Table of Contents
1. Introduction1
2. Definitions2
2.1 Religious Belief2
2.2 Religious Discrimination3
3. Title VII of the Civil Rights Act of 19643
3.1 Prohibitions3
3.2 Accommodations and Undue Hardship4
3.3 Who is Subject to the Provisions under Title VII?5
4. How to Handle Religious Discrimination in the Workplace6
4.1 Preventive Measures6
4.2 Filing a Charge8
5. Cloutier v. Costco Wholesale9
6. Religious Discrimination after September 11, 200112
7. Summary and Conclusion13
7.1 Summary13
7.2 Conclusion15
1. Introduction
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against applicants and employees because of their race, color, religion, sex or national origin. Religious Discrimination as part of the Civil Rights Act is the subject of this term paper.
Initially, I will give a brief definition of "religious belief" and "religious discrimination" and write afterwards about prohibitions regarding religious discrimination, reasonably accommodation of religious beliefs and practices, undue hardship, and about the question "Who is subject to the provisions under Title VII?".
Furthermore, I will enter into the question how employers and employees should handle religious discrimination in the workplace. Since discrimination in the workplace cannot only cause costly lawsuits, but also has an impact on the moral of the employees, I will name some preventive measures. After that, I will switch to the employee's view and give the reader an idea of what an employee should consider when filing a charge because of religious discrimination.
Then, I will present the case Cloutier v. Costco Wholesale, which shall illustrate how everything fits together - from the broad definition of religion to the handling of a filed charge.
According to statistics of the Equal Employment Opportunity Commission (EEOC) and state and local fair employment practices agencies, the number of charges alleging workplace discrimination based on religion or national origin has been significantly increased after September 11, 2001. Therefore, I will deal in this term paper with the influence of the attacks on the World Trade Center and the Pentagon on religious discrimination in the workplace.
Finally, I have summarized some do's and don'ts for employers, since they should always take an employee's religion into account when making particular workplace decisions. A brief conclusion at the end shall round this term paper off.
2. Definitions
2.1 Religious Belief
The Equal Employment Opportunity Commission (EEOC) Guidelines "do not confine the definition of religious practices to atheistic concepts or to traditional religious beliefs. Under the Guidelines, a belief is religious not because a religious group professes that belief, but because the individual sincerely holds that belief with the strength of traditional religious views" .
2.2 Religious Discrimination
"Religious discrimination encompasses either taking adverse employment action against an employee or applicant based upon their religious beliefs or the failure to make accommodations in the workplace for religious beliefs or practices."
3. Title VII of the Civil Rights Act of 1964
3.1 Prohibitions
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against applicants and employees because of their religion in relation to all terms and conditions of employment. This includes hiring, firing, compensation, benefits, job assignments, shift assignments, promotions, discipline, etc. It also prohibits employers from retaliating against applicants and employees who complain about a violation of their rights.
3.2 Accommodations and Undue Hardship
Title VII of the Civil Rights Act of 1964 also requires employers to reasonably accommodate religious practices and beliefs of employees, but employers do not have to tolerate undue hardship.
The U.S. Equal Employment Opportunity Commission (EEOC), which enforces Title VII, lists "flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers as examples of accommodating an employee's religious beliefs" . In other words, employers may be obligated to change shift arrangements so that the employee can work on another day, to allow leave for religious observances, to offer time and place to pray, to relax a dress code so that an employee can wear religious clothes, etc. If possible, the employer should also designate someone as contact person for accommodation requests.
However, employers are neither required to accommodate any religious practice or belief, nor do they have to pay all the costs of an accommodation. According to the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Supreme Court is anything that causes more than ordinary administrative costs and disruption defined as undue hardship. Examples for undue hardship are "lost efficiency from shifting employees from other departments to cover lost shifts caused by religious practice; increases in wages, including overtime, for working weekend or evening hours; requiring employees without religious conflict to work overtime; and lost productivity due to the loss of a worker with unique skills" . However, if an employer denies an accommodation, he or she should ensure that the employee understands the nondiscriminatory basis for the employer's inability to implement the accommodation.
3.3 Who is Subject to the Provisions under Title VII?
Not every employer is subject to the provisions under Title VII. It only applies to following employers:
Private employers with 15 or more employees,
State governments and their political subdivisions and agencies,
The federal government,
Employment agencies,
Labor organizations, and
Joint labor-management committees and other training programs.
