The number of religious discrimination claims filed with the Equal Employment Opportunity Commission continues to increase.

Since 2001, the number of claims filed with the federal agency has jumped 16 percent -totaling 2,466 in 2004.

Lawyers are also seeing more suits.

“I’ve been doing this for 12 years and I didn’t have a single religious discrimination case until 2001,” said Bret A. Cohen, an employment litigator at Mintz Levin in Boston. But now “I’m seeing a lot of claims.”

Chicago attorney Deanne Snedeker Medina, who practices with the firm Maduff, Medina & Maduff, has also seen an increase in claims post-Sept. 11, many by plaintiffs of Middle Eastern descent.

The law requires employers to make accommodations as long as this does not create an undue hardship. However, this can put companies in the difficult position of attempting to accommodate Employee A without stepping on the rights of Employee B. For example, if Employee A wants to express his or her faith and Employee B is offended, or if Employee A asks to leave work early to celebrate the Sabbath, forcing Employee B to work late.

Employment lawyers say that some accommodations are easy to make. But if an employer thinks that a requested accommodation would create an undue hardship, there are steps that can be taken to help avoid litigation, or at least bolster the case in the event it ends up in front of a jury.
Common Claims

The most common claims involve requested accommodations for religious holidays and exceptions from appearance rules, such as a requirement that men be clean-shaven or prohibitions on wearing head coverings for women.

Westlake Village, Calif., attorney Alan J. Reinach, president of the Seventh-Day Adventist Church State Council, handles approximately 150 cases per year for church members and is copied on countless more letters to employers seeking scheduling accommodations for members, who observe the Sabbath from sundown Friday until sundown Saturday.

“That’s the issue we get involved with over and over and over again,” he said.

Another category of cases concerns employees who claim they are being harassed because of their religion.

Cohen is currently handling a case in which employees are accused of making disparaging comments to a Middle Eastern co-worker, including nicknaming him “the Taliban,” and telling him, “I don’t want your camel tied up next to my car.”

A third species of claim involves employees who insist on their right to promote religion in the office.

In a recent example, the 9th Circuit held that Hewlett Packard could not be sued for religious discrimination by an employee who was fired for posting anti-gay biblical passages in his cubicle. The employee, a devout Christian, put up the verses to protest corporate diversity posters that included a picture of a gay employee. (Peterson v. Hewlett-Packard Co., 358 F.3d 599 (2004).)

Another case involved a woman who was fired for writing letters to company personnel at home accusing them of being sinners and encouraging them to give their lives over to Jesus Christ. The employee was upset co-workers had made promises to a customer about the delivery of a product that she was certain the company could not keep. The 4th Circuit upheld the termination. (Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (1996.)

Proselytizing in the workplace presents “the intersection between employees who like to practice their religion and other employees’ rights to work in an environment free from religious practice or coercion,” said Ann Kiernan, an attorney and trainer with Fair Measures, a provider of management training headquartered in Santa Cruz, Calif.

What’s clear, said lawyers, is that the promotion of religion does not have to be accommodated if it reaches the level of harassment.

“If complaints come in about somebody proselytizing, then management needs to talk to that person and say, ‘Look, you have every right to believe and the right to talk about it, but if your talking about it becomes unwanted and offensive to co-workers, you have to stop,'” said Reinach.

“Religious discrimination law applies to those who believe and those who don’t believe,” added Kiernan. “Agnostics and atheists are also protected.”
Lack of Sensitivity?

Some lawyers suggest that these claims are on the rise because employers and managers aren’t as sensitive to the need to make religious accommodations as they are in other areas.

“If you have a disability and you’re asking for an accommodation, then I think employers are more [likely] to accommodate,” said Medina. “There doesn’t seem to be as big a deal if you are in a wheelchair and need a certain kind of desk” as there is if an employee needs to leave early, have a break scheduled at a certain time, or take specific days off to observe religious occasions.

There can also be a perception on the employer’s part that accommodating one employee will open the floodgates to accommodation requests from every employee, according to Reinach.

He noted that some employers have the attitude that they’re the boss and they’ll tell employees when to work – not the other way around.

In addition, even though these claims are growing, their infrequency in comparison to race or sex discrimination suits may help keep them off many employers’ radar.

Reinach recalled the deposition of a human resources manager for which he printed and pointed out the religious discrimination policy in the employee manual. She still spent a full five minutes leafing through the manual and eventually testified that she did not know what the company’s policy was.
Accommodations Can Be Easy

In many cases, giving an employee a requested accommodation for a sincerely held religious belief is easy and costless – and if that’s the case, the law requires that it be granted.

For example, breaks and lunch hours for Muslim employees can be scheduled to coincide with their prayer times, three of the five of which occur during the regular work day. Companies are often able to find a private office or other room in which employees can unroll their carpets and pray while kneeling, noted Kiernan.

