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Robin Israel

October 4, 2012
Title VII


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1
Religious Discrimination Claims Filed
Religious Discrimination
Claims Filed
http://www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm

1997 — $ 2.2 million

2011 — $ 12.6 million


http://www.eeoc.gov/eeoc/statistics/enforcement/religion.cfm
1964--Civil Rights Act passed
EEOC created
Title VII included

Section 703(a) made it unlawful for an employer to "fail or refuse to
hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions or privileges or employment, because of such individual's
race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2

1966--Guidelines on Religious Discrimination developed

1970--Guidelines on National Origin Discrimination developed
http://www.eeoc.gov/eeoc/history/35th/history/index.html
Year 1:
*Applied to employers with 100 or more employees, with plans
for employers with as few as 25 employees to be phased in
within the next three years
*Applied to private employers, labor unions and employment
agencies
*Did not apply to any government employers or educational
institutions
*EEOC did not have authority to file lawsuits against employers
on its own

http://www.eeoc.gov/eeoc/history/35th/history/index.html
All employers, regardless of size, are prohibited from
discriminating on the basis of religion under the U.S. Civil
Rights Act.
False - Religious institutions are exempt
from certain provisions of the act.
• Religious organizations may give hiring preference to people who
share their own religion.
• Religious organizations may only show preference in regards to
religion and not in regards to race, color, national origin, sex, age, or
disability.

1. Religious discrimination involves treating a
person unfavorably because of his or her
religious beliefs.
2. Religion: Moral or ethical beliefs as to right and
wrong that are sincerely held with the strength
of traditional religious views. EEOC will not
determine what is or is not a religion.
3. Discrimination: May affect any part of work,
including recruitment, hiring, firing, pay, job
assignments, promotions, layoff, training,
benefits, and any other term or condition of
employment.
* Employers may not treat employees more or less
favorably because of their religion.
* Employees cannot be required to participate or to
refrain from participating in a religious activity as a
condition of employment.
* Employers must reasonably accommodate
employees' sincerely held religious practices unless
doing so would impose an undue hardship on the
employer.
* Employers must take steps to prevent religious
harassment of their employees.
* Employers may not retaliate against employees for
asserting rights under Title VII.








http://www.adl.org/religious_freedom/resource_kit/religion_workplace.asp
Different Treatment
Harassment:
Quid pro quo
Hostility
Proselytizing
Denying Reasonable Accommodation
Segregation
Retaliating
A co-worker occasionally teases a Muslim employee about her
hijab. Although the Muslim employee is offended and tells her
colleague to stop, she continues to work productively and does not
report it because the company has no reporting process in place.
Hostile work environment?
Probably not.
Later, a manager begins to constantly criticize her for wearing the
hijab, and, as a consequence of his disapproval of her wearing it,
moves her into a lower-paying back office position.
Hostile work environment?
Constant criticism from the manager may meet the “severe or
pervasive” test, giving rise to a hostile environment.
Probably yes…
Additionally, there was a clear adverse employment
action based on her religious clothing.
(segregation)

• When a supervisor’s harassment results in adverse employment action
• When an employer knew or should have known about harassment and
failed to take prompt corrective action
• This applies to harassment from employees and non-employees



Avoiding Liability

Employer must show:
• Reasonable care in preventing and correcting the harassment
• The employee unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the employer, or to avoid
harm otherwise

• Title VII deals primarily with speech and action
• Not an invisible system that is difficult to define
• Implicit bias can be successfully claimed
• Harvard survey on implicit bias
https://implicit.harvard.edu/implicit/demo/takeatest.html

"I was taught to see [discrimination] only in individual acts of meanness,
not in invisible systems conferring dominance on my group.“

That’s not a real religion.
Everyone has to make choices.
Those beliefs don’t make sense.
He’s really religious and this job would make it too hard for him to
practice his religion.
He doesn’t really believe that.
She’s not that observant of her religion.
The customers would be nervous around him.
We need to treat everyone the same or everyone will start asking
for exceptions.
Other employees would resent the accommodation.
The most common requests:
• Schedule changes, shift swaps
• Dress code and grooming standard alteration
• Religious symbols in personal work space

Define the accommodation so it meets the need
• John needs to be home before sunset on Fridays
Option B:
“John, let’s make a schedule so
there’s no confusion.”
“Does this work for you?”

Option A:
“Okay, John, do whatever you have
to do.”
“Let people know when you’re out.”
 Option B: Better for John
and the organization.
a. A Jewish employee who asks not to be scheduled for work on
Saturdays, even though he admits that he rarely attends synagogue.
b. A female employee who claims that derogatory comments are
continually made about her role in her marriage because her husband is
Hindi.
c. A group of employees who want to bring in a yoga instructor to help
them cope with job-related stress.
d. An atheist who claims she is ridiculed for her beliefs by a religious
co-worker.
e. A Muslim Palestinian who insists that he must be allowed to pray five
times a day.
C
Coping with job-related stress

Are there legitimate reasons for denying reasonable accommodation?
Safety issues
Loss of productivity
The identifiable cost
Other forms of undue hardship
Infringing on other employees rights
When you have to deny reasonable accommodation, let HR handle it.
* Assume the request is in earnest
“Moral or ethical beliefs as to what is right and wrong”
“Sincerely held”
Concerned with “ultimate ideas about life, purpose or death
* Understand what the issue is about
* Do the best you can to say yes, but check with HR before making a
commitment!
* Check your bias
* Define the accommodation
* Don’t treat someone differently after the request

1. Establish written objective criteria for evaluating candidates for
hire or promotion
2. Carefully and promptly record the accurate business reasons for
disciplinary or performance-related actions and share these reasons
with the affected employee
3. Provide training to managers on religious discrimination issues and
encourage them to consult human resources personnel when
addressing difficult issues
4. Immediately intervene when aware of potentially abusive or
insulting conduct, even when there isn’t a complaint
5. Develop a policy on harassment
6. Establish procedures for registering a complaint

http://www.eeoc.gov/policy/docs/best_practices_religion.html

A Religious Discrimination policy should:
1. Address religious harassment
2. Clearly explain what is prohibited
3. Describe procedures for bringing harassment issues to
management’s attention
4. Provide an assurance that employees registering complaints will
be protected from retaliation
Procedures should include:
1. Multiple avenues for complaint
2. Prompt, thorough, and impartial investigation
3. Prompt and appropriate corrective action
http://www.eeoc.gov/policy/docs/best_practices_religion.html

Omnia has worked in the organization
longer and has management experience.
Plus, her productivity and reviews are
always exceptional. She doesn’t
understand why she wasn’t offered the
position.
“I never said I can’t work on Friday
afternoons and evenings!”


“Well, if my job depended on it, I could
work.”
Gresa is really impressed with Omnia and
considered her for the position, but she knows
Omnia can’t work on Friday afternoons and
the position requires the manager to work
late into the evening on Fridays—no way out
of the Friday schedule.

“But you requested a religious
accommodation to have Friday afternoons
off.”

“Then why do you need an accommodation?
You can’t have it both ways.”
Gresa had the opportunity to promote one of her staff to a well-paid new
assistant manager position. Gresa selected Nate. Omnia is upset.
What could Gresa have done differently?



http://www.hrrapidlearning.com/
http://www.adl.org/religious_freedom
http://www.aclu.org/using-religion-discriminate
http://www.eeoc.gov
http://www.isr.umich.edu/home/diversity/resources/white
-privilege.pdf