August Brings More Decisions Relating to COVID Fallout.

Courts have continued this month to issue decisions relating to fallout from the COVID pandemic.  In one, the Sixth Circuit reversed an employer’s summary judgment on a Title VII religious discrimination claim alleging that the plaintiff had been fired for not conforming to the employer’s religious beliefs which were hostile to, among other things, his social distancing during the pandemic.  Amos v. LAMPO Group, LLC, No. 24-5011 (6^th Cir. Aug 6, 2024).  In another, the Sixth Circuit affirmed the continuation of a state law lawsuit where the plaintiff had been fired for refusing the COVID vaccine and rejected the employer’s argument that it was immune as a federal contractor because the government’s vaccine mandate was unlawful.  Riggs v. UCOR, LLC, No. 23-6116 (6^th Cir. Aug. 2, 2024).    Finally, the Ohio Supreme Court held that civil service employees were permitted to appeal whether their COVID furlough was a layoff governed by seniority rules.  Harmon v. Cincinnati, No. 2024-Ohio-2889.  “Common pleas court [was] not divested of jurisdiction to hear city employees’ administrative appeal regarding whether separation from employment under temporary emergency-leave program implemented in response to COVID-19 pandemic constituted a layoff.” The Court found that the bargaining agreement permitted civil service appeals and the civil service commission’s failure to conduct an evidentiary hearing when it should have done so did not destroy jurisdiction or render it a non-quasi-judicial matter.

In Amos, the plaintiff alleged that the defendant employer’s policy “was that prayer was the “exclusive way to prevent COVID infection,” and that anything else showed a “weakness of spirit” and was “against the will of God.”  . . . .  Employees that did take precautionary measures were “mocked and derided.” He also alleged that he “was criticized, specifically, for social distancing and wearing a mask.”  He followed “his own deeply held religious beliefs, including the “golden rule” of doing no harm to others and promoting the safety of his own family.”  Ultimately, he alleged that he was fired in July 2020 for “lack of humility” and because [he] “was not a good fit because he ‘would stand off to the side.”  He claimed “that his termination was based on his failure to submit to Lampo’s religious practices and his expression of his own religious beliefs with regard to COVID measures.”

While most religious discrimination claims are based on the employer’s failure to accommodate an employee’s beliefs, it is also true that religious nonconformity is covered because “Title VII “preclude[s] employers from discriminating against an employee because . . . the employee fails to comply with the employer’s religion.”

As with all other types of religious-discrimination claims, the employer is accused of discriminating against the employee on the basis of religion. Here, however, it is the employer’s religion that is the focus. But that doesn’t make the discrimination “reverse.” The employer is still the one allegedly doing the discriminating. The only difference is the alleged motivation—who holds the relevant religious beliefs. If anything, “reverse” might suggest—strangely—that it is the employee doing the discriminating. Accordingly, we will refer to this claim as one for “religious nonconformity.”

The trial court indicated that the plaintiff did not sufficiently allege that the employer failed to accommodate his own religious beliefs and dismissed his noncomformity claims as possibly unrelated to any particular religious belief and based simply on disdain.  The Court, however, found that he had sufficiently alleged a non-conformity claim.  He “provides sufficient facts to support a claim that [the employer] discriminated against him because he did not share [its] religious convictions, and so has met his burden.”

Moreover, the Court also concluded that he had sufficiently alleged that the employer had failed to reasonably accommodate his own religious beliefs.   He   “just need[s] to plausibly allege that [he was] denied a religious accommodation and treated differently because of [his] religion.” In particular, he alleged that the employer

violated Title VII . . . by refusing to respect and/or accommodate Plaintiff’s strongly held religious belief that ‘God helps those that help themselves,’” that he has “a deep religious devotion . . . to follow the ‘golden rule’ to do no harm to others,” and that “[the employer] terminated [him] for taking scientifically prescribed precautions, as required by his sincerely held religious beliefs.” . . . . In short, [he] pleads that his deeply held religious beliefs required him to take COVID precautions to avoid inflicting injury on others, as well as to protect his family—and that [the employer] did not allow him to do so and ultimately terminated him. This is a plausible claim, supported by specific factual allegations . . .

