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by Lee Bantle / No comments

Religious Discrimination at Work: Emerging Issues

Introduction1

Religious discrimination in employment is prohibited by federal, New York State, and New York City law. Under all three statutes, it is unlawful to discriminate in employment on the basis of the employee’s religion and requires employers to make reasonable accommodations for the religious practices of the employee as long as such accommodation is not an undue hardship on the employer.2

A. Disparate Treatment Based on Religion

Generally, an employee can demonstrate discrimination based on religion in the same manner that one proves racial discrimination in the employment context (i.e., the McDonnell Douglas framework).3 First the plaintiff must present evidence of actions taken by the employer that appear discriminatory. The burden then shifts to the employer to show some legitimate, nondiscriminatory explanation for the negative employment action. If the employer meets this burden, then any presumption of discriminatory purpose drops from the case unless the employee can show that the explanation offered by the employer is a pretext. It is important to recognize that these are burdens of production, and the burden of persuasion always remains with the plaintiff.

B. Lack of Accommodation of Religious Beliefs

Employers have the additional obligation to make reasonable attempts to accommodate the religious practices of their employees. In making out a prima facie case of lack of accommodation, an employee must demonstrate that; a) s/he has a bona fide religious belief, the practice of which conflicts with employment duties; b) s/he has informed the employer of this conflict; and c) the employer has threatened or subjected the employee to discrimination or dismissal because of the conflict. Once the employee has satisfied this test, the burden shifts to the employer to show that providing the accommodation would be an undue hardship.

Determining what is an undue hardship is at the heart of “accommodation” litigation. In Trans World Airlines, Inc. v. Hardison et al., 432 US 63 (1977), the Supreme Court held that under Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq., an accommodation is an undue hardship if it would involve more than a de minimis expense to the employer. Specifically, the Court held that where an employer has a collective bargaining agreement with a union, the employer had no duty to try to negotiate changes to that agreement in order to accommodate an employee’s desire not to work on his Sabbath.

By contrast, in New York City Transit Authority v. Executive Department Division of Human Rights, 89 N.Y.2d 79 (1996), the New York Court of Appeals held that an employer had not offered proof of undue hardship simply by showing that accommodation of the employee’s religious observance would violate its collective bargaining agreement with the local union. The Court held that, short of beginning litigation with the union, the employer had a duty to attempt to negotiate changes with the union that might accommodate the employee’s specific needs (though there was no obligation to find an actual accommodation, the employer was obligated to try). This decision does not specifically reference Title VII, or mention that the opinion is in disagreement with federal jurisprudence, but it clearly represents a distinction between the protections offered under federal and state law.

C. Exception for Religious Employers

Because of the desire not to impede the religious expression of religious institutions, both federal and New York state law specifically exempt religious institutions from some of the obligations not to discriminate on the basis of religion.

Under 42 U.S.C. § 2000e-2, the duty not to discriminate does not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of its activities. New York Exec. Law § 296(11) allows religious institutions to employ only individuals within their faith and take other actions “calculated by such organization to promote the religious principles for which it is established or maintained.” Such carve-outs from employment discrimination law are often referred to as a “ministerial exception.”

Relying on the Title VII ministerial exception, the Supreme Court held that religious institutions may lawfully choose to hire only individuals who are active members of their faith, whether the work to be performed is religious or not.4 In Little v. Wuerl, a religiously affiliated school was allowed to fire a teacher whose (marriage or divorce) was not in accordance with the tenets of the religion.5

D. Intersectionality of Religious Freedom and Other Rights

Because many religions involve some moral approval or disapproval of lifestyle choices, employers are sometimes placed in the difficult position of trying to accommodate the religious needs of one employee without trampling on the rights of others to be free from various forms of harassment. These issues can come up in many ways, but typically cases involve: derelictions of duty, proselytizing to coworkers or clients, and expressions of disapproval of homosexuality. Generally, courts have found accommodation of these religious needs too burdensome and have sanctioned the discharge of an employee who refuses to refrain from such activities while at work.

1. Derelictions of Duty

Many cases arise involving a religious employee’s desire not to engage in or to assist others in engaging in conduct that the employee finds immoral. Courts have upheld an employer’s right to transfer or terminate an employee who refuses to perform tasks that are a part of their job function based on religious objections, when the employee’s religious needs involve more than de minimis costs, or threaten the safety of others.

