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Keeping the Faith
With the increasing sophistication of legal requirements, employers today have many new things to worry about. Among them is the need to manage the possible conflict between some employees' desires to integrate faith and religious expressions into the workplace and others' feelings of being offended by proselytizing, prayer groups or other religious displays. How best to manage an employee who refuses to cover a tattoo because to do so goes against his religion is not an easy question and, not surprisingly, it does not yield clear answers.
Both Title VII and Oregon's anti-discrimination statutes prohibit discriminating against workers based on religion and require reasonable accommodation of religious beliefs and practices. Since 9/11, interest in integrating faith at work has increased. In fact, since then, claims of religious discrimination have recently increased by more than 50%. In 2007, the EEOC received 2,880 charges of religious discrimination and settled 2,525 cases, recovering $6.4 million.
One large, regional and progressive employer recently learned an expensive lesson about just how far the religious discrimination protection extends.
The Wiccan at Work
Alicia Hedum worked as a barista for Starbucks in Oregon. According to her employer, she was an employee with an attendance problem. She was given seven "corrective action notices" before she was discharged for not showing up for a scheduled shift.
After she was terminated, Hedum sued Starbucks, claiming she was fired based on the Company's discrimination toward her Wiccan faith. Hedum claimed that she routinely wore a necklace bearing a Wiccan symbol, and that her manager made repeated, disparaging remarks about the Wiccan religion and about her necklace specifically. Hedum disputed Starbucks' concerns about her attendance and asserted that this was merely pretext to cover up discriminatory bias.
The Analysis of the Court
Early in the case, Starbucks filed a motion for summary judgment, asking the trial court to dismiss Hedum's claims for lack of merit. Hedum disagreed and argued that a jury should hear her claims. Ultimately, the trial court agreed with Hedum and denied Starbucks's motion.
In explaining its decision, the court conceded that Hedum's punctuality problem could be a legitimate reason for discharge, but it also pointed out that there was direct evidence of discrimination in the form of alleged disparaging remarks from Hedum's supervisor about her religion. In addition, there were other reasons to question the motivation behind the discharge. For example, the firing manager knew of only three, not seven, of the disciplinary notices. This suggests that the situation was not as grave as Starbucks claimed.
The lessons for employers flowing from this and other recent religious discrimination cases emphasize some common themes:
First, this case reminds us that overstating the reason for discharge may backfire, as it did here. The solution lies in being clear about what the decision-maker knew at the time of the decision and not piling on other reasons learned after the fact.
Second, we see how employees can effectively use the absence of similar treatment of people who are different, e.g., Christians, to draw the legitimacy of a termination into doubt. The solution is to remember that discrimination and retaliation cases often turn on comparisons or past practices. There will always be firsts, but handling these in a way that is consistent with the company's practice of fair and equitable treatment will go a long way toward defeating this employee argument.
Third, selective enforcement of a policy, such as a dress code, may be offered by an employee as evidence of discriminatory bias. This may be the most powerful evidence a plaintiff can offer as it may show differential treatment based on what appears to be religious differences.
Practical Application/Best Practices
The EEOC has created a list of best practices to help employers as they navigate around issues of religious accommodation requests or disciplining an employee who brings his religion to work:
- Any dress code implemented by an employer should be neutral with respect to all religions (e.g. an employer may ban all jewelry, but not pentagrams only).
- Employers should have a discipline policy and practice that creates corrective action in proportion to the underlying conduct or violation.
- Employers must take steps to prevent religious harassment by supervisors and co-workers.
- Employers must reasonably accommodate employees' sincerely held religious practices (including religious expression) unless doing so would impose an undue hardship on the employer's business interest. See our sample accommodation form.
- Employers should implement a religious accommodation policy and provide training to supervisory/management employees to carry out such a policy.
The full guidance document may be found at http://www.eeoc.gov/types/religion.html.
As outlined above, due to increased religious expression in the workplace, it is imperative that employers understand state and federal law in connection with religious discrimination, accommodation, harassment and retaliation. If you would like assistance navigating this rapidly evolving area of employment law, please contact the Dunn Carney labor and employment law team.
Thank you to Kelly J. Martin for contributing to this article.
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