Have Faith in Your Discrimination Policies

By Kristin Casler featuring Christina Stoneburner, Fox Rothschild;

Peter Murphy, Shipman & Goodwin LLP --

Given the amount of time we spend on the job, it’s no surprise that our religious beliefs, or lack of them, make their way into the workplace. Yet, integration of work and faith is not always harmonious.

The Equal Employment Opportunity Commission received more than 3,500 religious-based discrimination claims in 2014, and employers paid approximately $8.9 million last year to resolve claims, not including litigation. Increasing religious diversity in the workplace should put employers on alert for issues that might impact productivity and the work environment, and generate complaints and even litigation.

Coming more and more to the forefront is the issue of religious accommodation. Christina A. Stoneburner, a partner at Fox Rothschild, said she encounters very few cases of outright religious discrimination—failure to hire or promote or improper conduct—based on faith. Instead, she receives several calls every week from employers asking about accommodations, for example, about granting Muslim workers breaks for prayer.

“They want to know whether they can grant them, how long they have to be, and whether they need to provide space,” she said. Some employees even request enough time to go to a mosque at prayer time.

“Many employers think that leave is not an appropriate accommodation request,” Stoneburner said, but added “leave, time off for religious holidays, breaks and modified schedules may all be reasonable accommodations depending on the circumstances.”

Justifying Accommodation Denials

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. It also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer.

Defending denial of an accommodation request can be difficult, Peter J. Murphy of Shipman & Goodwin. “Employers faced with a claim of religious discrimination under Title VII who refuse an accommodation request must be prepared to come forward with specific evidence demonstrating the ‘undue hardship’ that granting the request would cause. Conjecture and speculative ‘evidence’ of the purported undue hardship is not enough to establish a cognizable defense.”

Stoneburner said human resources personnel understand the issue. But front-line managers don’t see issues like prayer time, dress and personal appearance as needing accommodation. They often take a hard line on enforcing company policy. “Most front-line managers don’t know that they should send a request to HR. They can’t simply say ‘no’ to an accommodation request without further analysis,” she said.

“Most managers understand traditional anti-discrimination policies,” she continued. “They get frustrated with accommodation requests, worrying that they will have to grant them to every employee.”

In EEOC v. JBS USA, LLC, 8:10-CV-318 (D. Neb. Oct. 11, 2013), employer JBS won its argument against accommodation with facts and figures. In dismissing the EEOC’s case, Chief Judge Laurie Smith Camp determined that the requested accommodation by Muslim meat-plant workers for prayer breaks created more than a de minimis burden on the company and its non-Muslim employees. The Judge said workers who were not on break would have to work harder and at dangerous speeds; and longer breaks meant meat might have been exposed to excessive air or bacteria for prolonged periods.

Controlling Corporate Image

Company dress and grooming codes are another area where religious accommodation comes into play more frequently these days. Employers often establish a public image or “look” that leaves little room for flexibility. Some clothing stores require employees to wear attire from that store; others require uniforms. All of this benefits the company’s business. But without accommodation for religious beliefs, a discrimination claim may be just around the corner.

Potentially valid defenses include employee safety and cleanliness. A woman wearing a head scarf may not safely operate machinery in which it could be caught. Long facial hair may not meet food safety standards at a restaurant.

In 2013, the EEOC filed a federal lawsuit against a KFC franchise in North Carolina that terminated a woman who refused to wear pants in violation of her Pentecostal faith. In that case, the EEOC’s position was that “the employer did not have interactive discussions with the employee to determine whether her religious beliefs could be accommodated under its dress policy,” Murphy said.

To Ask or Not To Ask?

Federal and state laws make it illegal to base a hiring decision on someone’s religion. Employment lawyers have repeatedly told employers that during the hiring process they generally should not ask job applicants for information on several topics, including age, disability or religious affiliations. Nevertheless, The Huffington Post recently reported that Oprah Winfrey’s favorite curveball question to ask job applicants is, “What is your spiritual practice?” Murphy said that although “curveball” questions can add value to an interview, Oprah should find other curveballs and avoid questions that could lead to claims of religious discrimination by unsuccessful job candidates.

Supreme Court May Have an Answer

The issue of who has the burden of initiating the dialogue on religious accommodation is before the U.S. Supreme Court. The high court was scheduled to hear arguments at the end of February on a case from the Tenth Circuit U.S. Court of Appeals which concluded that Title VII only protects employees who provide “explicit notice of the need for a religious accommodation.”

In this case, a female wearing a hijab applied for a sales position with an Abercrombie & Fitch store and interviewed with the assistant manager. The assistant manager discussed some of the store’s personal appearance requirements for sales associates, but did not mention how the store’s “Look Policy” prohibited associates from wearing “caps,” nor did the applicant state any reason she could not comply with the “Look Policy.”

Before the interview, the applicant knew the store had some personal appearance standards, yet during the interview, according to the Tenth Circuit, she “never informed [the assistant manager] that she was Muslim, never brought up the subject of her headscarf, and never indicated that she wore the headscarf for religious reasons and that she felt obliged to do so, and thus would need an accommodation to address the conflict between her religious practice and Abercrombie’s clothing policy. Indeed, the topic of her headscarf never came up one way or the other.”

After speaking with several levels of supervisors, the assistant manager did not offer the applicant a position based in part on a determination that the hijab would violate the “Look Policy.” After learning from a friend of the reason why she did not get the position, the applicant sued. Analyzing the applicant’s failure to accommodate claim, the majority opinion noted that the employer was in the difficult position of not being able to ask about the applicant’s religion or even to make assumptions about her religion during the interview, yet also needing information about her religion and any related obligation concerning the hijab to discuss possible accommodations to the dress policy.

In granting summary judgment in favor of Abercrombie, the court concluded that in order to state a prima facie case of failure to accommodate, a plaintiff must establish that she initially informed the employer that she adheres to a particular practice for religious reasons, and that she needs an accommodation for that practice due to a conflict between the practice and the employer’s neutral work rule.

Murphy noted the dissent in the Tenth Circuit’s opinion found that Abercrombie was in the superior position—it knew of the dress code, and the applicant did not. Nor was she aware that her hijab would conflict with it. Although those are legitimate points, Murphy noted that, until the Supreme Court issues its decision later in 2015, the majority opinion is a good guidepost for employers facing similar situations. 

A Good Policy Can Go a Long Way

“Until further guidance is issued on this topic, employers should carefully review how their policies address apparent, yet unspoken conflicts between an applicant or employee and a dress code or personal appearance policy,” Murphy said.

Policy awareness is key for employers to smoothly handle religious accommodation, Stoneburner said. Company policy needs to be clear, and employees need to be made aware, usually through training, that they have the right to seek accommodations and that their request will be appropriately reviewed and discussed.

While employers remain free to establish dress codes or appearance standards that are appropriate for the nature of their business, they should be prepared to have good-faith discussions with employees who raise the need for accommodations to these policies.