Overnight truck drivers who refuse to do runs with members of the opposite sex because of religious objections do not need to be accommodated, because the difficulty of ensuring same sex driving companions is an undue burden upon the employer.6 Hospital workers who refuse to participate in emergency abortion procedures because of religious objections can be transferred to other departments.7 A police officer who refuses to provide protection to an abortion clinic within his district based on his religious beliefs may be transferred.8 Transferring a counselor who refused to provide counseling services to gay and lesbian couples to another position is a legitimate accommodation, and not a discriminatory, employment action.9

2. Proselytizing in the Workplace

Employees may be reprimanded or otherwise subjected to disciplinary actions for proselytizing while at work. In Knight v. Connecticut Department of Public Health,10 the employer was allowed to reprimand two employees and otherwise limit their speech. The Court held that the state’s desire to offer religiously neutral service outweighed the plaintiff’s right to discuss their religious beliefs while operating as agents of the state.11 Knight and Quental were nurses in the Connecticut department of public health, and self-described born-again Christians, who proselytized to their patients. Knight told a same sex couple that God did not endorse homosexuality, and when the patient complained, she was suspended. Quental worked with patients seeking mental health care, and told them that God and prayer might alleviate their problems. For this behavior Quental was reprimanded; and her employer explained that while she was free to have her religious beliefs she could not promote such beliefs while at work.

In Chalmers v. Tulon Company of Richmond,12 the employee, a born-again Christian, sent letters to her coworkers expressing her disapproval of their immoral lives. She was fired for this conduct. The Court held that this was not religious discrimination recognizable under Title VII, because Chalmers never informed her employer that her religion required her to write such letters to her coworkers. And, even if her employer had been so informed, it still would have been free to fire her, because there was no way to reasonably accommodate such behavior without risking lawsuits from the other employees.

3. Harassment of Gay and Lesbian Employees

In Bodett v. Coxcom Inc.,13 Bodett filed suit under Title VII claiming disparate treatment (and not failure to accommodate) based on her status as an evangelical Christian, when she was fired for telling a subordinate that God considered homosexuality a “sin”, and telling the same subordinate during a performance review that Bodett would be happy if this woman were dating a man, and unhappy if this woman were to begin a relationship with another woman. The Ninth Circuit held that this behavior was harassing, and in direct violation of the employer’s anti-harassment policy. The Court found that because Bodett admitted her conduct, she was legitimately fired for it based on the rules outlined in her employer’s anti-harassment policy. Notably, the Court made clear that the result may have been different had this been a lack of accommodation suit.

The same year, when the Ninth Circuit was faced with a similar plaintiff claiming both disparate treatment and lack of accommodation, once again the Court found in favor of the employer. In Peterson v. Hewlett-Packard Co.,14 the plaintiff responded to Hewlett-Packard’s diversity campaign posters with signs of his own. The company had posted signs around the office showing individuals labeled “gay,” “blonde,” and otherwise, with the caption “diversity is our strength.” The plaintiff then posted large typed signs in his cubicle with biblical quotes condemning homosexuality, which could be seen by customers and coworkers from the hall. One of the biblical quotes stated that “if a man lie with mankind…they shall surely be put to death.” Hewlett-Packard supervisors thought these quotes might be offensive and were therefore in violation of the company’s anti-harassment policies.

When supervisors discussed the matter with plaintiff, he refused to remove his signs unless the “gay” posters were also removed, because he believed the other posters were offensive to his religious beliefs as a Christian opposed to homosexuality. Plaintiff also admitted that he intended his quotes to be hurtful, as a way to encourage gays and lesbians to change their lifestyles. After several discussions with supervisors, plaintiff was fired for insubordination due to his continued refusal to take down his quotations. The Court found against plaintiff on both the disparate impact and accommodation claims. Plaintiff could show no similarly situated employees were treated more favorably, and (relying on Hardison and Chalmers) the court held that an employer needn’t accommodate an employee’s religious beliefs if the result would discriminate against other employees (however, religious conduct that merely irritates other employees is entitled to accommodation attempts).

E. Proposed Legislation: The Workplace Religious Freedom Act

Some members of the United States Congress have taken notice of the courts’ interpretation of what does or does not constitute religious discrimination in employment. In the 2005 legislative session, the “Workplace Religious Freedom” Act (WRFA) was proposed in both the House and Senate. The bill attempts to redefine what constitutes an undue hardship on an employer, so as to avoid the Court’s decision in Hardison and its progeny (i.e., that an accommodation is an undue hardship if it would impose more than a de minimis burden on the employer). If passed, the WRFA would make it unlawful for an employer to refuse to hire or otherwise discriminate against or fail to accommodate an employee who would be able to perform the “essential functions” of the job.

The WRFA would define “essential functions” to include only those job functions that are a part of the core requirements for employment, and would not include practices related to clothing, taking time off from work, or any other practice (temporal or tangential) that restricts the ability to wear religious clothing, to take time off for a holy day, or to participate in a religious observance or practice.

If a job requirement would interfere with an employee’s ability to engage in religious conduct, the employer must accommodate the employee unless to do so would be an undue burden. The term undue burden is further defined to include only such accommodations as would cause significant difficulty or expense to the employer. In determining what constitutes an undue burden, the bill instructs the court to consider: (1) the identifiable costs of the accommodation (including the costs of loss of productivity, retraining or hiring employees or transferring employees from one facility to another), (2) the overall financial resources and size of the employer as compared to the number of employees, and (3) (if the employer has multiple offices) the geographic separateness and administrative or fiscal relationship between the facilities.

