Who, What, Why . . .

Who does it apply to: The law applies to all employers with 15 or more employees.

What is the issue: Title VII was passed in the 1960s to protect against discrimination based on race, color, religion, sex or national origin.

What am I required to do: Employers are required not to discriminate against employees on the basis of religion. More specifically, employers are required not to treat an employee adversely with any consideration of his or her religion in relationship to any significant aspect of employment.

What constitutes a violation: There are two kinds of violations – direct mistreatment and disparate impact. Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of religion by failing to hire, firing, demoting or any other type of significant slight someone might dream up, it can be actionable as religious discrimination.

Disparate impact is more subtle. Even if an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting workers of one religion more significantly than others. If an employer institutes a policy that employees must all be clean-shaven, the policy itself does not seem discriminatory because it may affect any worker. That said, certain religions require their adherents to grow beards. This seemingly neutral rule has a disparate impact against workers of certain religions and may create a claim.

What counts as a religion: Good question. What counts as a religion goes way beyond what most employers would think. Observances are protected regardless of whether the employee belongs to the particular body or sect whose observance they claim. Any observance based on a strong moral or ethical belief that is sincerely held with the strength of religious views may count.

What if my employee violates without consent: Choose carefully who you place in charge. Employees placed in positions of authority with the power to control the circumstances of other employees are not personally liable. Their liability is placed with the employer even if the employee acts without authority. The same is true of independent contractors (whether properly characterized or not) placed in positions of authority over employees.

What if religion is a requirement of the job: Sometimes a person’s religion may affect his or her ability to get a job. With religion, this usually occurs with churches and other denomination- focused businesses. Under Title VII these business are exempt from the religious toleration requirement. This exemption is complicated, however. You should always check with your employment counsel before acting under the exemption.

Can retaliation play a part: Title VII protects employees who engage in protected activities such as supporting another employee’s claim of discrimination, resisting instruction to discriminate, and filing a complaint about discrimination with the employer or EEOC. Employers cannot negatively impact a significant aspect of employment for an employee who supports another’s religious views or their complaint against religious discrimination. Employers also cannot retaliate against an employee for complaining of religious discrimination or making a charge of religious discrimination with the EEOC.

What about harassment: Even if an employer does not discriminate against an employee directly, the employer may be liable if its employees harass an employee about his or her religion. The harassment must be significant enough to interfere with the employee’s working conditions or ability to handle his or her job, but little harassing actions can add up to enough harassment to support a claim. An employer has a responsibility to be aware of what is going on with its employees and discipline employees for harassing conduct.

Are there any special state laws on religious rights: The Texas Labor Code mimics Title VII’s protections, but goes one step farther. Retail employers must respect an employee’s request to be off to attend regular worship service on one day per week.

Common Situations:

Tattoo me religious: Dot is a sales representative for Mae’s Ink Works, a purveyor of the finest inks. She decides on a whim to get a tribal tattoo around her bicep. She likes it so much that she insists on wearing sleeveless shirts all the time. Mae is not hip to tattoos and feels the customers who buy her inks will be put off by Dot’s tat. Mae insists that Dot cover the tattoo at all times while working. Dot does not like Mae’s policy and talks to her tattooed friends about the issue. They turn her on to the Church of Body Modification. Dot joins and tells Mae she would be violating her religious beliefs not to show the tattoo. What happens? No employer’s life is complete until he or she has a run in with the Church of Body Modification. This is a common dodge for employees. Unfortunately, the answer is unclear. If Mae can show lost sales or complaints about the tattoo, she may have an out. Of course, the beliefs of this church present a problem for Dot. She is not required to show her tattoo. Unless she can show a strong belief and moral basis, she may be out of luck.

Google liability: Rosie is in the habit of Googling applicants to see what she can learn about them before an interview. In her examination of one applicant, she discovers that the person is a regular runner in a group through her church. Knowing that running is not a protected class, Rosie displays her knowledge in the interview of the prospect. Ultimately, Rosie chooses to hire someone else and the applicant files an EEOC charge claiming religious discrimination and relying on what Rosie must have found on the Internet. Has Rosie done anything wrong? Yes and maybe. Rosie should not Google applicants or at least she should not tell the applicants what she finds. If she did not feel the need to show off her knowledge, the applicant may have never known she looked. As to discrimination, it will be up to the EEOC and a jury to decide – after Rosie spends thousands on the assistance of counsel.

Hanukkah vs. Christmas: Michael is Jewish and a faithful adherent to all Jewish holy days. His employer, like so many companies, closes for Christmas, not Hanukkah. Michael requests that the company allow him to be off in celebration of Hanukkah and other Jewish holy days. The employer offers Michael the opportunity to take those days off without pay as a reasonable accommodation to his request. Michael, in turn, offers to work over Christmas to make up some of that time. His employer agrees. All is well. However, what happens if the company’s closure for Christmas prevents Michael from doing his job? Must the company pay Michael for his time off? Generally, no. It is considered reasonable accommodation to allow employees unpaid leave (or the use of vacation) during those days if the company is closed over Christmas.

What Should I Do:

Good: Count up your workers every few months to know whether the law applies to you. Once you have more than 15 workers, institute an anti-discrimination policy including religious discrimination.

Better: In addition to developing a policy, control who is permitted to interview and make material decisions about employees to be sure they are aware of the concerns of religious and other discrimination.

Best: In addition to the items above, create job descriptions for each position. Use the job descriptions to prepare advertisements for positions, to ask objective interview questions, and to create a uniform and objective performance review system to avoid accidentally discriminating against someone based on religion.