Religious Discrimination

Recent Trends in Religious Discrimination in the Workplace:
Handling Atypical Religious Practices

By Megan J. Erickson,
Dickinson, Mackaman, Tyler & Hagen, P.C.

In fiscal year 2006, the Equal Employment Opportunity Commission (EEOC) received 2,541 new charges of religious discrimination—over 200 more charges than in the previous year. The EEOC resolved 2,387 religious charges in FY 2006, with employers paying $5.7 million in settlement to the charging parties. These figures do not even include what happened in litigation during this time. Review of recent case law indicates religious discrimination claims are moving beyond the usual work schedule conflicts and workplace proselytizing to atypical religious practices. With this changing landscape, and these numbers from the EEOC, employers would be wise to refresh their policies and training to avoid potential religious discrimination claims.

Religious Discrimination, in General

Title VII of the federal Civil Rights Act of 1964 prohibits employers from discriminating against workers because of their religion. Generally, employers may not refuse to hire, or otherwise take an adverse employment action against, a person on the basis of any aspect of an individual's religious observance, practices, or beliefs. In addition, employers must reasonably accommodate a person's religious practices, unless such accommodation poses an undue hardship on the business.

Most states have civil rights statutes that similarly forbid discrimination based on religion. Plaintiffs can bring parallel religious discrimination claims under the state and federal statutes.

Generally, plaintiffs must provide proof of the following in order to prevail in a claim of religious discrimination in the workplace:

S/He holds a sincere religious belief.

S/He was qualified for the job and was performing according to the employer's legitimate business expectations.

S/He suffered an adverse employment action or the employer failed to reasonably accommodate his/her religious belief.

The employer's intent for the adverse employment action was due to his/her religious belief or the employer would have suffered no undue hardship by providing a reasonable accommodation.

Like other employment discrimination claims under Title VII, plaintiffs may establish the employer's intent through either direct or indirect (circumstantial), evidence.

Special Provisions in Title VII's Religious Protections

A. Requirement for Reasonable Accommodations

An employer may not treat an employee differently because of the employee's religion. However, an employer is required to reasonably accommodate an employee's religion unless it creates an undue hardship on the employer to do so. For example, an employer may be required to make a reasonable change to an employee's work schedule when it conflicts with that employee's religious practices. The federal regulations suggest alternative scheduling such as voluntary job substitutes and "swaps," flexible scheduling, and/or lateral transfers and reassignments as reasonable accommodations for religious conflicts in the workplace.

What constitutes an undue hardship? The EEOC has explained that an undue hardship for a religious accommodation requires more than a "de minimis" cost and must go beyond ordinary administrative costs. Also, it would be an undue hardship for a religious accommodation to unfairly alter a bona fide seniority system. In other words, an employer is not required to accommodate one employee's religious beliefs if doing so would deny another employee a job or job benefit that is otherwise guaranteed by a legitimate seniority system.

In addition to reasonably accommodating religious needs of employees, employers must also take proper steps to prevent religious harassment of employees. Perhaps the best way to do so is by establishing and maintaining effective anti-discrimination/anti-harassment policies, complaint reporting procedures, and training for managers and employees.

Practice Pointer: Employers should not "schedule examinations or other selection activities in conflict with a current or prospective employee's religious needs, inquire about an applicant's future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship."

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B. Exemption for Religious Organizations

While Title VII makes it illegal for employers to consider an individual's religion when making employment decisions, the statute explicitly exempts "religious organizations" from the Act's religious discrimination provisions. While this exception seems relatively straightforward, recent cases illustrate the difficulty in determining whether an employer's nature and purpose is primarily religious (qualifying it for the exemption) or secular/cultural (making the statute's prohibitions applicable).

