Elimination of Bias in the Legal Profession:
Accommodating Religion in the Workplace
By Gregory Alan Rutchik, Esq.
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SCENARIO ONE:
In April of 199X, Peter lost his technology review job at the Commerce Department's Patent and Trademark Office, and was denied the opportunity to be rehired at a PTO job fair. Soon after, he filed a complaint with the Commerce Department, alleging that the agency discriminated against him based on his unconventional beliefs about cold fusion and related technologies. Cold fusion is a controversial scientific theory which holds that nuclear fusion reactions can occur at room temperature. The Commerce Department dismissed Peter’s claim, stating that the alleged discrimination “did not fall under protected equal employment opportunity activity.”
Peter filed an appeal with the Equal Employment Opportunity Commission(“EEOC”). He argued that "discrimination against a person on account of his beliefs is the essence of discrimination on the basis of religion" pursuant to Title VII of the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964prohibits discrimination on the basis of race, color, religion, sex, and national origin. The EEOC agreed with Peter, citing the Supreme Court case Welsh v.United States, 398 U.S. 333 (1970), which held that an individual's beliefs are protected under Title VII if the belief espoused is sincerely held and has religious meaning to the individual.
The EEOC has consistently applied the Welsh standard in its decisions. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase “religious practice” as used in these Guidelines includes both religious observances and practices, as stated in §701(j), 42 U.S.C. 2000e(j).
SCENARIO TWO:
An employer hires a salesman who is a member of an evangelical church where the employer is also a member. When the salesman leaves the evangelical church, the employer fires her with a termination letter saying "The Bible tells us that she had spiritual problems even though she was let go strictly for secular reasons."
SCENARIO THREE:
An attorney, Jenkins, working at a large law firm, was continually harassed by his direct supervisor in regards to his lapse in the Christian faith. Jenkins endured almost daily badgering from his direct supervisor, Franklin, either verbally, or through email exchanges regarding his abandonment of the Christian faith. Jenkins alleged Franklin passed him over for advancement to higher profile cases due to Franklin's distain for Jenkins' choice not to continue on the path of a Christian lifestyle. After transfer to the supervision of another senior attorney, Marks, Jenkins performed satisfactorily under the direction of his new supervisor, but was still placed on performance review based on past unsatisfactory reports received in his former work group. While passing the technical components of the performance review Jenkins was subsequently dismissed based on his lack of leadership skills, consistency, initiative, and responsibility skills. At the time of Jenkins' termination he alleges that his current supervisor told him "Franklin's activities have caused this termination; you should have done something about Franklin's harassment long ago."
Jenkins alleges that the religious discrimination directed at him by Franklin ultimately lead to his termination. When filing under title VII, Jenkins accused both his law firm as well as both supervisors "individually and in their corporate capacity."
Overview of Article
This article will examine the Federal and California state regulatory schemes that prohibit employer discrimination on the basis of religion, including in the law office environment. An employer must be careful not to intentionally discriminate or provide disparate treatment based on religion, and cannot make employment decision based on religion. The cornerstone of Federal protection against workplace discrimination based on religion is Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin(42 U.S.C. 2000e et seq.).
Introductory Issues
Burden of Proof
The initial burden of proof in a Title VII case lies with the complainant. They first must establish a prima facie against all parties accused in the matter. In the case of Jenkins, he initially accused his direct supervisors: Franklin and Marks as well as the law firm he was employed by. Since Franklin and Marks were not partners in the firm they could not be accused in their "corporate capacity” (discussed below).
Hostile Environment
Discrimination under a "hostile environment applies to both sexual and religious discrimination cases under Title VII See Venters v. City of Delphi, 123 F.3d 956, 974-75 (7th Cir. 1997) (religious harassment); Jansen v. Packaging Corp., 123 F.3d 490, 493-94 (7th Cir. 1997) (sexual harassment), cert. granted sub nom. The reach of Title VII is not limited solely to discrimination that can be described as "economic" or "tangible". It extends to workplace harassment that is attributable to the plaintiff's sex, as well as to their religion See Compston v. Borden, Inc. 424 F. Supp. 157 (S.D. Ohio 1976).
Sexual harassment can occur in either or both of two forms: quid pro quo harassment and hostile environment harassment. Quid pro quo harassment occurs when the availability of the plaintiff to tangible employment benefits is conditioned upon her compliance with a harasser's sexual demands. E.g. Bryson v. Chicago State University 96 F. 3d 912, 915 (7th Cir. 1996).
Harassment under a "hostile environment" includes conduct that "has the purpose or effect unreasonable interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment." Meritor, 477 U.S. at 65, 106 S. Ct. at 2404-05, quoting 29 C.F.R. 1604.11 (a)(3) (1985).