Finally, the Court rejected a distinction between religious beliefs and religious conduct.

Title VII defines “religion” as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate . . . [the] religious observance or practice without undue hardship on the conduct of the employer's business.”  . . . .  And the Supreme Court has explicitly denied attempts to create a distinction between religious belief and conduct in the Title VII context. . . . . Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.”

In Riggs, the employer was a federal contractor who was required by federal regulation to maintain a safe workplace.  Prior to the government requiring contractors and employers to mandate COVIC vaccines, the employer implemented such a policy.  The Court enjoined the government’s mandate on government contractors, but not OSHA’s similar requirement on employers. The plaintiff’s request for a religious accommodation was denied by the employer and she was fired in January 2022 for refusing to be vaccinated.  She filed suit under a state law that prohibited the termination of employees who refused to get vaccinated.  The employer claimed that it was immune from such suit because it was a federal contractor which was required to mandate the vaccination.

Federal contractors may assert derivative immunity as a defense where (1) the government “directed” the contractor to take the action for which the plaintiff seeks to hold it liable, and (2) the government’s direction was legally valid, meaning that federal law authorized the government to issue that directive.  

In this case, the employer could not assert that the government’s direction was legally valid.  The Court had already enjoined the contractor mandate and the Supreme Court later struck down the OSHA mandate.   Further, the employer had implemented its policy before either government mandate. “A contractual provision granting UCOR the discretion to choose which measures it felt were “reasonable” to protect the health of its employees does not amount to a command from the government that UCOR implement a Covid-vaccination policy.”

Finally, in Harmon, the employees challenged the City’s Temporary Emergency Leave policy, which was implemented because of the (correctly) anticipated reduction in tax revenues and increased expenses being caused by the COVID pandemic and shutdown.  The employees alleged that it violated the City’s Civil Service rules governing layoffs.  After appearing before the City Civil Service Commission, the Commission ruled that the TEL was not a layoff and that the employees were not entitled to an evidentiary hearing as to whether the TEL was a layoff.  The employees appealed and the court reversed.  The City then appealed, arguing that the employees’ claims should be submitted to mandatory arbitration under their collective bargaining agreement and the Commission is entitled to interpret its own rules, but the appellate court affirmed.  The Supreme Court likewise affirmed.

The Court rejected the argument that the appeal was preempted by the CBA because it explicitly permitted employees to appeal layoffs to the Commission.  Arbitration was not mandatory in such cases.

The City also argued that only Commission decisions which result from quasi-judicial proceedings are appealable and a mere “appearance” before the Commission does not satisfy that requirement. “A quasi-judicial proceeding is a proceeding that requires notice, a hearing, and the opportunity to introduce evidence.”  The Court found that this is a question of law:

“Whether there is an adjudication depends not upon what the administrative agency actually did, but rather upon what the administrative agency should have done. Where the administrative agency should have given notice, conducted a hearing and afforded the parties an opportunity to be heard and to introduce evidence, the order is the result of an adjudication even if the administrative agency fails to afford such notice and hearing.”

 . . . .

Just as it did below, the city’s arguments here rest on the fact that the commission determined that a full hearing was unnecessary because, in its view, the TEL program was not a layoff. We conclude that the commission exercised its discretion in deciding that the program was not a layoff, rendering the appearance a quasi-judicial proceeding.  . . . . . And while the commission did not follow the requirements under Cincinnati Civil Service R. 17 for conducting a hearing, it was required to do so.