For example, in LeBoon v. Lancaster Jewish Community Center Ass'n, 503 F.3d 217 (3d Cir. 2007), the Third Circuit addressed a discrimination claim brought by an organization's former bookkeeper who was fired after she attended a "Jews for Jesus" concert. The district court dismissed the plaintiff's religious discrimination claim, finding the employer, the Lancaster Jewish Community Center (LJCC), was a "religious organization" exempted from compliance with Title VII's religious discrimination prohibitions. The plaintiff, a Christian, argued LJCC's administrative and financial structure proved that the organization's nature and purposes were primarily cultural, rather than religious. The LJCC admitted it was not directly church-sponsored and many of its activities were secular in nature, but argued "its Jewish mission and orientation qualified it as a religious organization." The Third Circuit affirmed the district court's award of summary judgment to LJCC, agreeing it was a "religious organization" eligible for exemption. This result may have come out differently in another circuit. For example, in EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), the Ninth Circuit held that the legislative history of Title VII suggested a narrow interpretation of the exemption for religious organizations and "only those institutions with extremely close ties to organized religions" be exempted, such as churches.

Practice Pointer: Whether an employer is considered an exempt "religious organization" is determined on a case-by-case basis based on a number of factors assessing all religious and secular characteristics of the organization. However, even when the religious organization exemption is triggered, it only relieves the employer from the bar against employment discrimination based on religion; the employer generally may not discriminate on the basis of other protected classes under Title VII, such as race, sex, or national origin.

C. Exception When Religion is a Bona Fide Occupational Qualification

Similar to the exemption for religious organizations under Title VII is the exception allowing considering of religious beliefs when religion is a bona fide occupational qualification (BFOQ). If the nature of a particular job requires it to be carried out by someone of a particular faith or religion (i.e., a Baptist church wants to hire a Baptist pastor), religion may be properly taken into account when making employment decisions. The BFOQ exemption is quite narrow and rarely applied successfully.

Practice Pointer: Several states have laws prohibiting employment discrimination based on an individuals' sexual identity, sexual preference, gender orientation, or similar classification. Most of these state statutes include an exemption similar to the "religious organization" exemption, or BFOQ exception, under Title VII which allows religiously-affiliated entities to ignore those state law provisions.

When Employer and Employee Religious Beliefs Conflict

Religious discrimination claims usually arise when an employee or applicant is treated differently based on his/her religious beliefs or practices. However, a couple of recent cases remind employers that religious discrimination may also be based on the fact that the victim does not practice a particular religion that is practiced by the employer.

So-called "reverse discrimination" proved problematic for the employer in Noyes v. Kelly Services, 488 F.3d 1163 (9th Cir. 2007). Lynn Noyes sued her former employer, Kelly Services, after the company denied her a promotion. Noyes claimed her manager passed her over for the promotion because she was not a member of his small religious group, the "Fellowship of Friends." The top-level management employee charged with filling the position, William Heinz, considered only three individuals for the job: Noyes, Donna Walker, and Joep Jilesen. Heinz and Jilesen were both members of the Fellowship. When Heinz consulted other employees for input regarding who to promote, he told at least two of these employees that Noyes was not interested in the promotion. Noyes denied ever suggesting she was not interested in being named manager. Heinz ultimately promoted Jilesen, even though Noyes had worked for Kelly Services almost six years longer than Jilesen and Noyes held an MBA degree (which Jilesen lacked).

The Ninth Circuit Court of Appeals explained that even though Noyes was not treated adversely because of her own religious belief, she was subjected to a "type of no adherence or reverse discrimination claim because it is the religious beliefs of the employer, and the fact that the employee does not share them, that constitute the basis of the religious discrimination claim." (emphasis added). The Ninth Circuit determined that Noyes' case should proceed to a jury because she sufficiently called into question her employer's true motivation for promoting Jilesen instead of her.

Practice Pointers:

Review anti-discrimination policies and procedures (as written and as applied) to ensure they clearly protect against reverse religious discrimination claims as well as traditional religious discrimination claims.

One issue in Noyes was whether she was even interested in the promotion. The employer could have avoided this issue if it had procedures that (1) required it to post available positions, and (2) required employees to expressly apply for positions in which they were interested. If Heinz honestly believed Noyes was not interested in the promotion, this formal procedure could have corroborated his belief. On the other hand, if Heinz lied about Noyes not being interested in the promotion, this formal procedure would have deterred him from making an easily refuted statement to the contrary.