4. How to Handle Religious Discrimination in the Workplace
4.1 Preventive Measures
Title VII of the Civil Rights Act of 1964 defines religion as "moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views" . Since this definition is very broad, employers should treat employees who seem to be not too religious in the same way they treat employees with a strong faith in a traditional religion.
Furthermore, employers should express in their written applicant and employee material that they are not discriminating in terms and conditions of employment on the basis of religion. Any test used in the process of hiring employees should be tested against the guidelines of the U.S. Equal Employment Opportunity Commission (EEOC).
The company's mission and policy should be also carefully formulated to avoid the appearance to applicants and employees that a particular religious belief is a requirement for a job. Statements that imply something else are not acceptable. Exception may be companies, which qualify for the bona fide occupational qualification status for religious requirements.
To prevent a claim of harassment, an employer should train his or her supervisors on how to identify and respond to harassment and how to discuss religious beliefs with employees. In addition, the employer should ensure that every employee has access to and knows about the company's anti-harassment policy and complaint procedure.
The policy itself should communicate that employees must respect the rights of their co-workers and should include "a prohibition of harassment, a complaint procedure that allows the complainant to bypass the direct supervisor, assurance of non-retaliation against complainants and assurance that all complaints will be promptly investigated and appropriate action taken" .
If the employer wants to allow or even sponsor particular religious events in the workplace - like a Christmas party for example - he or she should make clear that attendance is not a must and has no effect on the employee's situation in the company. Furthermore, the employer then has to allow other religious groups also the organization of religious events and has to furnish them with the same benefits.
As already mentioned, employers are obligated to reasonably accommodate religious practices and beliefs of their employees, but if an employer allow greater accommodation for a particular religious group than the law requires, he or she has also to extend that level of accommodation to employees of other faiths.
4.2 Filing a Charge
Applicants and employees, who believe they have been discriminated because of their religion, can file a charge with the U.S. Equal Employment Opportunity Commission (EEOC). Although employees who file a charge are protected against retaliation, another person, an organization, or an agency has the possibility to file the charge on behalf of the employee in order to protect its identity.
Before an applicant or employee can file a private lawsuit, he or she has to file a charge with the Equal Employment Opportunity Commission (EEOC). There are strict time frames in which a charge must be filed. Generally, a charge must be filed with the EEOC within 180 days after the discrimination took place. If the charge is also covered by a state or local anti-discrimination law, the charge must be filed with the EEOC within 300 days, or 30 days after the state or local agency has terminated its processing of the charge. Employees, who file a charge or complaint beyond these time frames, might not be able to obtain any remedy.
Courts evaluate a claim of religious discrimination in two steps. First the employee has to show that he holds a religious belief that conflict with an employment requirement, that he has informed the employer of the conflict, and that he was discharged for failing to comply with that conflicting employment requirement. The employer then has to show that he or she cannot reasonably accommodate the employee without undue hardship in the conduct of the business.
5. Cloutier v. Costco Wholesale
The following case shall illustrate how everything fits together - the broad definition of religion, how an employee files a charge, how an employer can react when he or she is of the opinion that an accommodation would cause an undue hardship, etc.
In that case, Kimberly Cloutier claimed that she had the right to live in accordance with her religion - the religion of the Church of Body Modification - by showing her facial piercings at all times and that her employer's dress code discriminated against her, which forbids wearing jewelry at work.
When Cloutier became employed by Costco in 1997, she had eleven ear piercings and several tattoos on the upper arm, but no facial piercings. During the time between the begin of her employment and March 2001, when Costco revised its dress code, Cloutier got her eyebrow pierced. Since the new dress code forbids the wearing of facial jewelry, Costco requested her to remove her eyebrow ring, but Cloutier refused. Instead, she filed a complaint with the Equal Employment Opportunity Commission (EEOC).
The next time Cloutier went to work, she met with the store manager to talk with him about her complaint, to provide him with information about the Church of Body Modification and to offer him to wear a band-aid over her eyebrow ring. The store manager refused and told her as long as she does not remove her facial jewelry or at least replace it with a discreet plastic spacer, which would prevent the piercing from healing and "closing up" without the jewelry in it, she should not return to work. Cloutier did not return to work and was dismissed in accordance with Costco's absenteeism policy after missing several of her scheduled shifts.