Or, if a Christian employee wants to wear a cross and the employer fears that may be distracting, perhaps it could be worn inside a blouse or shirt, Reinach suggested.

Employers can arrive at these solutions by using an interactive process, just as they would in determining the type of accommodation needed by a disabled employee.

An employer should ask what type of religious accommodation is needed and how often, and also ask the employee whether it’s possible to provide additional information from the religious organization about the need for accommodation, Cohen said.

The key, said Medina, is to engage in the process – the employer needs to present some options and an open dialogue between employer and employee needs to take place.

What employers can’t do is simply put the burden on employees to find their own accommodations. Reinach once worked with an airline employee who needed a religious accommodation, and management simply gave the employee a copy of the collective bargaining agreement and said to work within the system.

“Frankly, that’s not good enough,” he said.
When the Answer is ‘No’

If the employer and employee can’t reach agreement, the employer needs to decide if it is willing to refuse an accommodation and risk litigation.

“Sometimes the client says ‘yes,’ because it’s going to impact their business or create an undue hardship,” Cohen said.

Even if the religious belief is sincerely held, a company is not required to accommodate an employee if it creates an undue hardship. The key to protecting the employer from litigation is to carefully document the steps taken to reach that decision.

“If, for whatever reason, you really think that accommodation is going to be problematic, then you need to not just say so in a general sense, you need to carefully document why you think it would be problematic,” Reinach said. He said that while employers know to document a legitimate undue hardship under the ADA, they tend not to do the same for religious accommodations.

“Justification after the fact is dangerous for employers,” cautioned Reinach. “They don’t do well when they allege what the hardships would have been. It’s the hypothetical hardships that the courts are skeptical of.”

A determination of undue hardship can result in some employees being accommodated while others are not. For example, an assembly line may be able to cover two or three employees taking off during certain hours of the day for religious observance, but if there are many more, it could become impossible, Reinach said.

“The case law says that’s okay,” noted Medina. “But you can’t come in with the first person and say, ‘If we do it for you we have to do it for everybody.’ The employer has to show undue hardship.”

A complication that can sometimes arise is the existence of a collective bargaining agreement, said Cohen, because “then you have to deal with how if affects seniority issues.”

Companies may be concerned about getting hit with grievances from senior employees who do not need an accommodation but object to what they see as favorable treatment, or treatment that violates seniority rules.

Kiernan also emphasized the importance of keeping the human resources department in the loop, “to make sure you’re treating people consistently.”
What to Do if an Employee Complains

If a claim is filed with the human resources department, EEOC or state discrimination agency, Cohen suggested conducting a thorough investigation of the incidents that led to it. Talk to the employee who made the claim, anyone against whom allegations are made and other employees who may have been witnesses to, but not part of, the situation.

In addition, “I always counsel employers to make sure that they tell employees not to retaliate against the complaining employee,” because there has been an increase in the number of retaliation claims that courts have allowed to go forward even though the underlying claim of discrimination has been dismissed for lack of evidence, he said.

If enough is at stake, Cohen hires a third party to conduct an independent investigation. This is a good way to distance the company from the decision making, and if the case goes to trial, the investigator can be called to testify in an effort to show the employer did as much as possible to remedy the situation.

“Companies are not FBI-trained. They can do their best, but even companies with sophisticated HR departments may not get it right,” he said. “By hiring this third party to come in, they’re able to come to a conclusion the company can rely on.”

If there is truth to the allegation, the employer should take disciplinary action and “confirm that in writing, letting the accuser know what occurred,” Cohen said.

To prevent problems, employers should make sure any discrimination or harassment training covers religious discrimination as well. Cohen advises hiring third parties here too, because if a situation arises after the training they can be called to testify about what was covered and who was present.
Workplace Religious Freedom Act

Leaders from four dozen churches are attempting again this year to win passage of the Workplace Religious Freedom Act, which would redefine reasonable accommodation and undue hardship.

The same legislation was introduced in the last session of Congress, but died. The Senate version has been referred to the Committee on Health, Education, Labor, and Pensions, where it is not currently scheduled for a hearing. The House version has been referred to the Committee on Education and the Workforce and also awaits a hearing.

One of the act’s main provisions would define “undue hardship” as an accommodation requiring “significant difficulty or expense,” as is required under the ADA. To determine whether an accommodation requires significant difficulty or expense, the cost of the accommodation and the financial resources and size of the employer would need to be considered, among other things.

The Senate bill is S. 677, sponsored by Sen. Rick Santorum, R-Penn. The House bill is H.R. 1445, sponsored by Rep. Mark Souder, R-Ind.

You can read both bills in the “important documents” page of New England In-House’s website, www.newenglandbizlawupdate.com.

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