 . . . . Because there was some doubt regarding whether the program was a layoff, the commission should have proceeded with a hearing to allow the parties to argue their positions. As the First District noted, “[t]he commission may not abandon its own rules and sua sponte decide that the leave under the TEL program was not a layoff prior to holding a hearing on that issue.” 2023-Ohio-788 at ¶ 19. If the commission had conducted a hearing, there would have been no doubt that the common pleas court had jurisdiction over Harmon and Beasley’s appeal, and a hearing would have provided greater insight and detail into the matter for the court to consider in making its decision. Regardless, because the commission’s decision was the result of a quasi-judicial proceeding, the common pleas court had subject-matter jurisdiction to review the decision on administrative appeal and to ultimately remand the matter to the commission for a hearing.

In short, “[t]he commission was required to conduct a hearing on [their] appeals. Since the commission should have conducted a hearing, its failure to do so rendered its decision the result of a quasi-judicial proceeding and [they] were thus permitted to appeal the commission’s decision to the court of common pleas under R.C. 2506.01(A).”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Finds Violation of Free Exercise Clause Based on Direct Evidence and Disparate Treatment, but Does Not Define the Limits

As widely covered in the media, the Supreme Court decided with a healthy 7-2 majority that a baker’s sincerely held religious views were improperly censored by a local civil rights commission in violation of the First Amendment’s Free Exercise Clause when the commission concluded that the baker had unlawfully discriminated on the basis of sexual orientation in refusing to create and sell wedding cakes to same-sex couples on the grounds that he did not want to endorse behavior that violated his conscience and that gay marriage was then illegal in Colorado.  Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission, No. 16-111 (6-3-18).  The Court did not address whether the baker was entitled to live his life and conduct his sole proprietor business according to his conscience, but found that he had been discriminated against by the government agency which was so blinded by its pursuit of justice for the same-sex couple that it forgot that the baker has civil rights, too.    The Court was sympathetic that his refusal took place before same sex marriage was even legal in Colorado and before the Court itself upheld the right of same sex couples to marry.  It was also influenced by evidence that he was willing to sell other baked goods, just not wedding cakes.   The more problematic issue was that the government absolved other bakers of religious discrimination when they refused to create and bake cakes with homophobic or anti-gay marriage themes (with religious quotes presumably about marriage) and that one of the government officials disparaged and equated the baker’s sincere convictions and conscience with slavery and the holocaust.  Above all things, a government must remain neutral in matters of religion, view point and conscience, and that was entirely missing in this case as government officials wanted to publicize their distaste for the baker’s convictions: “[T]he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.”

According to the Court’s opinion several of the commissioners were openly hostile to religion and religious dissenters (notwithstanding that several of the initial 13 colonies were initially settled by and because of religious dissent):

At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.”

                Another of the commissioners went even further:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The Court observed that the tension between the first amendment and civil rights statutes has been and will remain a difficult issue to resolve, not just for bakers, but for other artists and sole proprietors. It recognized that exceptions will have to be made, but also made clear that those exceptions cannot be too broad without violating the rights of gay citizens:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.  This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

There were a number of concurring opinions. The justices did not agree about the relevance of the other bakers who refused to create and sell cakes which they found personally offensive according to their own conscience.  Some saw their different treatment by the civil rights commission as discriminatory, while others did not.  Justice Kagan submitted that making a special cake that disparages gay marriage is so unique that it cannot be compared to a “regular” wedding cake that the baker refused to sell.  She distinguished it from Justice Gorsuch’s view that the “regular” wedding cake was a special cake to celebrate a same-sex marriage.  She joined the majority opinion not because she felt that the other bakers should not have been treated differently, but because of the reasoning of the state agency reflected improper hostility towards religion.  Justice Kennedy’s majority opinion described it as follows:

Another indication of hostility is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.

The Commission had found the cake texts to be derogatory and hateful, giving those bakers the right to legally refuse to create and bake those cakes.

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection.  The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker.  Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.  Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers.  But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished.  In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.

                 . . . .

 . . .A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.  Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.

                 . . . .

