employees to attend training sessions, it may not discipline employees who do not participate in them for religious reasons, or who express their opposition through religious activity, more harshly than it disciplines other non-participating employees. Note: The supervisor may have to accommodate Janet

14. Disparate Impact • The complainant alleges that an agency’s neutral policy or practice adversely affects a protected class. • The burden shifts to the agency to show business necessity. • The complainant may rebut business necessity by showing other means available to achieve the same objective with less discriminatory impact. Not a frequent claim.

15. Harassment • Title VII of the Civil Rights Act of 1964 prohibits harassing or otherwise discriminating based on: • Affiliation: because an individual is affiliated with a particular religious group. • Physical or Cultural Traits: because of physical, cultural or linguistic characteristics such as accent or dress associated with a particular religion. • Perception: because of the perception or belief that a person is a member of a particular religious group, whether or not that perception is correct. • Association: because of an individual’s association with a person or organization of a particular religion.

16. Harassment • Anti-harassment principles apply to religion just as to harassment on other protected bases, such as race, gender or national origin. • Law protects employees from being subjected to a hostile work environment, i.e., an environment tainted by intimidating, abusive ridicule or insult based on religion. • Title VII also requires employers to permit employees to practice their religion, which may include engaging in religious expression, unless the expression imposes an undue hardship. Balance: Protect employee’s right to religious expression while protecting others from harassment

17. Harassment Harassment is unwelcome offensive conduct in the workplace where: 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

18. Harassment Wamiq was raised as a Muslim but no longer practices Islam. His supervisor, Arif, is a very devout Muslim who lectures Wamiq about abandoning Islam and advises him to follow the teachings of the Koran. Arif denies Wamiq a promotion, saying that Wamiq would never be a Khalipha (divinely inspired leader). Arif also says that Wamiq could improve his prospects by joining Arif and other Muslims for weekly prayer sessions in Arif’s office. Wamiq does not heed Arif’s advice and ultimately is fired by Arif. Is this unlawful harassment?

19. Harassment Arif’s conduct indicates that the promotion was denied because of Wamiq’s failure to participate in the prayer sessions and practice Islam. Absent evidence that the promotion denial was for some other reason, the employer is liable for conditioning Wamiq’s employment on his adherence to Arif’s views of appropriate religious practice.

20. Harassment During a conversation with her supervisor, Aimee reveals that she is new to the area and does not know many people. Aimee’s supervisor responds that there are many people Aimee’s age at the supervisor’s church and invites Aimee to visit the church on Sunday. Is this unlawful harassment?

21. Harassment Title VII is not implicated. This invitation cannot reasonably be perceived to be coercive and is not made a condition of employment. Caveat: Supervisor needs to be very careful!

22. Harassment Beth’s colleague, Bill, repeatedly talked to her at work about her prospects for salvation. For several months, she did not object and discussed the matter with him. However, he persisted even after she told him that he had “crossed the line” and she didn’t want to have anymore non-work related conversations with him.

23. Harassment When Beth tried to put an end to her conversations with Bill, his conduct became unwelcome. The employer must intervene if it is aware that Beth has asked that the conduct stop and Bill persists.

24. Harassment Conduct Must be Sufficiently Severe or Pervasive to Constitute Harassment Marvin is an Orthodox Jew who was hired as a radio show host. When he started work, his co-worker, Stacy, pointed to his yarmulke and asked, “Will your headset fit over that?” On a few occasions, Stacy referred to the yarmulke as a beanie. For example, she said “Nice hat. Is that a beanie? Do you have a propeller for it? Do they come in different colors?” Although the comments about Marvin’s yarmulke were offensive, they were neither severely hostile nor sufficiently frequent to create a work environment hostile to Jews. Betty is a Mormon. During a disagreement regarding a joint project, a co-worker, Julian, told Betty that she didn’t know what she was talking about and that she should go back to Salt Lake City. When Betty subsequently proposes a different approach to the project, Julian tells her that her suggestions are as “flaky” as he would expect from “her kind.” When Betty tries to resolve the conflict, Julian tells her that if she is uncomfortable working with him, she can either ask to be reassigned, or she can “just pray about it.” Over the next six months, Julian regularly makes negative references to Betty’s religion. His persistent offensive remarks create a hostile environment.

25. Harassment One Instance of Physically Threatening Conduct May be Enough to Constitute Hostile Environment Ihsaan is a Muslim. Shortly after the terrorist attacks on September 11, Ihsaan came to work and found the words “Vengeance for the victims” scrawled in red marker on his office door. Because of the timing of the statement and the implicit physical threat, this incident, alone, is sufficiently severe to constitute hostile environment harassment.

26. Religion and Reasonable Accommodation • Under Title VII, an agency has a duty of reasonable accommodation for sincerely held religious beliefs and practices unless to do so would cause an undue hardship. • As a general rule, the reasonable accommodation requirement arises most often in cases where an individual is seeking time off for religious observances Unlike the other protected groups under Title VII, religion includes an affirmative requirement on the part of the agency: the duty of reasonable accommodation.

