Employees have important rights in the event they experience race discrimination, age discrimination and religious discrimination at work. We litigate these cases regularly. See more in the excerpts from our blog below!

Religious practice must be accommodated at work

In a blog post back in 2020 entitled The Future of Religious Accommodation and Discrimination, I predicted that the Supreme Court will unanimously or near-unanimously expand the protections against religious discrimination in Title VII by changing the interpretation of undue hardship for religious accommodation.

Then, in January 2023, the Court took up a case on exactly that issue. Groff v. DeJoy. Argument was held in April and the decision was issued at the end of June.

As I had predicted, the Court unanimously decided that the longstanding view of the circuit courts was wrong. It adopted a far more protective view of religious accommodation.

The plaintiff in the case, Mr. Groff, was a rural carrier associate for the post office and was an observant Christian who did not work on Sunday. Then, when Amazon made USPS start Sunday delivery, Groff's bosses tried to make him run Sunday routes. After a number of disciplinary actions because of this, Groff was forced out of the job.

The statute is clear that religious accommodations must be provided unless they are an undue hardship. The question was what that means. Prior decisions had suggested that even a de minimis (latin for itty-bitty) inconvenience was enough to justify refusing to accommodate. Some courts have even allowed bigoted customer or coworker feelings to qualify as a so-called undue hardship.

The unanimous Court said that undue hardship means what it says, and that is a real hardship: i.e. privation, suffering, adversity which is undue: i.e. excessive or unjustifiable.

In practice, this means substantial increased costs in relation to [the employer's] particular business, including the practical impact in light of the nature, size and operating cost of an employer. And even if the requested accommodation is too burdensome, the employer is also required to consider if there are any other alternatives that might work.

This was a complete transformation of the existing law, and its effects were felt immediately. For example, in September 2023, the Fifth Circuit reversed a decision that it was an undue hardship for a prison to accommodate a nazarite's uncut hair and beard. Hebrew v. Tex. Dept. Crim. Justice. The prison cited three safety concerns: that contraband could be smuggled in the hair, that gas masks would not fit, and that offenders might use the hair to grab and attack the guard. The Court rejected all three, noting that searching the hair for contraband is not an undue hardship under the Groff test, that medical (but not religious) exceptions were allowed for beards, and that women were allowed long hair. By giving exceptions for disabilities and women but not for religion, the prison was not only giving the lie to its stated safety concerns, it was was also discriminating based on religion.

In short, the door has been opened for real religious accommodations in the workplace. And it's about time, too.

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.

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.

Yelling and rudeness in opposing illegal discrimination

It is understandable that when an employee suffers discrimination at work, things may get a bit heated. As the EEOC has noted in Odilia (discussed below) employees accusing their supervisors of harassment and discrimination inherently involves confrontation, so it would have been difficult for Complainant to avoid a confrontational and disrespectful tone. That shouldn't by itself strip employees of their rights. When an employee gets a little loud about discrimination they are experiencing, the yelling may be a bad idea - and it will certainly hurt their case - but they should still have some protection against retaliation unless their conduct is objectively too extreme.

As Professor Carle has written, to expect perfect decorum when reporting a traumatic event like discrimination is not only logically untenable but also undermines the objectives of Title VII. It creates perverse incentives, resulting in employers having higher chances of prevailing in discrimination suits when their conduct is so infuriating that it causes employees to lose their temper. Angry Employees: Revisiting Insubordination in Title VII Cases, 10 Harvard Law & Policy Review 185 (2016).

In a blog post back in 2020 we talked about yelling and other forms of rudeness that can come up when standing up for worker's rights. That law has changed once again, and this time it has gotten better.

In Lion Elastomers LLC II, 372 NLRB No. 83 (2023), the NLRB reversed the misguided General Motors decision we previously discussed, and reinstated the proper test. Under this test four factors are considered:

1. the place of the discussion;
2. the subject matter of the discussion;
3. the nature of the employee's outburst; and
4. whether the outburst was, in any way, provoked by an employer's unlawful conduct.

So, unless an employee's protected complaint was beyond the pale and unprovoked, it will be illegal retalition to fire the employee for the outburst.

In this way, the Fifth Circuit and NLRB have applied a balancing test which considers all the circumstances. NLRB v. Sw. Bell Tel. Co., 694 F.2d 974, 978 (5th Cir. 1982) (protecting a union shop steward who engaged in an intemperate spontaneous outburst since one outburst had taken place in the context of discussion of terms and conditions of employment, activity protected under Section 7, and that the other had been provoked by the earlier disciplinary action)

The EEOC has also recognized this in its doctrine of per se retaliation protecting federal employees. For example, in Odilia M. v. VA, an employee engaged in confrontational and disrespectful communications accusing the supervisor of discrimination, and was disciplined for [d]isrespectful conduct, use of insulting, abusive, or obscene language to or about other personnel. EEOC Appeal No. 0120150311 (Nov. 3, 2016). EEOC held that this was unlawful retaliation per se. It reasoned that a supervisor's discipline that, on [its] face, discourage[s] an employee from participating in the EEO process violate[s] the letter and spirit of the EEOC regulations and evidence[s] a per se violation of the law. This is so even if the employee complaining had in fact been rude about it.

To be clear, I'm not suggesting that anyone yell or get rude when reporting discrimination. Make no mistake: it is always a mistake to yell or get rude. It will definitely make your case worse or even ruin it if you go off the handle about it at work. Take a deep breath. Be cool. Make your discrimination accusation when you are at your most centered and calm. You might even want to record yourself doing it to protect yourself against false accusations of rudeness.

But if that ship has sailed and things got a little heated, it may not be the end of the world. You still should have some protection against retaliation.

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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