                The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures  . . . . “

                 . . . It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience based objection is legitimate or illegitimate.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Litigation Snares Two Nearby Employers

Last week, the EEOC announced a settlement and one court verdict involving two different nearby employers.  One involved an employee’s religious objections to having his hand biometrically scanned as part of a new payroll system and an award against that employer for more than $585,000 in compensatory damages, lost wages and benefits.  The other involved an $80,000 settlement of an EEOC lawsuit alleging a racially hostile work environment by a Chagrin Falls, Ohio employer. 

In the first case, the EEOC brought suit against a coal company and its parent alleging that a long-time employee had been forced to resign because the employer refused to accommodate his religious beliefs.  In particular, the employee believed that the employer’s new biometric hand scanners – which had been implemented to track employee attendance – constituted the mark of the beast (i.e., the antichrist).  He objected to being subjected to the technology and notified the employer on a number of occasions.  The employer refused to accommodate his religious beliefs and informed him that he would be disciplined and terminated if he refused to scan his hand.    The EEOC alleged that the employee was forced to retire due to the employer’s refusal to accommodate his religious beliefs.

In January, a federal court jury in West Virginia found that the employer violated the employee’s religious beliefs and awarded the employee $150,000 in compensatory damages.  Last month, the federal judge awarded an additional $436,860 in back pay, and front pay.  The Court also enjoined the employer for three years from denying religious objections to the biometric hand scanner and required them to be trained about religious accommodations.

The other case involves allegations of offensive language by the general manager towards African-American employees and less favorable treatment (such as less frequent breaks than white employees).    The EEOC complaint also alleged that an African American supervisor was subjected to a racially and sexually hostile work environment and retaliation when she opposed the mistreatment.  The settlement provides $44,500 to the supervisor and $35,000 to the remaining employees.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Divided Sixth Circuit Reverses Employer’s Summary Judgment on Religious Accommodation of Sabbath Observance

Yesterday, a divided panel of judges from the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on a religious discrimination claim. Crider v. Univ. of Tennessee, Knoxville, No. 11-5511 (6th Cir. July 23, 2012). In that case, the overseas education department required one of the three Programs Abroad Coordinators to always (i.e., 24-7) carry the emergency cell phone in case a student experienced an emergency overseas. This responsibility was rotated among the Coordinators and prevented them from leaving town (and ready access to student records) during their rotation. Four days after being hired as a Coordinator, the plaintiff informed her manager that she was a Seventh Day Adventist and could not carry the emergency phones from sundown Friday to sundown Saturday. The other two Coordinators refused to voluntarily assume permanent responsibility to carry the emergency phone every other weekend because it prevented them from leaving town for pleasure or family reasons. One of them even threatened to resign. The University did not find any of the other proposed accommodations to be reasonable and ultimately terminated the plaintiff’s employment because she refused to perform one of the essential functions of her job. The Court’s majority found that the University was not entitled to respect the “grumblings” of the other Coordinators and should have given preference to the plaintiff’s religious objections over the co-workers’ rights to not share those beliefs.  It limited the Supreme Court’s Hardison decision to a collectively bargained seniority system. “Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation “without undue hardship on the conduct of the employer’s business.” (emphasis in original).”

The plaintiff argued that the University rejected her proposal of a voluntary shift exchange and then failed to suggest its own alternative and frustrated her efforts to obtain her co-worker’s cooperation. The University suggested that she agree to carry the emergency pagers on Saturdays when her co-workers were out of town or if an emergency arose.

“The obligation to accommodate includes efforts to accommodate those employees who refuse to work on particular days of the week because of their religious beliefs.” Id. Reasonable accommodations for religious convictions may include unobjectionable shift exchanges, see id. at 1088, or a transfer to another position which preferably does not adversely affect the employee. . .

Offering [the plaintiff] fewer Saturday shifts is not a reasonable accommodation to religious beliefs which prohibit working on Saturdays.