27. Prima Facie Failure to Accommodate Religion Case A Complainant may present a prima facie case by showing: • That s/he holds a religious belief that conflicts with an employment requirement. • That s/he informed his/her superior of the conflict; and • That s/he has been penalized for failing to comply with employment requirements.

28. Undue Hardship • An agency can avoid its accommodation obligation only where it shows that an accommodation would constitute an undue hardship • In terms of religious accommodation, undue hardship can mean a significant cost or other non-cost factors, such as office disruption.

29. Undue Hardship - Costs An agency may assert undue hardship to justify a refusal to accommodate an employee’s need to be absent from his or her scheduled duty hours if the agency can demonstrate that the accommodation would require more than a de minimis (minimal impact on agency’s business) cost. The Commission will determine what constitutes more than a de minimis cost while giving due regard to: ●the identifiable cost in relation to the size and operating costs of the agency, and ●the number of individuals who will in fact need a particular accommodation.

30. Undue Hardship - Seniority Rights Undue hardship would be shown where a variance from a bona fide seniority system is necessary in order to accommodate an employee’s religious practices when doing so would deny another employee his or her job or shift preference guaranteed by that system. Arrangements for voluntary substitutes and swaps do not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system.

31. Accommodating Religious Practices My name is Laini Luthuli and I am a Muslim. Muslims perform five prayers a day. Each prayer does not take more than a few minutes to perform. Prayers are performed at dawn, noon, mid-afternoon, sunset, and night. Muslims may pray almost anywhere, such as in fields, offices or factories. I went to this agency’s personnel office to respond to a newspaper ad for 100 temporary flat sorter machine operators, but I left without applying because of the sign that was posted on the office door. Here, I copied it down so that you can read what the sign says. ATTENTION: THERE WILL BE NO EXCEPTIONS TO THIS POLICY The duration of employment for temporary flat sorter machine operators will not exceed 12-months. Salary is fixed at $12.00 per hour. Applicants for this position must be available to work flexible day, evening, and night shift schedules, and they must be willing and able to work up to 40 hours per week in 4 to 10 hour shifts daily, at the discretion of management. If you are selected for this position, you will receive one (1), ½ hour unpaid lunch break during each work day that exceed 6 hours, and two (2)15-minute paid breaks per 8-hour work day. To minimize disruption to the flat sorter machine operation and to maximize use of equipment, all flat sorter machine operators must break concurrently while the flat sorter machine is being serviced. Accommodation Means Making Exceptions

32. Accommodating Religious Practices My name is Daniel Steel and I am a Roman Catholic. I asked my manager, Rob, if I could take annual leave on Good Friday so that I could go to church. Rob is also a Roman Catholic so I was surprised when he denied my request. His reasoning? When I asked, Rob told me that “our” faith does not require Catholics to refrain from working on Good Friday.

33. Accommodating Religious Practices My name is Salomon Silvers. Please, call me Sal. I have to speak with you, because I don’t know where else to go. I asked my supervisor if I can take annual leave next Friday afternoon so that I can attend religious services. He responded, “I can’t give you leave on that afternoon because it’s Christmas eve. I’m having enough problems trying to replace the Christians who want leave on that date. ” It sounds to me as though the manager is telling me that I’m not entitled to the same consideration as other employees. Is he correct?

34. Alternatives for Accommodating Religious Practices that Conflict with Work Schedules ●Voluntary Substitutions and “Swaps” ●Flexible Scheduling ►Arrival ►Departure ► Floating or Optional Holidays ► Flexible Work Breaks ► Use of Lunch Time in Exchange for Early Departure ► Staggered Work Hours ► Permitting Employee to Make Up Time Lost due to Observance of Religious Practices ► Lateral Transfer and Change of Job Assignments

35. Accommodating Religious Practices Some reasonable religious accommodations that agencies may be required to provide workers include: ►Leave for religious observances ► Providing Time and/or place to pray ►Ability to wear religious garb ►Accommodating certain hairstyles or grooming habits ►Honoring dietary requirements during meetings or training sessions where meals are served ►Permitting time-off during a mourning period for a deceased relative

36. Accommodating Applicants for Employment Unless it can show that not doing so would result in undue hardship to the agency, an agency cannot: • Schedule examinations or other selection activities in conflict with religious needs • Make pre-selection inquires to determine an applicant’s availability to work during the agency’s scheduled working hours • Refuse to allow observance of a Sabbath or religious holiday.

37. Guidelines on Religious Exercise and Religious Expression in the Federal Workplace • On August 14, 1997, the White House issued Guidelines that apply to all civilian executive branch agencies, officials and employees in the Federal workplace. The Guidelines principally address the religious exercise and religious expression of employees whose work areas are not regularly viewed by the public. • The general principle in the guidelines is that agencies must treat all employees with the same respect and consideration, regardless of their religion or lack thereof.

38. Religion in the Workplace Strive for balance