As employers are all too well aware, the workplace is not a vacuum, and many of the issues that roil society are unavoidably reflected within it. Religious discrimination is perhaps a perfect example of that.
Today’s growing sectarianism, which is causing people to be less tolerant of other religions, as well as lingering intolerance generated by the 9/11 attacks—and people’s growing willingness to carry their faith into the workplace—unfortunately has landed this issue squarely in employers’ laps.
Combine this with people’s greater willingness to assert their perceived rights. The U.S. Equal Employment Opportunity Commission points out there were 4,152 religious discrimination claims filed with the agency during fiscal 2011, a 9.5% increase from the previous year. Such claims have increased steadily since 2005, and the pace is not expected to slow down any time soon.
All this creates a conundrum for employers, who have to walk a fine line. On one hand, there is the issue of letting people express their religious values, be it by wearing religious headdress, taking time off for their Sabbath, or taking breaks during the day to say their prayers.
On the other hand, employers have to worry about not causing resentment among fellow employees for the accommodations they grant. Nor—dare we say it?—should they be forced to accommodate workers to the point where it seriously cuts into their business’ profits, or even puts their firms’ survival at risk. An example of that would be the retailer whose busiest days fall on an employee’s Sabbath, for which time off is required.
What to do? Fortunately there are some steps employers can take to at least try to keep everyone happy. Knowledge of the law and training for supervisors and managers can defuse many of the situations that lead to religious discrimination claims. A neutral approach and a willingness to go at least halfway often help as well. Here are ten thought, actions, and tips to consider:
Understand that the definition of religion under Title VII of the Civil Rights Act (the federal law prohibiting discrimination on the basis of religion) is very broad: “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” For example, atheism would qualify, although agnosticism would not. Be aware that employees who may not be traditionally religious, or who appear to be only nominally religious, may still assert a claim for religious discrimination. You should treat them with the same sensitivity you would treat someone professing a strong faith in a more traditional religion.
2. Nondiscrimination and hiring.
To overcome the appearance to some applicants and employees that employees of any particular religion are favored in your organization, you must especially emphasize in your written applicant and employee materials that the company does not discriminate in hiring, promotion, benefits and other terms and conditions of employment on the basis of religion. Be sure that any psychological or personality tests used in recruiting and hiring have been tested against the EEOC’s selection guidelines for nondiscriminatory impact. The rare exception may be an employer who has an essentially religious mission for his commercial enterprise, in which some may qualify for the “bona fide occupational qualification” status for religious requirements.
3. Mission and policies.
Company policies should be carefully worded to avoid making religious belief an implicit requirement for being part of the company. General principles in a mission statement or other policy, even if based on religious concepts or teachings, may be acceptable if carefully worded. (Many concepts governing behavior and ethical practice are directly derived from religious teachings, and you may or may not be aware of the connection.) However, a statement that implies that personal religious belief is necessary to do each job in the company, such as “We will seek to know and do God’s will in all we do,” is not acceptable. If the company leader wants to make a personal statement of faith, as, for example in a document explaining why he founded the company, it should clearly be identified as the leader’s personal statement, not the company’s statement.
4. Hostile environment.
Recognize that if you’re successful in operating your company in a manner that welcomes people with religious faith, you may tend to attract religious employees and end up with a majority espousing a particular faith. Unwittingly, you may create what outsiders as a “Christian or Jewish, Muslim, etc. environment.” Atheists and persons of other religious faiths may perceive this as a hostile environment. The concepts applied to sexual harassment and other forms of discriminatory harassment (such as race, age, etc.) also apply to religion, and the Supreme Court has recently made clear that all forms of harassment will be judged by the same legal tests (modified as appropriate to fit the facts).
5. Training and prevention.
To defend a claim of harassment, it is necessary to show that the company took measures to prevent it. At a minimum, this includes training of supervisors on how to avoid committing unlawful harassment when discussing personal religious beliefs with employees, and dissemination of an anti-harassment policy and complaint procedure to all employees. Preferably, it includes training of all employees on the policy as well.
6. Anti-harassment policy.
Any employer needs an anti-harassment policy that covers all protected categories, including religion. The policy should include a prohibition of harassment, a complaint procedure that allows the complainant to bypass the direct supervisor, assurance of non-retaliation against complainants, and assurance that all complaints will be promptly investigated and appropriate action taken.
7. Workplace activities.
Company-sponsored or company-allowed religious studies or prayer groups in the workplace are not necessarily unlawful. However, a few important guidelines apply: • Make clear (preferably in writing) that attendance is not mandatory and has no effect, positive or negative, on an employee’s evaluation or prospects for advancement. Roll should not be taken or attendance noted. • It is preferable if top company management does not administer or lead the study, although the CEO may certainly be asked to speak on occasion. • Be aware that if the instrumentalities (e.g., bulletin board, e-mail) of the company are used to send notices, promote, or invite employees to the meeting, then the use of such instrumentalities for other purposes must also be allowed. • If other employee-led groups of a religious nature but espousing other religions ask for meeting space, etc., you may be required to furnish the same benefits to them. • Non-participation in the prayer time or religious studies should never be noted or remarked on by any member of management, and should not be a factor in considering work assignments or promotions. Care must be taken to overcome the inevitable assumption on the part of non-participants that others “get ahead” due to their participation.