. . .

Aptly stated by the Third Circuit, a Saturday Sabbatarian’s request for every Saturday off of work due to their religious needs is not per se unreasonable and “[t]o interpret Title VIII in this fashion would effectively remove from the statute’s protection all employees who subscribe to religions with strict prohibitions against Sabbath labor.”

The Court rejected the concept that an employer could prove that a requested accommodation imposed an undue hardship based only on the objections of co-workers to working the unfavorable weekend shift. The district court had relied on Hardison in concluding that the University would incur an undue hardship if it were required to force the plaintiff’s co-workers to resume responsibility of carrying the emergency phone every other weekend. “In reaching this determination, the district court emphasized Hardison’s rejection of the notion that an employer may deprive one employee of their shift choice in order to allow another employee to observe their Sabbath” because Title VII protects the co-workers from discrimination based on the plaintiff’s religious needs. In short, Hardison suggests that “reasonable accommodations are not reasonable when they would result in unequal treatment of employees on the basis of religion.” Nonetheless, the Court felt there was a material issue of disputed fact in this case.

This Court has held that “objections and complaints of fellow employees, in and of themselves, do not constitute undue hardship in the conduct of an employer’s business,” noting that “undue hardship is something greater than hardship, and an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.”

. . .

Thus, Hardison does not stand for the proposition that employee dissatisfaction or inconvenience alone creates an undue hardship; rather, it is the effect such dissatisfaction has on the employer’s ability to operate its business that may alleviate the duty to accommodate.

As interpreted by the majority, the Hardison “Court found that requiring TWA to breach the contractual rights of its employees by abandoning the seniority system established by a collective bargaining agreement, or to replace Hardison with employees who required premium wages, went too far and created an undue hardship on TWA.” Title VII itself provided special treatment for seniority systems and the Hardison Court did not want to deprive Hardison’s co-workers of contractually bargained rights. “Requiring TWA to breach provisions of a collective bargaining agreement and risk the union or other employees filing suit is surely more than a de minimis cost.”

The University, like the Fifth Circuit, argued that the plaintiff’s reliance on Draper v. Unites States Pipe and Foundry Co., 527 F.2d 515, 519-520 (6th Cir. 1975) – which required employers to force co-workers to accept unfavorable shifts in order to accommodate a religious belief -- was outdated in that Hardison was decided later in 1977. The majority, however, found it remained good law because Hardison did not explicitly overrule it.

We stop short of holding that an employee requesting religious accommodation can never be treated differently. The very nature of this type of accommodation requires that, where an employer operates its business on Saturdays, a Saturday Sabbatarian’s accommodation will require another employee to work a Saturday shift. Thus, where an employer is able to reasonably accommodate this religious request, it is essentially treating employees differently on the basis of religion as contemplated by the Act.

Moreover, the majority conceded that “[i]t is conceivable that employee morale problems could become so acute that they would constitute undue hardship” and that such discontent can lead to “chaotic personnel problems” which would constitute an undue hardship to accommodate a religious belief. While it observed that the co-worker’s threat to quit could create a “chaotic personnel problem” with only one employee left to carry the emergency phone on Saturdays, it concluded that in this case, the there was insufficient evidence that the employee’s threat was more than mere “grumbling.” (The Court makes no effort to explain what would have been enough proof – such as a written two-week notice of resignation).

Finally, the majority found summary judgment to be inappropriate because the manager had told employees not to do anything differently despite the plaintiff’s request for accommodation.

Even if [the manager] was simply trying to assess the situation before [the co-worker’s] agreed, [the manager’s] words could be construed as instructing [the co-workers] not to accept the shift exchange. Viewing the evidence in the light most favorable to [the plaintiff], we find that she has raised a genuine issue as to whether [the employer] frustrated, inhibited, or impeded her efforts at obtaining such an accommodation.