Heinz admitted that he feared promoting Jilesen could be perceived as unfair favoritism, but he did it anyway. If a manager or supervisor has reason to suspect a particular employment action may be perceived as discriminatory, it is wise to involve others in the decision-making process. Asking another internal decision-maker or manager to objectively review and/or approve the decision may bolster credibility. It may also be wise to consult legal counsel in such circumstances.

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A recent Eighth Circuit case addressed an employee who successfully argued that he faced unlawful religious discrimination because his relatively mainstream protestant beliefs conflicted with his employer's "new age" beliefs. In Ollis v. HearthStone Homes, Inc., 493 F.3d 570 (8th Cir. 2007), John Smith, the president and owner of HearthStone Homes, Inc., incorporated various elements of his new age belief system into his construction company's workplace. For example, Smith required his employees to participate in Mind Body Energy (MBE) sessions, believing this would cleanse workers' negative energy and thereby enhance productivity. Smith hired MBE coaches to work with his employees and even sent employees to out-of-state MBE courses (which incorporated elements of Buddhist and Hindu teachings). Smith also required his employees to carry a card listing the company's core values of ideals derived largely from reincarnation-based belief systems. Smith also used muscle testing—a technique he likened to praying and which he said measured negative energy—to make business decisions. Smith believed anything from strife between coworkers to construction problems at certain work sites could be addressed and remedied by using muscle-testing and MBE practices. For instance, Smith used muscle testing to determine that drainage issues at a particular subdivision arose because an associate's ancestors had died on the land during the Ice Age and the associate's negative energy caused the development's drainage setbacks. To solve the problem, Smith required the associate to attend MBE sessions to purge her negative energy.

Smith's advocacy of this kind of belief system offended Doyle Ollis, Jr., a salesman with HearthStone. Ollis belonged to the protestant Assemblies of God Church, and he disagreed with MBE practices and their philosophical roots. Ollis complained to his supervisor that he felt uncomfortable attending MBE sessions. Because they conflicted with his religious beliefs, Ollis often cancelled his appointments with Smith's MBE coaches.

Eventually, HearthStone fired Ollis for "poor leadership and lack of judgment" after he engaged in inappropriate sexual conversations with a female subordinate. (Smith used muscle testing to help him with the decision.) Ollis sued HearthStone for religious discrimination and retaliatory discharge. The jury ultimately found in favor of Ollis, but only awarded him $1 in damages. HearthStone appealed, arguing there was insufficient evidence to support Ollis' claims.

Ollis argued the company's required MBE sessions "involved affirming the belief in past lives, participating in ritual-like activities, and reading Hindu and Buddhist literature" —all of which conflicted with his Christian religious beliefs. The Eighth Circuit doubted HearthStone's articulated reason for terminating Ollie (the sexual harassment complaint) because the official termination notice did not reference sexual harassment, but said Ollis was fired for "poor leadership and lack of judgment." In addition, trial testimony showed that HearthStone tracked Ollis' attendance at (and frequent absences from) MBE classes. The Court held that a reasonable jury could have believed the MBE sessions were a condition of Ollis' employment. All this, and Ollis' complaints about the MBE sessions, could infer that Ollis was not terminated due to the sexual harassment complaint, but over his disagreement with management's religious beliefs and practices.

Practice Pointers:

As the EEOC explains, "Mandatory ‘new age' training programs, designed to improve employee motivation, cooperation or productivity through meditation, yoga, biofeedback or other practices, may conflict with the non-discriminatory provisions of Title VII. Employers must accommodate any employee who gives notice that these programs are inconsistent with the employee's religious beliefs, whether or not the employer believes there is a religious basis for the employee's objection."

Employers should not force employees to participate in religious or spiritual activities. Similarly, employees should not be forced to participate in an activity that is contrary to their own religious beliefs.

