By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.
On August 17, 2016, the Equal Employment Opportunity Commission (“EEOC”) filed suit against KASCO, LLC in the U.S. District Court for the Eastern District of Missouri alleging the company had unlawfully terminated an employee, in violation of Title VII of the Civil Rights Act of 1964, because (1) of her religion – Islam, (2) her national origin – Afghanistan, and (3) she complained about previous discriminatory treatment. The suit’s allegations include derogatory statements by supervisors about the employee fasting during Ramadan and wearing a hijab.
The suit against KASCO, LLC was the fifth filed by the EEOC in the past four months asserting religious discrimination in violation of Title VII.
July 12, 2016: The EEOC sued Hospitality Staff in the U.S. District Court for the Middle District of Florida alleging the Orlando staffing company had violated Title VII by terminating a prep cook who refused to cut his long hair. The suit claims Hospitality Staff made no effort to accommodate the employee, who practices Rastafarianism and who grew his hair into dreadlocks as part of his religious beliefs.
June 7, 2016: The EEOC filed suit against Greenville Ready Mix Concrete, Inc., in the U.S. District Court for the Eastern District of North Carolina, complaining that a truck driver was unlawfully terminated for refusing to work on a Saturday. The suit avers Greenville Ready Mix made no attempt to reasonably accommodate the truck driver’s religious beliefs as a Seventh Day Adventist, which prohibit him from working from sunset on Friday to sunset on Saturday.
June 2, 2016: The EEOC sued Baystate Medical Center in the U.S. District Court for the District of Massachusetts claiming the company had discriminated against an employee, based upon her religious beliefs, by (1) refusing to accommodate her religious objection to mandated flu vaccinations, and (2) firing her because of this religious belief and her complaints of discrimination.
April 28, 2016: The EEOC filed suit against Mission Hospital, in the U.S. District Court for the Western District of North Carolina, alleging that employees had been fired for not timely requesting a religious exemption from mandated flu vaccinations. The suit contends a September deadline for requesting a religious accommodation to a December deadline for vaccinations was not a reasonable accommodation.
In Fiscal Year 2015, only 3.9% of the charges filed with the EEOC alleged religious discrimination. Five suits in four months, therefore, shows that religious discrimination is an enforcement priority for the agency. Furthermore, even though the EEOC released a technical guidance tool in March 2016 entitled “What You Should Know About Religious and National Origin Discrimination Against Those Who Are, or Are Perceived to be, Muslim or Middle Eastern”, it is clear that the agency enforcement priority is not limited to religious discrimination against Muslims.
The suits recently filed by the EEOC also raise three interesting questions about the breadth of protections provided by Title VII to religious observances, practices and beliefs.
Does Title VII Protect Non-Traditional Religions, Such as Rastafarianism?
Yes. For purposes of Title VII, religion includes not only traditional, organized religions, such as Christianity, Judaism, Islam, Hinduism, Buddhism or Sikhism, but also “sincerely held” non-traditional religious beliefs. In 2012, an Ohio federal court refused to dismiss a Title VII lawsuit claiming veganism as a religion. In 2002, a Wisconsin federal court found that an employee was protected by Title VII as a “follower of the World Church of the Creator, an organization that preaches … white supremacy.” “That is not a religion”, therefore, may not be the wisest approach by an employer when presented with a non-traditional belief. Rather, the prudent approach is for the employer to seek legal counsel to manage the risk of a Title VII claim.
Does Title VII Prohibit Derogatory Statements Regarding an Employee’s Religious Observances, Such as Ramadan and Hijabs?
Probably. Religious harassment is prohibited by Title VII and statements or conduct belittling an employee’s religious observances, such as holidays and appearance, can be the basis for a harassment claim. For this reason, it is important for an employer to (1) have a written policy prohibiting such harassment, (2) communicate in writing the procedures by which an employee can complain of religious harassment, and (3) provide religious harassment training to its employees, and not just sexual harassment training.
Does Title VII Require that Work Requirements be Relaxed to Accommodate an Employee’s Religion?
Possibly. According to the EEOC, “Title VII requires an employer to reasonably accommodate an employee who’s sincerely held religious belief, practice or observance conflicts with a work requirement, unless to do so would pose an undue hardship.” What constitutes “reasonable accommodation” or “undue hardship” depends upon the situation. In this regard, the analysis is different from that for disabled individuals under the Americans with Disabilities Act. Indeed, the Supreme Court, in TWA v. Hardison, 432 U.S. 63 (1977), held that an employer need not incur more than minimal cost or disruption of business in order to accommodate an employee’s religious observances.
Where most employers get into trouble, as exemplified by the recent EEOC suits, is holding fast to a work requirement without any analysis of the possibility of a reasonable accommodation to resolve a known religious’ conflict for an employee. Such an analysis may reveal a simple and workable solution. Such an analysis may also reveal that there is no reasonable solution to resolve the conflict. In either event, the analysis itself, memorialized in writing, may be the employer’s best defense to a Title VII suit alleging religious discrimination.