As already stated, employees have to proof three elements to make a case of religious discrimination. Therefore, Cloutier had to show that she holds a religious belief that conflict with an employment requirement, that she has informed Costco of the conflict, and that she was discharged for failing to comply with that conflicting employment requirement.
Since the definition of religion is fairly broad, the Court assumed that Cloutier's stated beliefs were protected religious beliefs. Costco admitted that Cloutier informed it of her religious beliefs and that it dismissed her because of her facial piercings. Therefore, Cloutier met her initial burden of proof and Costco had to show that it offered Cloutier a reasonable accommodation of her religious practice or that it cannot reasonably accommodate her without undue hardship in the conduct of the business.
According to Title VII of the Civil Rights Act of 1964, employers are required to reasonably accommodate an employee's religious belief or practice, unless the accommodation would cause an undue hardship upon the employer. To be reasonable, an accommodation does not have to be the best accommodation possible, but a fair compromise between the employer and the employee.
In this case, the Court ruled that Costco had a legitimate interest in its dress code to present a professional appearance to the public. Furthermore, the Court held that the accommodations available to Cloutier (replace the eyebrow ring with a discrete plastic spacer) were reasonable.
Therefore, the Federal District Court for the District of Massachusetts judged in the favor of Costco.
6. Religious Discrimination after September 11, 2001
According to statistics of the Equal Employment Opportunity Commission (EEOC) and state and local fair employment practices agencies, the number of charges alleging workplace discrimination based on religion or national origin has been significantly increased after September 11, 2001. Since then, mainly Muslims, Arabs, South Asians and Sikhs became the victims of discriminatory acts.
In order to prevent a claim of harassment, an employer should have more than ever a focus on the company's harassment policy. He or she should revise the policy and be sure that it not only includes the necessary provisions, but also a complaint procedure.
Employees should be reminded that the policy covers all religions and national origins and all are entitled to the same protection - including Muslims, Arabs, South Asians and Sikhs. Furthermore, employees should understand that the company wants to be advised on discriminating behavior. They should clearly know that complaints will be promptly investigated and if necessary appropriate action taken.
Another important issue is the training of supervisors. Supervisors should not be only trained on the company's policy, but also on recognizing and handling complaints. These days' Muslim employees may be more sensitive to remarks of their co-workers and a basic knowledge of Islamic beliefs can be very helpful for supervisors when handling complaints of Muslim employees.
As a result of the attacks on the World Trade Center and on the Pentagon, the discrimination of Muslims increased and with that their uncertainty and fear, as well. Consequently, the need of Muslims for prayer increased, too. Employers are therefore often faced with the request to accommodate prayer times, services, and facilities for prayer in the workplace. As already stated, employers do not have to accommodate religious practices when it presents an undue hardship, but when they are willing to comply with a request and to offer a greater level of accommodation than the law requires, they have to accommodate requests of other religious groups to the same level - otherwise it would be discrimination.
7. Summary and Conclusion
7.1 Summary
In order to give a brief summary, I have listed some Do's and Don'ts employers should consider when making workplace decisions:
Don't treat employees different because of their religious practices or beliefs. In other words, do not refuse to hire someone because of his or her religion, do not set more or different promotion or work requirements for employees of a certain religion, etc.
Don't force employees (not) to participate in religious activities as a condition of employment.
Don't impose more restrictions on religious expressions than on other forms of expressions with a similar effect on workplace efficiency.
Don't retaliate against an applicant or employee who participates in any way in an investigation, proceeding, or litigation based on religious discrimination.
Do reasonably accommodate religious practices and beliefs of employees by adjusting the work environment to their religious needs.
Do prevent religious harassment of employees by implementing an anti-harassment policy and having an effective procedure for reporting, investigating and correcting harassing behavior.
7.2 Conclusion
Religious discrimination as part of Title VII of the Civil Rights Act of 1964 should be an important issue for employers. Costly lawsuits, a downturn in the employee's moral, and a negative impact on the company's image are only a few examples of the effects a discrimination claim can have on an employer.
Not only the trend since the attacks on September 11, 2001, but also the overall tendency of the Equal Employment Opportunity Commission (EEOC) statistics shows an increase in charges alleging workplace discrimination based on religion. Since employees become more and more aware of their rights, it may be a wise decision for the future of a company to take preventive measures and make sure that complaints will be immediately investigated and if necessary appropriate action taken.
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