Mar 03, 2014

Changes, Changes, Changes!

By: Paul Ebeltoft

Dickinson is changing. So are we. We Are Moving! As of March 24, 2014, our address will be 2272 Eighth Street West, Dickinson, ND 58601. The address is a little deceiving and it is not yet on Google Maps (another piece of evidence, if we needed it, of the pace of change here). Our new office building is at the corner of Fairway Street and 23rd Avenue West, Dickinson, across the street from the West River Community Center and kitty-corner to the new St. Joseph’s hospital. The beautiful landscaping will not be done until late spring but we are all excited about our prairie style building with wide eaves, strong horizontal lines and open air patio spaces. You will like its sleek, modern interior, too. Please visit us. I would love to show you around.

Change also changes the issues HR professionals face

North Dakota is changing, too. That’s not news. Many people fear change. That is not a news flash either. What might be news for your business is how to accommodate some of the diversity that change brings.

On March 6, 2014, partially in response to a doubling of charges of religious discrimination over recent years, the Equal Employment Opportunity Commission (EEOC) republished its “practical guide” to some aspects of religious accommodation in the workplace. For HR professionals working for businesses with 15 or more employees, this is worthwhile reading. I will summarize some of it here.

What practice, belief or observance is protected by Title VII?

All of them. Not only are traditional, organized religious beliefs protected but even those “only subscribed to by a small number of people, or [that] may seem illogical or unreasonable to others.” EEOC’s guidance contains one sentence that sums up the reach of protection. “Because this definition is so broad, whether or not a practice or belief is religious typically is not disputed in Title VII religious discrimination cases.” In other words, “But, that’s not a religion,” is not a viable defense.

Is there any limit on a belief that must be accommodated?

Yes, but it is not very helpful. The standard for Title VII protection is whether the belief is “sincerely held.” Last week, the EEOC reminded employers that an “individual's religious beliefs - or degree of adherence - may change over time, yet may nevertheless be sincerely held.” So, just because your employee adopts a new religious practice last week and wants accommodation for it this week is not a basis for denial of the accommodation. Similarly, just because a religious practice occurs irregularly, on a schedule that you cannot easily ascertain, does not deny it protection.

Can an employer ever challenge
whether an employee’s asserted religious belief is sincere?

Yes, but only very, very carefully. If a supervisor comes to HR questioning the sincerity of a person’s religious belief and the need to accommodate a religious-based practice HR must first probe the reason for the supervisor’s skepticism. There must be a “legitimate reason” for further inquiry. Even after the new EEOC guidance, it is easier to describe what is not a legitimate reason for further inquiry than what is. Suspicion based on knowing that the employee is not a part of a formal religious movement or organization is not a legitimate reason to question sincerity of belief. That other members of the same sect do not follow a particular practice is not a legitimate reason to question sincerity of belief. The guidance offered by the EEOC contains this warning: “like the ‘religious’ nature of a belief or practice, the ‘sincerity’ of an employee's stated religious belief is usually not in dispute in religious discrimination cases.”

Should you find that your supervisor has personally overheard the employee who requested religious accommodation joking in the break room about “putting one over on the company” by making up a phony religion, HR likely has a basis to inquire. However, you must enquire of the applicant or employee only. Even then, HR may only request information reasonably needed to evaluate the employee’s request for religious accommodation.

If your company accepts all religious beliefs and practices, but your customers do not, can you make sure that your customers have contact only with employees with traditional belief systems?

No. Customer or client preferences are not a lawful basis for employment decisions. If you refuse to hire a counter worker who otherwise has the experience and qualifications needed because her religious garb would upset your clientele, you have violated Title VII. It is also a violation if you assign a worker to a non-customer contact position because the company fears customer reaction to religious garb, grooming or worn symbols. However, HR should know how to help guide the company to use other specific experience, qualifications, and other objective, non-discriminatory factors when making employment decisions. HR should also be aware that the employee may cover attire or a religious symbol if the belief system allows it to be covered.

We have uniforms. Can we require all employees to wear the uniform even if it violates someone’s faith?

Not usually. When a company’s policy or preference conflicts with an employee's religious practices, the company must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer's business. Exceptions to a uniform dress policy as a religious accommodation is usually not a cost or burden on the operation of the business.

Can a company be liable for religious intolerance if it is the acts of
co-workers or third parties that is wrongful?

Yes, if the company knew or should have known of the conduct and failed to take prompt and corrective action. Title VII protects against harassing conduct. This conduct includes offensive remarks about a person's religious beliefs or practices, or verbal or physical mistreatment that is motivated by the victim's religious beliefs or practices. Simple teasing, offhand comments, or isolated incidents that are not serious in nature are usually not considered harassing behavior, but tolerance of them creates an atmosphere of acceptability that is misleading to employees, customers and others. It is frequently the case that what starts as “fun” in the work place turns into ugly and actionable misconduct over time.

HR knows how to prevent this kind of conduct. The trick is often to convince supervisors and owners that training coupled with clear and effective policies prohibiting ethnic and religious slurs and stereotyping is worth the effort. It is. Ask Redding, California-based Sierra Pacific Industries, which owns and harvests forests in California and Washington. It paid $95,000 to settle an EEOC complaint when coworkers started calling an employee of Egyptian origin "Osama" or "f---ing Arabian" and "camel jockey." Or, ask Swift Aviation Services, Inc., a Phoenix, Arizona-based aeronautical services company. It paid $50,000 last year for comments to a worker of Turkish origin such as, "I don't know why we don't just kill all them towelheads"; or why are you "dressed like [he was] gonna blow up the World Trade Center.”

Yes, a little investment in policy and training can save a lot of heartache for employees or other faiths and a lot of time for HR. If you cannot sell ongoing tolerance training to your boss because it is the right thing to do, perhaps saving a lot of money for you company will be adequate incentive. If you need more true stories about the consequences of religious intolerance, let me know. Sadly, I have them.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@ndlaw.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the March, 2014 Southwest Area Human Resource Association newsletter.