Methods of Proof
Direct Method
Generally there are two methods of proof the plaintiff might use to prove their case and defeat an employer's motion for a summary judgment: the first is the "direct" method, under which the plaintiff may show (either through direct or circumstantial evidence) that the employer's decision to take the adverse job action was motivated by an impermissible purpose (race, sex, religious animosity, etc.). See Wallace v. SMC Pneumatics, Inc., 103 F. 3d 1394, 1397 (7th Cir. 1997); Troupe v. May Department Stores, 20 F. 3d 734, 736 (7th Cir. 1994)
Indirect Method
The second method of proof is the "indirect" method, under which the plaintiff introduces enough evidence through their prima facie case to give rise to a presumption of discrimination. See McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S Ct. 1817 (1973). If the plaintiff is able to succeed in meeting this burden of production, then the employer is forced to compose a legitimate, non-discriminatory reason for the action. If the employer is successful in doing this them to burden of proof shifts back to the employee to produce evidence that would show that the true reason for the employment action was discriminatory.
It is important to note that the indirect method is a difficult process in which to prove discrimination, due to the nature of the evidence collected being circumstantial. Therefore, the steps taken in the Mc Donnell Douglas case are essentially a helpful procedure for arriving at a solution, but not necessarily definitive proof. After all of the tools are used to generate as much proof as possible the important question to be answered is whether the employer would have taken the same action had it not been for the protected characteristic of the employee. This is where the usefulness of Mc Donnell Douglas comes in because it is able to provide a useful organizational structure under which the parties and the district court can assess the need for a full trial.
1) Intentional Discrimination under Title VII
Under Title VII it is illegal to discriminate in any aspect of employment, including: (i) hiring and firing; (ii) compensation, assignment, or classification of employees; (iii) transfer, promotion, layoff, or recall; (iv) job advertisements; (v) recruitment; (vi) testing; (vii) use of company facilities; (viii) training and apprenticeship programs; (ix) fringe benefits; (x) pay, retirement plans, and disability leave; or (xi) other terms and conditions of employment.
a) Other Discriminatory Practices
In addition, discriminatory practices under Title VII also includes:
· harassment on the basis of race, color, religion, sex, national origin, disability, or age;
· retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
· employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities; and
· denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability. Title VII also prohibits discrimination because of participation in schools or places of worship associated with a particular racial, ethnic, or religious group.
b) Religion under Title VII
Under Title VII, “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business. ”Title VII prohibits not only intentional discrimination, but also practices that have the effect of discriminating against individuals because of their race, color, national origin, religion, or sex. Because claims may be brought through the EEOC, as Peter did in Scenario One, and the saleswoman could in Scenario Two, one must be aware that its definition of religion is somewhat broader. The EEOC Guidelines state that protected religious practices "include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religiousviews." 29 C.F.R. § 1605.1.
i) Workplace Accommodation
An employer is often confronted with Title VII prohibited activity in response to an employee’s request to accommodate a specific religious practice such as wearing a head covering, leaving work early for the Sabbath, or individual workplace prayer. Pursuant to Title VII, an employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship. Reasonable accommodations have been found to include: (1) leave without pay or accrued paid leave; (2) job swaps between employees or a transfer to a new position; (3) temporary scheduling changes or shift swaps; and4) accommodating speech or proselytizing. In Brown v. Polk County, Iowa, 61F.3d 650 (8th Cir. 1995), the court found that there was no allowable employee discipline when statements made by the employee had no provable impact on other employees or the work of the office. However, an employer may not have to accommodate proselytizing if it interferes in operation of the business, impairs customer relations, or creates a hostile work environment.
a) Reasonable Accommodations
An employer could reasonably accommodate this employee by:
· offering flexible arrival and departure times
· allowing the employee to make up lost time due to religious observance
· offering floating or optional holidays
· allowing flexible work breaks
· allowing the use of lunchtime in exchange for early departure
· offering staggered work hours
ii) Undue Hardship
Under Title VII and interpretive case law, undue hardship can be found any time an employer has greater than de minimus costs which are actual and not speculative. The hardship is viewed relative to the size of the organization. Routine administrative costs are considered de minimus. Title VII has been generally interpreted so that the following per se unreasonable accommodations are equivalent to an undue hardship: (1) an accommodation requiring an employer to breach a seniority provision of collective bargaining; (2) an accommodation which causes other employees to suffer; (3) an accommodation that impairs work place safety; or (4) an accommodation that violates public law.
2) General Notice requirement
Employers are required to post notices to all employees advising them of their rights under the law. The EEOC enforces the right or employees to be free from retaliation. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading.
3) Scope
Title VII covers all state and local government employers, all private and public educational institutions, and all private employers of 15 or more individuals. It also covers private and public employment agencies, labor organizations with 15 or more members, and joint labor management committees controlling apprenticeship and training. Note that it does not apply to the Federal government as an employer. In addition, if a job requires certain skills and relates to central mission of job, Title VII discrimination is not found. This is known as the religion exemption.
