Religious Discrimination and Reasonable Accommodation in the Workforce

1. Religious Discrimination and Reasonable Accommodation for Religious Beliefs and Religious Practices Awo Sarpong Ansu, Senior Attorney-Advisor US Equal Employment Opportunity Commission Robin Runge, Senior Policy Advisor U.S. Department of Labor, Civil Rights Center

2. Webinar Objectives • Describe the requirements under the Workforce Investment Act and Title VII of the Civil Rights Act prohibiting religious discrimination and requiring reasonable accommodation for religious beliefs and practice in the workforce development system and; • Identify illegal discrimination based upon religion in the workforce development system.

3. Question • Have you received or heard of any complaints about religious discrimination in your program?

4. Sec. 188 of the Workforce Investment Act of 1998 • Religion • Race, Color, & National Origin (Title VI, Civil Rights Act of 1964) • Sex (Title IX, Education Amendments of 1972) • Any Age (Age Discrimination Act of 1975) • Disability (Sec. 504 of the Rehabilitation Act of 1973) • Political Affiliation or Belief • WIA Participant Status 29 U.S.C. § 2938(a)(2); 29 CFR Part 37.5 “No individual shall be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with, any such program or activity because of…”

5. Title VII of the Civil Rights Act of 1964 • Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., prohibits employers and employment agencies, as defined in the statute, from discriminating based on race, color, religion, sex, or national origin. • State workforce agencies and American Job Centers may be regarded as “employment agencies” as defined in Title VII. Therefore, they are not permitted to: • fail or refuse to refer for employment, or otherwise discriminate against, any individual” because of religion. 42 U.S.C. § 2000e-2(b). • “print or publish or cause to be printed” any job announcement that discriminates based religion. • And they are required to reasonably accommodate religious practices, unless to do so would create an undue hardship.

6. The U.S. Equal Employment Opportunity Commission • The U.S. Equal Opportunity Commission (EEOC) is responsible for enforcing Title VII of the Civil Rights Act of 1964 which prohibits discrimination in hiring, firing and all terms and conditions of employment based on race, color, religion, sex and national origin.

7. Definition of Religion • The Equal Employment Opportunity 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.

8. IS THIS 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. • Does Sally have 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.

9. IS THIS A RELIGIOUS BELIEF PROTECTED BY TITLE VII? 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. Does Mary have a religious belief protected by Title VII? • 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.

10. 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.

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

12. Disparate Treatment When a complainant alleges that the employment 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

13. Question • Janet applies for an American Job Center-sponsored tuition reimbursement program for college credits leading to a BA in sociology. Janet, who practices Native American spirituality, applies for a sociology class that focuses on spirituality and culture. The American Job Center Denies Janet’s request for tuition reimbursement on the ground the AJC shouldn’t pay for students to study “voodoo.” • Is this unlawful disparate treatment? • The American Job Center’s actions may constitute unlawful disparate treatment if the denial of tuition reimbursement was based solely on Janet’s religious or the religious content of the class.

14. Disparate Impact • An employment agency’s neutral policy or practice adversely affects a protected class.

15. Disparate Impact • An individual files a complaint with an Equal Opportunity (EO) Officer stating that she is enrolled in a job training program to which she was referred by an American Job Center. The program has required meetings on Saturdays. Barb is Jewish and observes Shabbat so she asked the director of the program if she could be excused from the meetings on Saturdays but her request was denied. • The EO Officer discovers that the program has a policy that mandates attendance at meetings on Saturdays without exception. • Is this disparate impact discrimination? • This may be considered disparate impact discrimination because the American Job Center’s seemingly neutral policy adversely affects individuals practicing Judaism, as they are unable to participate in the Saturday programs due to their religious beliefs. Organizations should refrain from using polices that mandate rules without exception. If possible, programs should seek to provide religious accommodations.

16. 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.

17. 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 employment agencies to permit individuals 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

18. 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.

19. Harassment Wamiq was raised as a Muslim but no longer practices Islam. His colleague in the Job Corps Center, Arif, is a very devout Muslim who lectures Wamiq about abandoning Islam and advises him to follow the teachings of the Koran. Arif tells Wamiq that he 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. Wamiq alerts Job Corps Center staff about Arif’s advice and expresses his discomfort. Is this unlawful harassment based on religion? • 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 Job Corps Center may be liable for conditioning Wamiq’s employment on his adherence to Arif’s views of appropriate religious practice.

20. 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.

21. Harassment One Instance of Physically Threatening Conduct May be Enough to Constitute Hostile Environment Ihsaan is a Muslim Job Corps student. Ihsaan came to his dorm room and found the words “Vengeance for the victims” scrawled in red marker on his dorm room door. Depending on the timing of the statement and the implicit physical threat, this incident, alone, may be sufficiently severe to constitute hostile environment harassment.

22. Religion and Reasonable Accommodation • Under Title VII, an employment 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.

23. Undue Hardship • An employment 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.

24. 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. Accommodation Means Making Exceptions

25. Accommodating Religious Practices 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.

26. Accommodating Religious Practices Daniel Steel is a Roman Catholic. He asked the job training director if he could miss class on Good Friday so that he could go to church. The director denied Daniel’s request, telling him that “our” faith does not require Catholics to refrain from working on Good Friday.

27. Alternatives for Accommodating Religious Practices ●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

28. 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

29. Accommodating Applicants for Employment Unless it can show that not doing so would result in undue hardship to the employment agency, it 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.

30. 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.

31. Resources CRC – External Enforcement Statutes and Regulations • http://www.dol.gov/oasam/programs/crc/external-statutes-regs.htm EEOC – Religious Discrimination Information • http://www.eeoc.gov/laws/types/religion.cfm • http://www.eeoc.gov/eeoc/newsroom/release/6-11-14.cfm

32. Contact Information Awo Sarpong Ansu, Senior Attorney-Advisor U.S. Equal Employment Opportunity Commission Awo.sarpong_ansu@eeoc.gov Robin Runge, Senior Policy Advisor U.S. Department of Labor, Civil Rights Center Civilrightscenter@dol.gov

33. Religion in the Workplace Strive for balance