Joel Dillard

Representing Mississippi Workers



Employers must accommodate religion, but only if they know suspect there is a religious need for accommodation

Today's post is by one of the firm's Peggy Browning Fellows, Mary Kate Dugan.

Most Americans understand that the First Amendment protects one’s right to practice religion from governmental interference. However, many would be surprised to learn that they also are entitled to certain religious rights at work, even if they work for a private company. Under Title VII of the Civil Rights Act, the federal government forbids employers from discriminating on the basis of religion and imposes the duty that employers reasonably accommodate an employee’s religion.

Under Title VII, an employee’s right to religion takes several forms. An employer cannot consider a job applicant’s religion as a factor in its decision to hire an otherwise qualified job applicant. Additionally, an employer cannot factor in an employee’s religion in a decision about whether to promote, determine compensation, discipline, or fire an employee. Importantly, Title VII defines religion to include not only religious belief, but observances and practices. Therefore, employers have a duty to reasonably accommodate the religious observances and practices of their employees. If an employer cannot reasonably accommodate an employee’s religion without incurring undue hardship, or an undue burden to itself, the employer has a defense against a charge of discrimination.

All of these issues came to bear in the 2015 Supreme Court case, EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028. In that case, a Mulism woman applied and interviewed to work at a nationally branded clothing store. Concerned that the job applicant’s headscarf would violate the companies’ workwear look policy, and that she would not be willing to remove it due to her religion, the manager decided not to hire the applicant. The Supreme Court ruled that religious discrimination did not require the manager to have actual knowledge of the applicant’s need for an accommodation: instead, an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

Although actual knowledge is not required under Abercrombie, a plaintiff still must prove discriminatory motive. A subsequent decision by the Fifth Circuit in Nobach v. Woodland Village Nursing Center, 799 F. 3d 374 (5th Cir. 2015), provides caution on this point. In Nobach, a nursing home activities refused to pray the rosary with a patient. When the patient complained to a manager, the manager fired the aide. During her firing, the aide told the manager that she had refused to do the rosary because it was against her religion. The manager replied, I don’t care if it is against your religion or not. If you don’t do it, it’s insubordination.

While the aide won her jury trial, she lost on appeal. The Fifth Circuit stated that it simply cannot find evidence that, before her discharge, [the employee] ever advised anyone involved in her discharge that praying the Rosary was against her religion. In other words, the employer could not have been motivated by the employee’s religion if it was never aware of her religion. Therefore, there was no religious discrimination. The Abercrombie case highlights a nuance in Title VII religious discrimination law: an employer need not have actual knowledge of an employee’s religion for an employee to prove a discriminatory motive. But Nobach foregrounds the main rule: to prove discrimination, an employee must prove a discriminatory motive, and that means showing that the employer at least suspected that a conflict between the employment duties and an employee’s religion. While almost all employee’s retain religious rights in the workplace, those rights can be tricky to assert. If you are in a position where your religion has put you at odds with your workplace policies or your job responsibilities, consider consulting with a lawyer before you go asserting your rights.



The Future of Religious Accommodation and Discrimination

Last time we talked about the current law on religious discrimination. Today we'll dig deeper on religious accommodation.

In 1964, Congress outlawed discrimination based on religion in the workplace. Congress also required the employer to accommodate the religious practices of its employees, unless doing so would be an undue burden.

But early on, in 1977, the Supreme Court heard a case about how much burden was due, and said that the employer was not required to do anything that was more than de minimis - latin for itty-bitty. Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 84 (1977). This means that if it was even mildly inconvenient for the employer, the employer was not required to accommodate the religious practice. It completely eviscerated the statute.

That may be changing. The government has asked the Supreme Court to take up the issue and expand this protection, so that the term undue burden means something real. Although the Supreme Court has not yet taken up the issue, Justices Alito, Thomas and Gorsuch have written a short opinion indicating that, when the right case comes along, they intend to take the issue up and will support expanding the protections of the law.

I think it likely that the liberals on the Court would also support this. (Marshall and Brennan dissented in Hardison.) Practically, this means that there is a good chance that, in the right case, the Court will unanimously or near-unanimously expand the protections against religious discrimination in Title VII. I look forward to it.

Illegal employment discrimination.

Federal laws make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. The firm has pursued a number of claims like this, including one I posted about earlier, which you can read about by clicking here.

This includes both intentional discrimination, and some forms of accidental discrimination through making rules that end up disadvantaging a particular type of person. For example, a rule requiring manual laborers to speak English may be unlawful because it has an adverse impact on national origin and is not required for the work. The same is true, in most workplaces, for a rule against hiring anyone with an arrest or conviction record - unless the particular criminal conviction is of importance for the particular job. I expect many, many employers maintain illegal rules about background checks. I will post more about this later.

It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. This protects complainants and witnesses in these kinds of cases.

Most employers with at least 15 employees are covered by these laws (20 employees in age discrimination cases).

In addition, Section 1981 of the Civil Rights Act of 1866 prohibits discrimination in employment on the basis of race by any employer, even those with fewer than 15 employees. There is also a separate law covering unequal pay between men and women.

The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.



