Employment Law: Religious Discrimination in the Workplace

Religious Discrimination in the Workplace

In 2015, the Equal Employment Opportunity Commission received 3,502 complaints from employees alleging religious discrimination.[1] This area of the law can be difficult for both employers and employees to navigate and comprehend[2] because Title VII of the Civil Rights Act of 1964 does not offer clear guidance in interpreting the scope of an employer’s duty to accommodate an employee’s religion.

The best way to begin our understanding of what is protected is to look to the text of Title VII, which provides that:

“It shall be an unlawful employment practice for an employer –

(1)  to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2)  to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.[3]”

How does an employee prove religious discrimination?

Title VII’s text demonstrates that an employee can show religious discrimination in two ways.[4] The first is by demonstrating that an employer had practices that were intentionally discriminatory on the basis of religion.[5] Examples of these practices include compensating, hiring, promoting, or terminating employees based on their religious practices or affiliations. An example of intentionally unfavorable treatment occurred when two Muslim Somali-American truck drivers who refused to transport alcohol because it violated their religious beliefs under Islamic law were fired.[6] Their religion prohibited this employment activity and their employer discharged them because of their beliefs.

The second way an employee can demonstrate religious discrimination is by showing that his employer engaged in practices that were neutral on their face, but had discriminatory effects on religious beliefs or practices. In one United States Supreme Court case, clothing retailer Abercrombie & Fitch had developed a “look policy”, which was the company’s dress code. Teenager Samantha Elauf, who wore a headscarf as part of her Muslim faith, was not hired because her headscarf clashed with the dress code.[7] Though the dress code was neutral on its face, it had a discriminatory effect, and Elauf maintained a successful religious discrimination charge.

How is “religion” defined?

Under Title VII, “religion” is defined to include all aspects of religious observance and practice, as well as belief. Additionally, the traditional organized religions such as Buddhism, Christianity, Hinduism, Islam, Judaism aren’t the only ones protected; religious beliefs that are new, uncommon, or followed by only a small number of people may also be protected. All that is required of an employee who seeks the protection of Title VII is to have a “sincerely” held belief.[8] In determining whether the religious beliefs are sincerely held, a court will usually take an employee at her word and will not second-guess her based on its own logic or reasoning.[9]

What is a “reasonable” accommodation?

Title VII requires an employer to reasonably accommodate the religious beliefs and practices of employees unless she can demonstrate that she is unable to reasonably accommodate an employee without undue hardship.[10] An undue hardship is something that would cause more than a minimal burden on an employer’s operations.

The Court decision, Trans World Airlines, Inc. v. Hardison, was the first Title VII religious discrimination case to define “reasonable” accommodations. TWA had fired an employee when he refused to work on Saturdays, his Sabbath day, at the airlines’ maintenance and overhaul base.[11] A lower court found that TWA had not satisfied its duty to accommodate the religious needs of the employee when it didn’t grant him Saturdays off, but the Supreme Court disagreed. The Court examined TWA’s conduct and found that it made “reasonable efforts” to accommodate the religious needs of the employee, who was very integral to the operation of the base, by seeking to find him another job or arrange a trade of shifts.[12] The Court reasoned that accommodations that require an employer to incur significant financial costs are unreasonable and requiring them to be made would cast an undue burden on the employer.

Since Hardison, the EEOC lists examples of what is meant by “reasonable” accommodations in its published guidelines. These include granting an employee time off on a religious holiday, such as Rosh Hashanah for an observant Jew, or permitting a Muslim female employee to wear a hijab in the workplace.[13] 

The “ministerial” exception for employers

Although Title VII has wide-ranging applicability, the prohibition against employment discrimination based on religion doesn’t apply to employers who are religious organizations who employ people “of a particular religion to perform work connected with the carrying on by such (an organization) of its activities.” This exception is known as the “ministerial exception.”[14]

Though it may restrict an employee’s civil rights, this exception is needed because religious employers, such as church or religious schools, also enjoy First Amendment rights to select clergy members or teachers, to convey the religious organization’s message and carry out its mission.[15] The Court has provided that religious groups must be able to choose who will preach their beliefs, teach their faiths, and carry out their missions, and, as such, they “must be free to choose those who will guide it on its way.”[16]

How can an employee file a charge of employment discrimination?

The EEOC handles charges filed by employees based on religious discrimination. In general, the complainant must file a charge within 180 calendar days from the day the discrimination took place.[17] When filing with the EEOC, someone claiming religious discrimination must include personal information, as well as:

·         a short description of the events that were potentially discriminatory;

·         date when events took place; and

·         a statement of reasoning for why the employer’s actions were discriminatory

Title VII provides ample methods to redress the wrongs experienced by the American worker who believes she has been discriminated against because of religion. Despite this, Title VII case law is also formulated to balance the needs of the employer should a claim of religious discrimination arise.