1/31/2014. Federal Law. Washington Law. Religion Accommodations in the Workplace

Transcription

1 Religion Accommodations in the Workplace Faye Chess, J.D. Executive Director of HR and General Counsel Tukwila School District Federal Law Title VII prohibits employers with at least 15 employees, as well as employment agencies and unions, from discriminating in employment based on race, color, religion, sex, and national original. Washington Law Under WA state law, it is illegal to fire or refuse to hire someone based on their creed, defined as a system of religious beliefs. In Short v. Battle Ground, Court of Appeal ruled that Washington Law Against Discrimination (WLAD) does not require employers to accommodate religious practices. (2012) In Oct. 2013, WA Supreme Court heard a case involving the issue of whether WA employers are required to accommodate religious practices under WLAD. Employees of a Sea-Tac Airport firm filed a lawsuit against their employer over claims that their work meals were not properly labeled to identify religiously mandated taboo foods. 1

2 Definition of Religion Under Title VII, religion is defined very broadly. It includes all aspects of religion belief, practice, and observance. Examples of Traditional Organized Religions Christianity Judaism Buddhism Islamic Seventh Day of Adventist Jehovah Witness Hinduism Religious Beliefs New Uncommon Ultimate ideas about life, purpose, and death Not affiliated with a formal church or sect Small membership Not mainstream to others in the community Doesn t have to be espoused or recognized by the affiliated religious group Professes no religious beliefs/atheist Typically doesn t apply to political, economic, social beliefs or practice 2

3 Religious Observances or Practices Praying Wearing religious clothing or symbols Attending worship services Displaying religious items Proselytizing and/or other religion expressions Dietary Rules Declining to participate in certain activities Types of Discrimination and Harassment Failure to hire Denying a promotion Termination Pay Job Assignments Promotions Layoff Training Fringe benefits and other term or condition of employment. Failure to accommodate a request Severe insults or threats Workplace or job segregation Dress & Grooming Policies Religious Harassment 1. Quid Pro Quo In order to be employed, the person is required or coerced to abandon, alter, or adopt a religious practice or belief. Or 2. Hostile Work Environment - Any harassing or UNWELCOME acts or statements to another person on the basis of religion. The conduct must be severe or pervasive. The reasonable person standard. 3

4 Compliance Demonstrate reasonable care to prevent and correct harassing behavior. and Employee unreasonably fails to take advantage of the employer s efforts to prevent or corrective harassment or to avoid harm. Liability Knew or should have known about the harassment in the workplace Failed to take immediate and proper corrective action Failed to control and/or protect harassment towards employees by non-employees Reasonable Accommodation Title VII requires employers to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship. 4

5 Accommodation Process Only have to accommodate religious beliefs that are sincerely held and are religious and does not impose an undue hardship* Employee or applicant must request the accommodation Request must be clear that it is due to a conflict between work and religion Interactive Process. There should be cooperation between the parties and flexibility in searching for a reasonable accommodation Not require to provide an accommodation that would violate a seniority system or CBA (collective bargaining agreement) * Sincerely held standard doesn t apply to disparate treatment or harassment. Undue Hardship Must show the proposed accommodation poses more than de minimis cost or burden Lower standard than the undue hardship standard under the ADA which is significant difficult or expensive Considerations: Cost of the accommodation on the employer s operating budget. The requesting employee s job duties. Number of employees who need the same accommodation. The nature of the workplace. Request infringes on the rights of co-workers or disruptive to the work environment. Safety in the workplace. Conflicts with another law or regulation. Types of Accommodations Change to the work schedule Granting an exception to policies, practices, and procedures such as the employer s dress code and grooming policies Granting unpaid/paid leave to attend religious ceremony Not working on a day of observance Use of an area in the workplace for prayer Union dues paid to a charity Permitting prayer, proselytizing, or other religious expression Co-workers volunteer to substitute or swap shifts and/or assignments Change in job assignment or later transfer 5

6 Retaliation Retaliation is strictly prohibited! Anyone involved in filing, opposing, and reporting acts of religious discrimination or who is involved in testifying, assisting, or participating in an investigation, hearing, or proceeding under Title VII is protected. Reporting Employees and/or witnesses must report inappropriate conduct to their management or HR per employer s policy Job Applicants and/or witnesses should report inappropriate conduct to company officials Document and report the 5 w who, what, when, where, and witnesses Court Cases The termination of a Seventh Day Adventist who was unwilling to work on Saturday was upheld because designating Saturday as one of his scheduled days off would have violated the collective bargaining agreement as would allowing him to use accrued leave or paid leave because employees with seniority would have had to give up their Saturdays off. Harrell v. Donahue, _ F.3d_, 111 FEP 1559 (8 th Cir. 2011) A Rastafarian security guard applicant who refused to cut his dreadlocks because it was against his belief did not sufficiently inform the employer that it was a religious belief. It is Rastafarians belief that dreadlocks symbolize a bond with God. Most people are not familiar with this religious order so simply stating it was against my belief was insufficient to put the employer on notice that the applicant was requesting a religious accommodation. Xodus v. Wackenhut Corp., 619 F.3d 683, 110 FEP 1 (7 th Cir. Aug. 27, 2010) Allowing a Muslim policewoman to wear head scarf was considered an undue burden on a police department which required disciplined rank and file for efficient conduct of its affair. Allowing the employee to wear the head scarf would impact the perception of the department s impartiality with respect to all religions and races. Webb v. City of Phila, 562 F.3 rd 256, 105 FEP 1729 (8 th Cir. 2010) 6

7 Court Cases (con t) An African- American teacher assistant was fired for wearing berets and African-style head wraps. Court dismissed the case because the teacher assistant failed to establish a connection with her dress and religion, only that her clothing reflected her culture and heritage. McGlothin v. Jackson Municipal Separate School District., 829 F. Supp. 853 (S.D. Miss. 1992) Conviction against working on Sunday was held to be a religious belief or practice protected by Title VII; Thomas v. Review Board of the Indiana Employment Security Division, 405 U.S. 707 (1981) Employer could impose a no beard policy where employees are required to wear respirators. Bhatia v. Chevron U.S.A., Inc. 734 F.2d 1382 (9 th Cir. 1984) Allowing an exception to the employer s no facial piercing policy to accommodate a member of the Church of Body Modification adversely affect the employer s public image, therefore was considered an undue hardship on the employer. Cloutier v. Costco Wholesale Corp., 390 F.2d 126 (1 st Cir. 2004) Allowing employees to express religious views in the workplace can be disruptive in the workplace among employees of different faiths. Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183 (1 st Cir. 2003) Questions Any questions? Please do your part to ensure that the workplace is free from harassment. Remember that the accommodation process is interactive. Have a great day! 7