Transcript Chapter 11

Chapter 11
Religious
Discrimination
McGraw-Hill/Irwin
Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.
Learning Objectives
 Discuss the background of religious
discrimination and give some contemporary
issues
 Give Title VII’s definition of religion for
discrimination purposes
 Explain religious conflicts under Title VII and
give examples
 Define religious accommodation and guidelines
to its usage
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Learning Objectives
 Define undue hardship as it allows an employer
defense to religious discrimination claims
 Describe religious harassment and give
examples
 Identify the ways in which unions and religious
conflicts occur
 List some ways in which management can avoid
religious discrimination conflicts
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This is Not Your Forefather’s Religious
Discrimination
 Henry VIII’s break from the Catholic Church and
it’s aftermath
 The U.S. Constitution
 Freedom of religion
 Title VII prohibits discrimination in employment
based on religion
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This is Not Your Forefather’s Religious
Discrimination
 Small number of EEOC claims
 On the rise since 1993
 Spike after September 11, 2001
 Increase in litigation in the 1980s and early
1990s
 Fundamentalist Christianity and televangelism
 Sharing their faith
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This is Not Your Forefather’s Religious
Discrimination
 Current issues have extended to those
surrounding Middle Eastern religions
 Practices and dictates conflicting with work
environment
 Title VII is the only legislation specifically
prohibiting religious discrimination in
employment
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This is Not Your Forefather’s Religious
Discrimination
 Federal and constitutional guarantees for
federal, state, and local government employees
 Due process
 Equal protection
 Freedom of religion
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This is Not Your Forefather’s Religious
Discrimination
 Duty to reasonably accommodate: The
employer’s Title VII duty to try to find a way to
avoid conflict between workplace policies and an
employee’s religious practices or beliefs
 Undue hardship: Burden imposed on employer,
by accommodating employee’s religious conflict,
that would be too onerous for employer to bear
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This is Not Your Forefather’s Religious
Discrimination
 Religion is recognized as a basis for BFOQ
 Specific facts play an important role in making the
determination
 Current basis for lawsuits – Conflict of religious
practice and workplace policies
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Major Religions of the World—Ranked by
Number of Adherents
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Major Religions in the U.S.
Top Organized Religions
Christianity
76.5%
Judaism
1.3
Islam
0.5
Buddhism
0.5
Hinduism
0.4
Unitarian Universalist
0.3
Wiccan/Pagan/Druid
0.1
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What is Religion?
 Accommodation considerations when the
religion is unknown
 Is the belief closely held?
 Does it take the place of religion in the employee’s
life?
 Atheism also considered a religion under Title VII
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What is Religion?
 Employer duty to accommodate
 Attaches to the conflict itself, not to when the conflict
arises
 Applies to religious practices, not religious belief
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Religious Conflicts
 An employee engaging in some religious
practice that is not perceived to be compatible
with the workplace
 Sometimes the conflict is with the employer’s
religion
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Religious Conflicts
 Requirements for a prima facie case
 Employee has a sincere religious belief that conflicts
with an employment requirement
 Employee informed the employer of the conflict
 Employee was discharged or disciplined for failing to
comply with the conflicting employment requirement
 Once prima facie case is established the burden
shifts to the employer to prove reasonable
accommodation was offered
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Religious Conflicts
 Employer considerations
 Make sure the basis for conflict is a religious one
 Attempt a good-faith accommodation of the religious
conflict
 The right to be free of religious discrimination is
not absolute
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Employer’s Duty to Reasonably
Accommodate
 The duty to accommodate depends on the
circumstances
 Employer relieved of liability if
 Employee was reasonably accommodated
 An attempt was made to reasonably accommodate
the employee
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Employer’s Duty to Cooperate in
Accommodation
 Under Title VII the employer is not required to
resolve conflict in the way the employee wants
 Accommodation need not be the most
reasonable
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Employer’s Duty to Cooperate in
Accommodation
 Factors determining reasonable accommodation
 Whether the employer made an attempt at
accommodation
 The size of the employer’s workforce
 The type of job in which the conflict is present
 The employer’s checking with other employees to see
if anyone was willing to assist in the accommodation
 The cost of accommodation
 The administrative aspects of accommodation
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What Constitutes Undue Hardship?
 Factors determining undue hardship:
 The nature of the employer’s workplace
 The type of job needing accommodation
 The cost of the accommodation
 The willingness of other employees to assist in the
accommodation
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What Constitutes Undue Hardship?
 Factors determining undue hardship (contd..)
 The possibility of transfer of the employee and its
effects
 What is done by similarly situated employees
 The number of employees available for
accommodation
 The burden of accommodation on the union (if any)
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What Constitutes Undue Hardship?
 Courts find undue hardship if an employer has to
 violate the seniority provision of a valid collective
bargaining agreement
 pay out more than a “de minimis” cost to replace a
worker who has religious conflicts
 force other employees to trade places with the
employee who has a religious conflict
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Religion as a BFOQ
 Title VII
 Permits religion to be a bona fide occupational
qualification
 specifically permits educational institutions to employ
those of a particular religion if they are owned in
whole or in substantial part by a particular religion
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Religious Harassment
 Prohibited under Title VII
 Religious Freedom Restoration Act
 religious practices must be accommodated unless a
compelling governmental interest can be
demonstrated and advanced in the least restrictive
manner
 U.S. Supreme Court overturned RFRA in 1997
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Religious Harassment
 Under the guidelines set forth by President
Clinton, federal employees
 Should be permitted to engage in private religious
expression in personal work areas
 Should be permitted to engage in religious expression
with fellow employees
 Are permitted to engage in religious expression
directed at fellow employees
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Religious Harassment
 To avoid liability employers should
 Protect employees from those religious employees
who attempt to proselytize others who do not wish to
be approached about religious matters
 Protect employees with permissible religious
practices who are given a hard time by those who
believe differently
 Make sure that employees are given comparable
opportunities to use workplace time and resources for
religious practices
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Union Activity and Religious Discrimination
 Unions are also under a duty to reasonably
accommodate religious conflicts
 Frequent conflicts
 Union membership
 Payment of union dues
 Picketing and striking
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Union Activity and Religious Discrimination
 It violates Title VII for an employer to discharge
an employee for refusal to join the union
because of his or her religious beliefs
 The Establishment Clause
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Management Tips
 Take all employee notices of religious conflicts
seriously
 After an employee puts the employer on notice
of a religious conflict, immediately try to find
ways to avoid the conflict
 Ask the employee with the conflict for
suggestions on avoiding the conflict
 Ask, but don’t require, other employees to assist
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Management Tips
 Keep workplace religious comments and
criticisms to a minimum
 Make sure all employees understand that they
are not to discriminate against employees on the
basis of religion
 Do not challenge that employee’s religious
beliefs during a conflict
 Make sure undue hardship actually exists if it is
claimed
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