Intentional employment discrimination based on race, skin color, national origin, accent, language, citizenship and related issues

Race

Race discrimination involves treating people unfavorably because of their race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features).

Race discrimination also can involve treating someone unfavorably because, for example, the person is married to a person of different race, or because the person is a member of an organization that is generally associated with people of a certain race.

Color

Color discrimination involves treating someone unfavorably because of skin color - for example, a lighter-skinned black person who discriminates against darker-skinned black people. Thus, even if the discrimination is not based on race, if distinctions are drawn by skin color it is still illegal.

National origin, accent, language

National origin discrimination involves treating people unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).

For example, An employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively. An English-only rule, which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.

An employer may not base an employment decision on an employee’s foreign accent, unless the accent seriously interferes with the employee’s job performance.

(Non)Citizenship

An employer cannot discriminate based upon an individual's citizenship or immigration status, e.g., cannot refuse to hire someone with valid work authorization simply because they are not a U.S. Citizen. The law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract.



Illegal uses of criminal background in employment decisions

Did you know that it might be illegal for employers to refuse to hire someone because of their criminal background? The Equal Employment Opportunity Commission has issued guidance defining the legal and illegal uses of criminal background information, and many employers are probably in violation and can be subject to a lawsuit.

Arrest records

If an employer refuses to hire because of an arrest that did not result in a conviction, this could be illegal. Anyone can be arrested, and the arrest itself doesn't prove that anyone did anything wrong. So, in addition to the fact of the arrest, the employer would also have to have some kind of proof that the person arrested actually did something wrong, and that this is related to the job the person has applied for.

Convictions, guilty pleas, no-contest and non-adjudications

A conviction - whether after trial, or by guilty plea, or by nolo contendere plea, or even by what is called non-adjudication, is sufficient proof of the misconduct. But it may still be illegal to refuse to hire someone because of a conviction.

This can happen where convictions are treated differently in people of different race, sex, etc. These kinds of cases are similar to many others: the complainant must prove that the race, sex, etc. motivated the decision by showing with examples that the employer treats, e.g., black criminals worse that white criminals in the hiring process. On the other hand, and somewhat ironically, if the employer is too consistent, that is, if the employer maintains any hard-and-fast or consistently applied rules about how convictions are treated in hiring, the employer could be opening itself up to different kind of case, one which challenges the impact of the rule on black people or men or some other protected class.

Zero Tolerance and other illegal rules using convictions

It is this kind of rule case that I want to focus on today. These cases are significantly more complex than other employment discrimination cases.

First, the person challenging the rule must show that there is a rule. This can be as simple as pointing to the place in the handbook where the employer describes its conviction policy - but very often it is not so simple. Employers are often savvy enough to avoid any admission in the handbook, and instead just tell the hiring supervisors that they have an unwritten policy of zero tolerance. In that case, ideally the challenger would have heard the supervisor admit to this at the interview, or even have additional concrete evidence that the policy exists.

Next the challenger must prove the rule is likely to have hurt his class more than others. Black people, for example, should have little trouble with this because the EEOC has frequently referred to the statistics proving this in that case.

At that point it becomes the employer's burden to prove that the rule is job related and consistent with business necessity. One way to accomplish this is for the employer to use their own statistics - i.e., on recidivism, or risk of recurrence, together with a showing that the recurrence would negatively impact the employer. The EEOC has published Uniform Guidelines on Employee Selection Procedures which describe this method. But it is quite difficult to do, and often requires limiting the kinds of jobs impacted to particularly sensitive ones - such as childcare or positions of financial trust - and to particular kinds of convictions related to the job.

The second way to prove this requires showing, in essence, that the rule is not in fact a hard-and-fast one, but that it is actually a targeted screen which considers at least three factors:

  1. The nature and gravity of the crime,
  2. Time elapsed since the crime or sentence served, and
  3. The nature of the job.
In doing so, the employer sometimes must also give notice to the employee of the issue, and an opportunity for the individual to respond and explain why the prior conviction should not disqualify them for the particular job under the particular circumstances.

It seems likely that many employers are not following these procedures and are not giving individualized consideration to the potential employees with convictions. If this is so, a labor lawyer may be able to help. However, be aware that there is a 6-month time limit on bringing these charges, and if nothing is filed in this time the issue cannot be challenged.

To read the original EEOC guidance, click here.

USERRA

Veterans also have special rights in the workplace under the Uniformed Services Employment and Reemployment Rights Act - the most important of which is the right to leave the job for military service (even for a number of years) and to demand reemployment on your return from service. The firm is currently pursuing a case in which a Mississippi Department of Corrections employee was denied his stautory rights under this law. More about this in a forthcoming blog post.

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First provide the firm with your name, and the name of the person you are making claims against - and no other information. This allows the firm to check for such conflicts of interest. Until you receive confirmation from an attorney that there is NO CONFLICT, none of the information you provide will be considered confidential. Do NOT provide any confidential information before we have asked you to do so.

Once we have confirmed there is no conflict, you may discuss your matter with the attorney in a little more detail, and, if requested, make an appointment. If at your appointment the firm accepts you as a client in writing, then the attorney will be able to provide you with employment law advice.

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