4) Remedies:
A charge must be filed with EEOC before a private lawsuit may be filed in court. A charge may be filed by mail or in person at the nearest EEOC office. There are strict time limits within which charges must be filed. Specifically, a charging party must file a lawsuit within 90 days after receiving a notice of a "right to sue" from EEOC, as stated above. Under Title VII, a charging party also can request a notice of "right to sue" from EEOC 180 days after the charge is first filed with the Commission, and may then bring suit within 90 days after receiving this notice. The "relief" or remedies available for employment discrimination, whether caused by intentional acts or by practices that have a discriminatory effect, may include: (i) back pay; (ii) hiring; (iii) promotion; (iv) reinstatement; (v) front pay;(vi) reasonable accommodation; or (vii) other actions that will make an individual” whole" (brought back to the condition he or she would have been in but for the discrimination). Remedies also may include payment of attorneys' fees, expert witness fees, and court costs.
i) Damages
Under most EEOC-enforced laws, compensatory and punitive damages also may be available where intentional discrimination is found. Damages maybe available to compensate for actual monetary losses, for future monetary losses, and for mental anguish and inconvenience. Punitive damages also maybe available if an employer acted with malice or reckless indifference. Punitive damages are not available against the federal, state, or local governments.
ii) Statute of Limitations:
A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights. This 180-dayfiling deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law.
iii) Standing: Who Can File a Charge of Discrimination?
Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with EEOC. In addition, an individual, organization, or agency may file a charge on behalf of another person in order to protect the aggrieved person's identity.
5) Crossover with State Laws
California has anti-discrimination laws and agencies responsible for enforcing those laws. EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." Through the use of "work sharing agreements,"EEOC and the FEPAs avoid duplication of effort while at the same time ensuring that a charging party's rights are protected under both federal and state law. One California agency is the Fair Employment and Housing Agency.
California Full and equal accommodations
California protects individuals and employees ability to obtain “full and equal accommodations” in the workplace through various statutory schemes.
California Government Code § 12940.
Under California’s Government Code § 12940, it is an unlawful employment practice for a California employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
Any entity in violation of this provision may be pursued by California’s Department of Fair Employment and Housing and the State’s Attorney General, in addition to having a civil brought against them by the aggrieved party. (See §
12960.)
i) What accommodation is required in California?
The employer must show that it has explored any available reasonable alternative means of accommodating the religious belief of observance. Under12940 (l), it is unlawful “for an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person's religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with his or her religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business of the employer or other entity covered by this part.” (Emphasis added.)
ii) Scope of Religious Belief
Under California’s Government Code, "religious creed," "religion,” religious observance," "religious belief," and "creed" include all aspects of religious belief, observance, and practice. Religious belief or observance, abused in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, and reasonable time necessary for travel prior and subsequent to a religious observance.
iii) Definition of Employer
For purposes of this subdivision only, "employer" means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of "employer" in subdivision (d)of § 12926 applies to all provisions of this section other than this subdivision. Otherwise, under 12926(d), "employer" includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, including the state or any political or civil subdivision of the state, and cities, except as follows: "Employer" does not include a private religious association or corporation not organized for profit.
As previously noted regarding the analysis of Scenario Three, supra, it was held that the district court correctly dismissed the complaint against the individual defendants, for the following reason: "a supervisor does not, in his individual capacity, fall within Title VII's definition of employer." Williams v. Banning , 72 F.3d 552, 555 (7th Cir. 1995); See also Bryson v. Chicago State University, 96 F.3d 912, 917 (7th Cir. 1996). Since Jenkins did not accuse Franklin and Marks as owners of the firm, the court did not need to consider whether either individual had any "corporate capacity" separate from the firm itself.
iv) Statutory Limitation.
Employees and aggrieved individuals are cautioned as to statutory limitations. No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate by the employer occurred with some strict exceptions. The period may be extended (a)for a period not to exceed 90 days if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence; or (b) for not to exceed one year following a rebutted presumption of the identity of the person’s employer under § 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.
b) California Civil Code.
California Civil Code § 51 clearly provides that all persons within the state are free and equal and no matter what their sex, race, color, religion, ancestry, national origin, or disability, are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. Whoever denies, aids, or incites a denial or makes any discrimination or distinction contrary to § 51 is liable for each and every offense for the actual damages suffered and any amount determined by a jury up to three times the actual damages but not less than $1,000 plus attorneys’ fees. Under the statute, actual damages include special and general damages (See Cal. Civ. Code. § 52). In addition, whenever there is reasonable cause to believe that any person or group of persons have violated § 51 – by engaging in conducting resistance to the full enjoyments of any of the rights hereby secured – the Attorney General, district attorney, or any civil attorney or any other person can bring a civil action, and a verified compliant may also be filed with the Department of Fair Employment and Housing under § 12948 of the Government Code. A court may grant an order prohibiting further violation. Violation of the order is a crime punishable under § 422.9 of the Penal Code.
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