The ACLU has spoken out vociferously against a prior form of the proposed WRFA.15 An ACLU letter concerning the proposal explained that while the ACLU found the efforts to better accommodate the religious needs of employees laudable, such reform should be more narrowly tailored to prevent fringe and majority religious groups from trampling on the rights of the employer’s clients and other workers.

The ACLU posits that the WRFA, if passed, would unduly harm various groups. Religious minorities might be subjected to proselytizing and other unwanted harassment such as the displaying of swastikas.16 Women and men might be segregated in the workplace17 to the possible detriment of employment opportunities for either gender. People whose lives or life choices are deemed morally unsuitable to another may be unable to receive adequate services because of provider objections.18

The ACLU thinks a better bill could and should be proposed, which limits its application to protecting the religious freedom of employees to dress, groom, and observe holy days in accordance with their faith. To this end, the ACLU recently praised the passage of a state-based WRFA in Pennsylvania. Using the Pennsylvania WRFA, the ACLU represented, and obtained an injunction allowing a Muslim man to continue in his work as a firefighter while wearing a beard in accordance with his religious beliefs.19

Other groups have responded enthusiastically to the federally proposed WRFA as currently drafted. The Orthodox Union praised the federally proposed WRFA for some of the same potential consequences the ACLU fears.20 In addition to the benefits of allowing people to observe religious holy days and dress and groom themselves in accordance with their faith, the Orthodox Union hopes the proposed federal WRFA will require employers to accommodate other religious needs.

Conclusion

Overall, claims of religious discrimination are as broad as claims of discrimination based on race or gender, and other protected characteristics, however, because religious discrimination claims are generally based on actual conduct (religious practice or observance) in addition to mere identity, courts are often called upon to make determinations as to what forms of religious conduct should or must be accommodated and what religious practices may be legitimately banned from the workplace.

When the religious conduct at issue involves the observance of a holy day, the debate is usually centered around the economic costs to the employer and the disruption to the schedules of the other employees. When the religious practice involves a display of moral approval or disapproval, there are additional concerns regarding the rights of other employees or clients.

In general, New York state law requires a greater effort to accommodate an employee’s religious needs than does federal law. However, if Congress should pass a Workplace Religious Freedom Act, religious employees may find that they are afforded greater protections under federal law.

* * *

1 This article was prepared with the capable assistance of my law clerk, Mychii Snape.

2 Under 42 U.S.C. § 2000e-2(a): It shall be an unlawful employment practice for an employer–

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s religion. Under 42 U.S.C. § 2000e(j): the term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

Under New York Exec. Law § 296(10), it shall be an unlawful discriminatory practice for any employer, or an employee or agent thereof, to impose upon a person as a condition of obtaining or retaining employment, including opportunities for promotion, advancement or transfers, any terms or conditions that would require such person to violate or forego a sincerely held practice of his or her religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or other holy day in accordance with the requirements of his or her religion, unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s or prospective employee’s sincerely held religious observance or practice without undue hardship on the conduct of the employer’s business.

The New York City Administrative Code § 8-107(3) sets forth the City’s employment discrimination law.

3 See McDonnell Douglas Corp. v. Green, 411 US 792 (1973).

4 Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints et al. v. Amos et al., 483 US 327 (1987).

5 Little v. Wuerl, 929 F.2d 944 (3d Cir. 1991).

6 Virts v. Consolidated Freightsways Corporation of Delaware, 285 F.3d 508 (6th Cir. 2002).

7 Shelton v. University of Medicine & Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000).

8 Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir. 1998).

9 Bruff v. North Mississippi Health Services, Inc., 244 F3d 495 (5th Cir. 2001).

10 275 F.3d 156 (2d Cir. 2001).

11 Notably, this case involved a government employer, and therefore involved questions under the Establishment Clause.

12 101 F.3d 1012 (4th Cir. 1996).

13 366 F.3d 736 (9th Cir. 2004).

14 358 F.3d 599 (9th Cir. 2004).

15 2004 S. 893, with language identical to that of 2005 H.R. 1445 and 2005 S. 677.

16 In Kaushal v. Hyatt Regency Woodfield, 1999 WL 436585 (N.D. Ill. 1999), the court held that the employer was not required to accommodate an employee’s desire to put a swastika on a mirror as a religious good luck symbol.

17 See Virts, 285 F.3d 508 (6th Cir. 2002).

18 See Shelton, 223 F.3d 220 (3d Cir. 2000).

19 ACLU Press Release: http://aclupa.org/pressroom/acluobtainpreliminaryinju.htm (2/10/2006).

20 http://www.ou.org/public/vote/2000/wrfa.htm (2/10/2006).

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