In contrast, the dissenting judge found that:

“the mere possibility of an adverse impact on co-workers . . . is sufficient to constitute an undue hardship.” Virts v. Consol Freightways Corp., 285 F.3d 508, 520-21 (6th Cir. 2002) (applying Hardison). Further, an employer’s neutral decisions, such as shift scheduling, are protected under Title VII. Id. at 82. This is true even if such decisions result in “discriminatory consequences.” Id. at 82.

The dissent also found that the majority’s decision forces discrimination upon the co-workers based on their lack of similar religious beliefs. The dissent also rejected the argument that the employer’s preference to maintain the status quo while it considered to the accommodation request had interfered with the plaintiff’s request because the co-workers had never agreed to swap shifts with her and was irrelevant to whether the request was unreasonable.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Issues New Guidance on Religious Discrimination and Accommodation in the Workplace.

Noting that the number of religious discrimination charges had more than doubled between 1992 and 2007, yesterday the EEOC issued new compliance guidance to employers about workplace discrimination on the basis of religion. This new guidance involved a new section for the EEOC compliance manual, a Q&A for employers of common issues and a manual of best practices. Among other things, the guidance addresses an employer’s options when an employee proselytizes at work and/or objects to performing a job duty – such as providing birth control – because of religious beliefs. It also addresses potential First Amendment concerns and what constitutes "undue hardship" for purposes of denying a requested accommodation.

“Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. . . . Religion includes not only traditional religions like “Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Some courts have held that Title VII also protect members of the wiccan faith. Nonetheless, “mere personal preferences are not religious beliefs.”

“The prohibition against disparate treatment based on religion also applies to disparate treatment of religious expression in the workplace. For example, if an employer allowed one secretary to display a Bible on her desk at work while telling another secretary in the same workplace to put the Quran on his desk out of view because co-workers “will think you are making a political statement, and with everything going on in the world right now we don’t need that around here,” this would be differential treatment in violation of Title VII.”

Once an employer is on notice that a religious accommodation is needed, Title VII requires the employer “to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden. Note that this is a lower standard for an employer to meet than undue hardship under the Americans with Disabilities Act (ADA) which is defined in that statute as “significant difficulty or expense.”

For instance, a “government employer may contend that granting a requested religious accommodation would pose an undue hardship because it would constitute government endorsement of religion in violation of the Establishment Clause of the First Amendment.”

“An accommodation would also pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.”

“Although religious accommodations that infringe on co-workers’ ability to perform their duties or subject co-workers to a hostile work environment will generally constitute undue hardship, general disgruntlement, resentment, or jealousy of co-workers will not. Undue hardship requires more than proof that some co-workers complained; a showing of undue hardship based on co-worker interests generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work. If an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations."

“Title VII requires employers to accommodate only those religious beliefs that are religious and “sincerely held,” and that can be accommodated without an undue hardship. Although there is usually no reason to question whether the practice at issue is religious or sincerely held, if the employer has a bona fide doubt about the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for the accommodation. Factors that – either alone or in combination – might undermine an employee’s assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. However, none of these factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.”

There are a variety of methods to provide reasonable accommodations to its employees, including: changing work schedules, permitting voluntary shift swapping, changing an employee’s job tasks or providing a lateral transfer; making an exception to dress and grooming rules to permit religious clothing or beards, etc.; permitting the use of the work facility for a religious observance (like prayers); accommodating religious objections to the payment of union dues or agency fees through donations to charities; and accommodating prayer, proselytizing, and other forms of religious expression among non-objecting co-workers.