Employers should be sure that written termination notices include true nondiscriminatory reasons for an employee's termination.

Appearance and Religious Discrimination

A. Body Piercings

In 2004, Kimberly Cloutier, a former cashier for Costco Wholesaler, sued the store after she was fired for refusing to remove or hide her facial piercings at work. Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004). The store argued its dress code prohibiting certain piercings served its legitimate business interest of requiring employees to maintain a reasonably professional appearance, particularly for those interacting regularly with customers, as Cloutier did. Cloutier claimed that her termination constituted religious discrimination. She belonged to the Church of Body Modification (CBM) and her religion required that she wear facial jewelry. Costco agreed she could wear jewelry in her piercings while she worked, as long as she covered them with a bandage or replaced the jewelry with clear plastic spacers. She refused. The district court determined that although CBM was a bona fide religion to which Cloutier appeared to sincerely subscribe, CBM did not require the continuous display of facial piercings. The district court found Costco had offered a religious accommodation that Cloutier unreasonably refused to accept. The First Circuit agreed it would have caused Costco an undue hardship if the store was forced to allow Cloutier to wear her facial jewelry.

B. Tattoos

Edward Rangel, a waiter at a Red Robin restaurant, refused to hide the tattoos around his wrists, which were religious inscriptions. Rangel practiced an ancient Egyptian Kemetecism or "Kemet" religion. Rangel said he received the tattoos at a religious ceremony "after undergoing a rite of passage involving communal prayer, meditation, and ritual" and the tattoos represented his commitment to his faith. Rangel believed that intentionally covering his tattoos would have been a sin. The EEOC accused the dining chain of refusing to accommodate Rangel's religious needs and then unlawfully firing him. Rangel and the EEOC brought a religious discrimination suit against Red Robin Gourmet Burgers.
Red Robin's dress code prohibited employees from having visible tattoos. According to the EEOC, Rangel worked at the restaurant for six months without any complaint from patrons, coworkers, or supervisors—but when a new manager saw his tattoos, Rangel was fired for refusing to cover them. Rangel claimed he had many conversations with management about his faith and the need for an accommodation, but Red Robin would not permit an exception to its dress code.
After the district court denied Red Robin's motion for summary judgment in 2005, the restaurant chain settled the suit by paying $150,000 and agreeing to make significant policy and procedural changes.

Practice Pointers:

Employers must reasonably accommodate an employee's religion. This includes finding ways to allow employees to engage in religious expression without offending other employees or customers. An employer should place no greater restriction on religious expression than other forms of expression. If religious expression poses an undue hardship on the employer, then it may be restricted.

The unusualness of an employee's belief does not diminish the right to protection against discrimination based on it, nor the legitimacy of a religious discrimination claim. For instance, Edward Rangel affiliated himself with the Anu Tribe, which had fewer than ten members. Line supervisors and managers must be trained to respond to religious conflicts and requests for reasonable accommodation with an open mind—even when the religion or the request is novel or unusual.

Employers should carefully weigh the costs and benefits of any dress code policy to determine what limitations on body art or jewelry are justified.

Although employers may set dress codes, an employer must work with employees to evaluate requested accommodations due to religious conflicts. An employer should always engage in good faith discussions with an employee who is seeking an accommodation for religious beliefs.

Dress codes or grooming policies should be supported with reasonable and objective data whenever possible, such as safety requirements/regulations, injury reports, marketing statistics, or other research.

Even in cases where the employer is wholeheartedly convinced a particular accommodation poses an undue hardship, the employer should still consult an attorney before refusing an accommodation.

Megan J. Erickson is an attorney at Dickinson, Mackaman, Tyler & Hagen in Des Moines, Iowa. She earned her B.S., with distinction, from Iowa State University in 2004 and graduated, with high honors, from Drake Law School in 2007.

The information appearing in this publication is intended to provide current information relating to employment and labor law. It is not intended as legal advice or opinion, which is provided by the Firm to clients with respect to factual situations only upon engagement.

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