Recently, the EEOC has filed a lawsuit for religious discrimination against Food Lion, LLC (“Food Lion). While there are multiple types of religious discrimination, the lawsuit against Food Lion focuses on the failure of Food Lion to provide a “reasonable accommodation” based upon a sincerely held religious belief. This is often the form that religious discrimination takes in the workplace. In the recent lawsuit, the sincerely held religious belief was that of a Jehovah’s Witness. Victaurius Bailey (“Mr. Bailey”) was hired as a meat cutter at Food Lion on June 6, 2011. Mr. Bailey was also a Jehovah’s Witness minister and elder. According to Mr. Bailey, as a component of his faith, he was required to attend church services every Sunday and Thursday evening. Apparently, this fact was known when Mr. Bailey was hired as he disclosed the situation and requested an accommodation. Mr. Bailey’s store manager, at hire, agreed to accommodate his request. However, very shortly after his hire, Mr. Bailey was transferred to another Food Lion location. The store manager at the second location told Mr. Bailey that if he could not work on Sundays then he could not work for Food Lion. Mr. Bailey was terminated on June 27, 2011 because he was unavailable to work on Sundays. http://www.eeoc.gov/eeoc/newsroom/release/8-20-14a.cfm
While this matter is far from being resolved and must, first, work its way through the court system, it has piqued my curiosity regarding religious discrimination in the workplace. As an employment attorney, I can assert that very few cases that I see involve religious discrimination in the workplace. In fact, for many years religious discrimination seemed to be an afterthought to the anti-discrimination statutes and did not garner as much attention as some of the more typical protected classes. Why is this? My guess is that religious discrimination has been viewed as unchartered and unknown territory. While state and federal law makes clear that you cannot discriminate against a person based on their religious belief, the U.S. Constitution also has something to say about religion. Both the “anti-establishment” and “free expression” clauses of the First Amendment complicate the issue. When does one person’s free expression/exercise of their religion constitute discrimination against another?
However, the U.S. Equal Employment Opportunity Commission (“EEOC”) is beginning to give more attention to religious discrimination in the workplace. Statistics show that in EEOC filings, religious discrimination charges have more than doubled since 1997. Accordingly, employers must be aware of what they are permitted to do and not permitted to do, as it pertains to religion in the workplace. Otherwise, employers will find themselves at odds with the EEOC, which is not a comfortable place to be.
What is religious discrimination? Religious discrimination involves treating an applicant or employee unfavorably because of his or her religious beliefs or those of a person that the applicant or employee is associated with. Essentially, a person’s religion cannot be the basis of any employment decision, i.e., hiring, termination, compensation, promotions, job assignment, etc. Further, the prohibition against religious discrimination applies to both commonly understood and recognized religions as well as those that people are much less familiar with. The only qualification is that the religious belief be sincerely held. It is, also, not relevant if a belief or practice is newly adopted by an employee. The rules apply to the sincerely unreligious as well, as long as these views relate to “what is right or wrong that are sincerely held with the strength of traditional views.” http://www.washingtonpost.com/national/religion/eeoc-details-employer-rules-as-religious-worker-complaints-rise/2014/03/06/11c0e2c2-a58a-11e3-b865-38b254d92063_story.html
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. prohibits the following actions, among other things:
- Disparate treatment based on religious affiliation
- Denial of reasonable accommodation
- Workplace job segregation
- Workplace harassment based on religion
- Retaliation for requesting an accommodation
While some of the prohibitions seem self-explanatory, a little more detail is required to fully understand others. Probably one of the most common areas of religious discrimination, in the workplace, is the denial of a reasonable request for religious accommodation. Food Lion is finding themselves in a lawsuit because of its refusal to accommodate Mr. Bailey’s request for accommodation. Common among these types of cases is an employer’s refusal to allow an employee’s particular dress and/or grooming practices that are a part of that employee’s religious beliefs. The EEOC has recently filed suit against an Alabama nursing home for refusing to allow a Muslim employee to wear a hijab. The employer, in that situation, refused the employee’s request for a reasonable accommodation, leading the employee to file a charge with the EEOC. http://www1.eeoc.gov/eeoc/newsroom/release/7-7-14.cfm. Assuming that the reasonable accommodation does not place an undue hardship on the employer, a person’s religious beliefs and customs must been respected.
As is evident in the case involving the Muslim employee’s request to wear the hijab, some religious customs and/or traditions make it clear that a person is a member of a particular religion. However, employers cannot engage in workplace job segregation on the basis of religion. Sometimes employers think that they can place an employee “in the back” and away from customers because to do otherwise would make the customers uncomfortable. However, if an employer takes an action based on the discriminatory religious practices of others, including, customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.
Employers need to be very careful when it comes to the sincerely held religious beliefs of their employees. Because of the diversity among religions, more and more people are beginning to affiliate themselves with various religions. Likewise, when discussing religion, people, understandably, become very passionate. If they believe that their sincerely held religious belief is being belittled or ignored, they will become vocal regarding the violation of their rights. Vocal employees visit the EEOC. EMPLOYERS BEWARE!
As with any rule, there are exceptions.
Please seek professional assistance with any questions or specific situations.
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