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Employee claims of religious discrimination have climbed as the U.S. and workers’ expressions of faith have grown more diverse, creating legal headaches for companies and exposing the complexities of managing religion on the job.
Companies big and small are being affected by the complex intermixing of work and faith. The trend toward a seven-day workweek sometimes treads on the Sabbath. Religious garb and grooming clash with dress codes. Job duties that intersect with changing public policies—for instance, issuing a marriage license to a gay couple—test some workers’ adherence to their religious beliefs.
The claims workers file with the Equal Employment Opportunity Commission can be surprisingly wide ranging. One recent EEOC lawsuit based on a worker claim involves a trucking company with Muslim drivers who objected to delivering alcohol because of their Islamic faith. Another suit, filed last month, involves biometric hand-scanning technology: An evangelical Christian employee at a mine opposed the scanning based on a Bible passage stating that the antichrist will force people to receive his mark on their hand or forehead.
Experts on religion and the law attribute the rising conflict to immigration, a more open discussion of religion and workers’ growing assertiveness. Diversity combines with “an increasing willingness of people to raise an issue” when, for instance, they believe an employer won’t let them practice their religion, says Joyce Dubensky, chief executive of the Tanenbaum Center for Interreligious Understanding, a secular organization in New York that studies diversity.
Compared with claims of age, sex, race and disability discrimination, religion-based complaints are still a small portion of the workplace-bias complaints, known as charges, that the Equal Employment Opportunity Commission receives. But they have more than doubled over the past 15 years and have grown at a faster clip.
The EEOC received 3,811 religion-based complaints in fiscal 2012, the second-highest level ever and just below the record 4,151 in 2011. By comparison, complaints involving race or sex each totaled more than 30,000 in 2012. The agency says it tries to resolve the complaints before filing suits on a worker’s behalf.
While the overall numbers are relatively low, Ms. Dubensky says she believes religious discrimination is under reported. “Many people are afraid that reporting it will negatively affect their careers and others are unaware of their rights,” she says.
The religion-based disputes can be complex, says Jeanne Goldberg, senior attorney adviser with the EEOC. “There are endless twists and turns.”
Part of the surge comes from employees—Muslims, Christians, Seventh-Day Adventists and others—who were denied requests to avoid work on Sabbath days. Conflicts also have erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.
Workers say managers have unlawfully told them not to wear hijabs, which are the head scarves worn by many Muslim women; long skirts prevalent among Christian Pentecostal women; beards or turbans often worn by Sikhs; and religious piercings and tattoos.
Over the past several years, the EEOC has filed religious-discrimination lawsuits against companies in the fast-food, hair-salon, aviation, hotel, retail, medical and health-services industries. Many employers have settled, including Wal-Mart Stores Inc.WMT -0.11% and clothing chain Abercrombie & Fitch Co., generally paying tens of thousands of dollars to a worker and conducting religious discrimination training even if they deny wrongdoing.
Last month Abercrombie agreed to pay $71,000 to two Muslim women to settle EEOC lawsuits involving their hijabs. One case involved a woman, Umme-Hani Khan, who was fired after a manager said her hijab violated the company’s “Look Policy” dress code. The other discrimination suit alleged that Abercrombie refused to hire an applicant who wore a hijab. The combined settlement followed separate rulings against Abercrombie in federal court in California.
The EEOC doesn’t win every fight. In a separate EEOC case alleging that Abercrombie didn’t hire an applicant because she wears a hijab, a federal court sided with the EEOC, but the federal appeals court in Denver overturned the ruling. The appeals court said the applicant, who wore a hijab to her interview, hadn’t told Abercrombie she wore the scarf because of religious beliefs and hadn’t informed the company she would need an accommodation because the scarf conflicted with the dress code.
EEOC spokeswoman Kimberly Smith-Brown said, “we are disappointed over the ruling and considering our next steps.”
Abercrombie said it is “pleased” the court agreed that “in this case we believed that no request was ever made.” In a written statement, Abercrombie said, “We are happy that all of the hijab cases have now been resolved.” It said the company “does not discriminate based on religion,” and grants “reasonable accommodations when they are requested, including requests to wear hijabs.”
Under the settlement, it will establish an appeals process for accommodation requests that are denied, inform applicants that exceptions to its “Look Policy” may be available, and discuss head scarves during manager training, the EEOC said. Abercrombie must also regularly review its religious accommodation decisions to ensure they are consistent and report to the EEOC twice a year, the agency said.
The overall rise in complaints is raising questions about how far religious liberties should extend. Hiram Sasser, litigation director for the conservative Liberty Institute, a Plano, Texas, organization that defends religious freedom, said the law is clear: “Your religious liberty extends all the way to the point of it creating an ‘undue hardship’ in business.”