If prayer at company meetings is routine, it should be made clear (preferably in writing) that employees required to be at the meeting may come in late, leave early, or otherwise choose not to participate in the prayer time. Also, persons with religious beliefs that prohibit them from being present during prayer must be accommodated.
E-mail, even if deleted, is routinely retrieved and often required to be produced in litigation. The same applies to voice mail and written communications. E-mail exchanges which you may consider to be “personal” with an employee on religious matters may well be considered business-related in a court case, and may be used to demonstrate management’s “discriminatory” or “hostile” attitude towards an employee not measuring up to someone’s perceived religious standards. Also, allowing the company’s e-mail and other communications to be used for notices related to religious activities may require that employees of other “religious” persuasions (see #1 above) also be allowed to do so.
The law requires reasonable accommodation of employees’ religious beliefs, observances and practices, such as time off for religious holidays, breaks for prayer, and the like. The test for determining what is reasonable depends on whether it creates an undue hardship on the company or other employees, which is not too difficult to meet under current law. However, if you allow greater accommodation than the law requires for one group, you will have to extend that level of accommodation to employees of other faiths as well. There is a pending bill to raise the threshold of accommodation the employer must meet. Consult your attorney to assist you in making these significant legal determinations.
Beyond that, perhaps all cooperative employers can do is hope that their own tolerance is reflected back into society at large.
In a move to protect their right to pursue individual and class action pay and promotion claims against Wal-Mart Stores, Inc., more than 500 former and current Wal-Mart women employees who had been part of a national class action lawsuit have filed a charge of discrimination against the retailer with the U.S. Equal Employment and Opportunity Commission (EEOC) as of Friday, Jan. 27.
That was the deadline for women in five states – Alabama, Arkansas, Georgia, Mississippi andNorth Carolina – to pursue their claims, according to plaintiffs’ attorneys Joseph Sellers, Cohen Milstein Sellers & Toll PLLC, and Brad Seligman, the Impact Fund, who represent the women. The vast majority of the EEOC charges – some 430 – were filed in those states since the June 2011 U.S. Supreme Court decision reversing a lower court ruling certifying class action against Wal-Mart. Women in all other states who previously filed class action claims against Wal-Mart, and its subsidiary Sam’s Club, have until May 25, 2012, to file a claim with the EEOC.
“The Supreme Court did not give Wal-Mart a free pass to discriminate. Filing an EEOC claim is one more way current and former women employees of Wal-Mart can assert their rights,” Sellers and Seligman said in a statement. More than 12,000 women have contacted plaintiffs’ counsel directly or through the informational website, www.walmartclass.com, to discuss pursuing claims of gender-based pay and promotion discrimination. Even in the five states with the Jan. 27, 2012, filing deadline, women with pay and promotion discrimination charges against Wal-Mart from July 2011-on can file EEOC claims against the company.
“These EEOC charges are just the down-payment—we expect to file thousands of additional charges by the May 25, 2012 deadline. We urge women throughout the country who feel they have been discriminated against by Wal-Mart in pay and promotions to log onto thewww.walmartclass.com site and register,” said Seligman.
Regional class action lawsuits on behalf of women plaintiffs who worked in California and Texas region Wal-Mart stores were filed in federal courts in those states in October 2011. An expanded class action was filed in Texas federal court in January 2012.
SOURCE Cohen Milstein Sellers & Toll PLLC and the Impact Fund
Blockbuster Inc. has agreed to pay more than $2 million to settle a lawsuit in which the Equal Employment Opportunity Commission accused the retailer of subjecting female employees to sexual harassment, the agency’s Baltimore office said Wednesday.
The EEOC had charged the Dallas-based entertainment retailer with subjecting the temporary workers to harassment, retaliating against them for resisting sexual advances and discriminating against Hispanic temporary workers. The events occurred in 2004 and 2005 in a Gaithersburg distribution center, the lawsuit said. Blockbuster representatives could not be reached Wednesday.
The lawsuit accused male supervisors at Blockbuster of participating in and condoning the harassment of seven female workers, including four Hispanic employees. Incidents included requests for sexual favors, yelling, insults, threats, unwelcome sex-related questioning, offensive racial remarks and other discriminatory behavior, the EEOC said. The conduct led to the employees’ being denied work hours, being fired or being forced to resign, the EEOC said. Blockbuster filed for bankruptcy while the case was pending and was acquired by Dish Network.