Chapter 11

Religious
Discrimination

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reproduction or distribution without the prior written consent of
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Learning Objectives (1)
Discuss background of religious discrimination,
and how it is similar to, and differs from other
protected characteristics
Understand Title VIIs broad definition of religion
for discrimination purposes
Explain religious conflicts under Title VII and
give examples
Define reasonable accommodation and its
undue burden limit

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Learning Objectives (2)
Describe religious harassment and give
examples
Recognize the relationship between unions and
workplace religious conflicts
Recognize that there are ways management can
avoid and minimize religious discrimination
conflicts via prevention

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This is Not Your Forefathers Religious
Discrimination
Religions role in human history and governance:
e.g., Henry VIIIs break from the Catholic Church
through JFKs candidacy, to today
https://www.youtube.com/watch?v=-WdgjS5j2po
The U.S. Constitution coverage, based on
colonial history
First Amendment: Establishment and Free Exercise
clauses form separation of church and state
Title VII prohibits discrimination in employment
based on religion
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Major Religions of the WorldRanked by
Number of Adherents

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Major Religions in the U.S.
Top Organized Religions
Christianity 76.5%
Judaism 1.3
Islam 0.5
Buddhism 0.5
Hinduism 0.4
Unitarian Universalist 0.3
(organized religion?)
Wiccan/Pagan/Druid 0.1
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This is Not Your Forefathers Religious
Discrimination (2)
Small number of EEOC claims
On the rise generally since 1993
Spike after September 11, 2001/hostility to Islam
Traditional Title VII concern: discrimination
based on difference (Catholic, Jewish, Muslim
overlap with national origin)
Increase in issues based on fundamentalist
Christian activities, practices, values conflicts
Sharing the faith vs. company policies

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This is Not Your Forefathers Religious
Discrimination (3)
Public employees: constitutional guarantees for
federal, state, and local government employees
when government is employer
Due process, Equal protection, Freedom of religion
Religious Institutions: largely exempt re Title VII
Ministerial exception (recall: Gannon case)
BFOQ for some other staff positions (e.g., academia)
Even some secular activities exempted (e.g., LDS
gym janitor case)

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This is Not Your Forefathers Religious
Discrimination (4)
Two Key Private Sector Concepts:
Duty to reasonably accommodate: The
employers Title VII duty to seek to avoid conflict
between workplace policies and employees
religious practices or beliefs
Undue hardship: Burden to accommodate
employees religious conflict too onerous for
employer to have to bear (accommodation limit)
Cases rarely turn on definition of religion, infra

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What is Religion? (1)
Context: consider this category vs. others:
Choice vs. inherent characteristic, but
Unrational (faith-based), values-driven, core ID factor
Key considerations for determining whether religion is
in-play:
Is the belief sincere and closely held?
Does it take the place of religion in the employees
life?
Atheism, white supy considered Title VII religions
Case: Peterson v. Wilmur Communications

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What is Religion? -- 2
Employer duty to accommodate
Attaches to the conflict itself, not to when the conflict
arises (after-hire conversions protected)
Applies to religious practices, not religious beliefs
Worship rituals (e.g., ablutions)
Proselytizing at work (e.g., pro-life mission)
Attire, grooming Scenario 1
Conflicts like Buonanno v. AT&T case: diversity policy vs.
religious beliefs
Scenario 3

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Religious Conflicts: prima facie case
Requirements for a prima facie case
Employee has a sincere religious belief that conflicts
with an employment requirement
Employee informed the employer of the conflict
Employee was discharged or disciplined for failing to
comply with the conflicting employment requirement
Scenario 2

Once prima facie case is established the burden

shifts to the employer to prove reasonable
accommodation was offered
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Religious Conflicts -- process
Employer considerations
Make sure the basis for conflict is a religious one
Attempt a good-faith accommodation of the religious
conflict
Understand the limit of employer duty
The right to be free of religious discrimination is
not absolute

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Employers Duty to Reasonably
Accommodate
The duty to accommodate depends on specific
situation get creative
Iterative process engage employee regarding
his/her interests, suggest possibilities
Employer relieved of liability if
Employee was reasonably accommodated
In intractable cases, good-faith attempt was made to
reasonably accommodate the employee

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Employees Duty to Cooperate in
Accommodation
Under Title VII, employer is not required to
resolve conflict in the way the employee wants
Accommodation need not be the most
reasonable
Case: Chalmers v. Tulon Company

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Factors determining reasonableness of
accommodation
Whether the employer made an attempt at
accommodation
Size of the employers workforce
Type of job in which the conflict is present
Employers checking with other employees to see if
anyone was willing to assist in the accommodation
Financial cost of accommodation
Administrative, operational burdens of
accommodation and effects on production

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Factors in Undue Hardship (1)
Factors determining undue hardship (limit):
Nature of the employers workplace
Type of job needing accommodation
Financial cost of the accommodation
Willingness of other employees to assist in the
accommodation

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Factors in Undue Hardship (2)
Factors determining undue hardship (contd.)
Possibility of employee transfer and its effects
What is done by similarly situated employees
Number of employees available for accommodation
The burden of accommodation on the union (if any)
Emergencies

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Undue Hardship -- Conclusion
Courts find undue hardship if an employer must:
violate the seniority provision of a valid collective
bargaining agreement
pay out more than a de minimis cost to replace a
worker who has religious conflicts
Relatively low standard; contrast Disability cases in Chap 13
force other employees to trade places with the
employee who has a religious conflict
Case: TWA v. Hardison

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Religious Harassment (1)
Two situations: heresy harassee and martyr
Under the guidelines set forth by President
Clinton, federal employees:
Should be permitted to engage in private religious
expression in personal work areas
Should be permitted to engage in religious expression
with fellow employees
Are permitted to engage in religious expression
directed at fellow employees

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Religious Harassment (2)
To avoid liability employer policies should:
Protect employees from those religious employees
who attempt to proselytize others who do not wish to
be approached about religious matters
Protect employees with permissible religious
practices who are given a hard time by those who
believe differently
Make sure that all employees are given comparable
opportunities to use workplace time and resources for
religious practices

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Union Activity and Religious Discrimination
Unions are also under a duty to reasonably
accommodate religious conflicts
Frequent conflicts regarding:
Union membership
Payment of union dues
Picketing and striking

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Union Activity and Religious Discrimination
It violates Title VII for an employer to discharge
an employee for refusal to join the union
because of his or her religious beliefs
The Establishment Clause

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Management Tips (1)
Prevention Policy: make sure all employees
understand that they are not to discriminate
against employees on the basis of religion
Keep workplace religious comments and
criticisms to a minimum
Take all employee notices of religious conflicts
seriously
After notice of a religious conflict, immediately
try to find ways to manage the matter

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Management Tips (2)
Ask the employee with the conflict for
suggestions on solving the problem
Ask, but dont require, other employees to assist
Do not challenge that employees religious
beliefs during a conflict, only practices relevant
Document elements of undue hardship
metrics?

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