Title VII of the Civil Rights Act of 1964 generally forbids considering religion in making employment decisions and requires employers to reasonably accommodate workers’ religion-based requests—as long as it doesn’t cause an undue hardship.
But when it comes to defining undue hardship, Mr. Sasser and other lawyers say, the details are tricky and the burden of proof is on the employer. It is loosely defined as resulting in more than minimal costs or burden to accommodate a worker, which includes causing drops in efficiency or safety, burdening other employees or incurring certain expenses, according to federal regulations and EEOC guidelines.
However, the EEOC’s guidelines lack specifics. Decisions “must be made by considering the particular factual context of each case,” the guidelines say.
In May, the EEOC sued Star Transport Inc. alleging that the trucking company fired two Muslim employees who refused to deliver alcohol. The agency said its investigation showed the two could have been assigned to deliver other products without undue hardship. The suit is pending. Star Transport, a closely held company in Morton, Ill., didn’t respond to requests for comment.
Accommodations can include flexible schedules, shift swapping or reassignment to another job or department. The costs of rearranging schedules and occasionally paying overtime generally don’t constitute hardship. Regularly paying overtime or a need to hire more workers generally do constitute hardship.
The size of a business can matter. In its guidance, the EEOC says an employer with multiple facilities might be more able to accommodate a worker who requests a transfer to a location with a nearby place of worship to attend during lunch.
Cost isn’t always the issue. Sometimes workers ask employers to designate space or time to pray at the office.
What is clear is that employers’ concern about customer reactions isn’t a legal defense, though some companies mistakenly think so, said Ms. Goldberg, of the EEOC. “It’s a 40-year-old legal precedent,” she said.
She also said that in trying to be fair, managers might be breaking the law because “from a nondiscrimination standpoint, a lot of managers have been taught: Treat everybody the same.” Employees must also be flexible, and their beliefs must be genuine, which could be hard to prove or disprove.
Some experts believe that often there must be a substantial cost or inconvenience for a company to refuse to accommodate an employee. “If you are a company that has a 10-person department and they all want to take off for their Sabbath, and it would put your business under, you can tell them it’s an undue hardship,” said Mr. Sasser.
Late last month, the EEOC sued Consol Energy Inc. CNX +0.24% and its Consolidation Coal unit in Canonsburg, Pa., in the case involving the worker who objected to biometric hand scanning based on a Bible passage warning against the mark of the antichrist. The scanner was used to track workers’ time, the EEOC said. In the suit, the EEOC alleged that the company didn’t accommodate the employee and said that he was pushed to retire, even though the company had made exceptions for two others with missing fingers.
Consol Energy wouldn’t comment specifically on pending litigation but said the company respects “our employees’ rights to their sincerely held religious beliefs.” The company said it installed the scanners at several mines to ensure accurate compensation of workers, and makes “reasonable accommodations” when it is “appropriate.”
Last year, Wal-Mart agreed to pay $70,000 and to train human-resource staff to settle an EEOC lawsuit alleging that Richard Nichols, a Mormon and an assistant manager at Wal-Mart’s Colville, Wash., store, was disciplined and threatened with firing for refusing to work on Sundays, his Sabbath.
For 14 years, the company, based in Bentonville, Ark., had granted Mr. Nichols Sundays off but stopped in 2009 when Wal-Mart revised its scheduling system, the EEOC said. The company started logging him absent on the Sundays when he didn’t show up because he was unable to swap shifts with others, the agency said.
Spokesman Randy Hargrove said Wal-Mart “has a long-standing practice of accommodating our associates’ religious beliefs and practices” and followed EEOC guidance. He said Mr. Nichols stopped trying to swap shifts and didn’t show up when scheduled on Sundays.
“We refute that we disciplined him or threatened to terminate him,” Mr. Hargrove said.
Mr. Nichols said Wal-Mart made it difficult for him to swap and that he gave advance notice when he wasn’t able to switch. “I couldn’t swap with a cart pusher,” said Mr. Nichols, now 68, who no longer works for Wal-Mart.
Despite a rise in complaints, the EEOC has filed fewer religion-based lawsuits in the past few years as it pushes to resolve complaints at earlier stages and educate employers. The agency filed nine lawsuits in fiscal 2012, which ended Sept. 30, 2012, the latest annual statistics available. That was down from 15 the year before and 24 in fiscal 2010. The suits and the settlements, which often require training, serve “as a teaching example for other employers,” Ms. Goldberg said.
Religious charges involving Muslims remain relatively high after surging following the Sept. 11 terrorist attacks. Complaints doubled in fiscal 2002 from the year before, jumping to 28% of the total religious complaints from 15.5%. Muslims represent less than 1% of U.S. residents. The EEOC has accused some employers of illegally ignoring harassment, including physical abuse and taunts, such as “camel jockey” and “terrorist.”
Article by Melanie Trottman, visit: www.Online.WSJ.com
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