“Some employees may seek to display religious icons or messages at their work stations. Others may seek to proselytize by engaging in one-on-one discussions regarding religious beliefs, distributing literature, or using a particular religious phrase when greeting others. Still others may seek to engage in prayer at their work stations or to use other areas of the workplace for either individual or group prayer or study. In some of these situations, an employee might request accommodation in advance to permit such religious expression. In other situations, the employer will not learn of the situation or be called upon to consider any action unless it receives complaints about the religious expression from either other employees or customers. “

According to the EEOC, “employers should not try to suppress all religious expression in the workplace. Title VII requires that employers accommodate an employee’s sincerely held religious belief in engaging in religious expression in the workplace to the extent that they can do so without undue hardship on the operation of the business. In determining whether permitting an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, relevant considerations may include the effect such expression has on co-workers, customers, or business operations.”

For example, “if an employee’s proselytizing interfered with work, the employer would not have to allow it. Similarly, if an employee complained about proselytizing by a co-worker, the employer can require that the proselytizing to the complaining employee cease. Moreover, if an employee was proselytizing an employer’s customers or clients in a manner that disrupted business, or that could be mistaken as the employer’s own message, the employer would not have to allow it. Where the religiously oriented expression is limited to use of a phrase or greeting, it is more difficult for the employer to demonstrate undue hardship. On the other hand, if the expression is in the manner of individualized, specific proselytizing, an employer is far more likely to be able to demonstrate that it would constitute an undue hardship to accommodate an employee’s religious expression, regardless of the length or nature of the business interaction. An employer can restrict religious expression where it would cause customers or co-workers reasonably to perceive the materials to express the employer’s own message, or where the item or message in question is harassing or otherwise disruptive.”

When an employee objects to a particular job duty or task (such as providing birth control or the “morning after pill” or singing “happy birthday”) on the basis of a religious belief, the employer should consider “appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict. Whether such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a CBA or seniority system. The employee should be accommodated in his or her current position if doing so does not pose an undue hardship. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. “ By way of example, the EEOC described the following situations:

1) “Kim, a server at a restaurant, informed her manager that she would not be able to join other waitresses in singing “Happy Birthday” to customers because she is a Jehovah’s Witness whose religious beliefs do not allow her to celebrate holidays, including birthdays. There were enough servers on duty at any given time to perform this singing without affecting service.” If the manager refuses any accommodation to Kim, she would likely prevail in a Title VII action “because the restaurant could have accommodated her with little or no expense or disruption.”

2) “Neil, a pharmacist, was hired by a large corporation that operates numerous large pharmacies at which more than one pharmacist is on duty during all hours of operation. Neil informed his employer that he refused on religious grounds to participate in distributing contraceptives or answering any customer inquiries about contraceptives. The employer reasonably accommodated Neil by offering to allow Neil to signal to a co-worker who would take over servicing any customer who telephoned, faxed, or came to the pharmacy regarding contraceptives.”

3) Alternatively, if instead, “Neil leaves on hold indefinitely those who call on the phone about a contraceptive rather than transferring their calls, and walks away from in-store customers who seek to fill a contraceptive prescription rather than signaling a co-worker. The employer is not required to accommodate Neil’s request to remain in such a position yet avoid all situations where he might even briefly interact with customers who have requested contraceptives, or to accommodate a disruption of business operations. The employer may discipline or terminate Neil for not meeting legitimate expectations.”

“The employee should be accommodated in his or her current position if doing so does not pose an undue hardship. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. For example, if a pharmacist who has a religious objection to dispensing contraceptives can be accommodated without undue hardship by allowing the pharmacist to signal a co-worker to assist customers with such prescriptions, the employer cannot choose instead to accommodate by transferring the pharmacist to a different position. Moreover, if the pharmacist cannot be accommodated within his position, the employer cannot transfer the pharmacist to a position that entails less pay, responsibility, or opportunity for advancement unless a lateral transfer is unavailable or would otherwise pose an undue hardship.

Insomniacs can read the EEOC press release in full at http://www.eeoc.gov/press/7-22-08.html and the other EEOC materials on religious discrimination in full at http://www.eeoc.gov/policy/docs/qanda_religion.html and http://www.eeoc.gov/policy/docs/religion.html and http://www.eeoc.gov/policy/docs/best_practices_religion.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.