Guidance for Employers from Abercrombie

By Barry M. Willoughby

At our recent Annual Seminar, we discussed, EEOC v. Abercrombie & Fitch Stores, Inc., an action involving alleged religious discrimination in connection with a refusal to hire that was then pending before the U.S. Supreme Court.  Attendees at the seminar will recall that the case involved an applicant for employment at Abercrombie who was turned down based on the Company’s “look policy,” because she wore a head scarf.  Although the interview for this position did not involve any discussion of whether the applicant wore the scarf for religious reasons, and/or whether she would require an accommodation to allow her to wear the scarf while at work, the EEOC investigation established that the company’s representatives believed that the applicant was wearing the scarf for religious reasons and refused to hire her on that basis. Continue reading

I Believe, I Believe! A Vegan and a Flu Shot

Can an employee be required to get a flu shot? Employers want a healthy workforce and, presumably, employees do not want to be sick. So a flu shot seems like a good idea. And an offer of a free flu shot for employees seems like a great perk.

But the goodwill-nature of a suggestion always seems to change when a suggestion turns into a requirement. Maybe it’s just the rebellious teenager in all of us that reacts negatively to being told that we must do something. Maybe we all have authority issues. I don’t know what it is about being ordered to do something that seems to set off an automatic negative response.

The real trick, though, is how to respond to that negative response. Push back? Stand your ground and insist? Or give in and abandon your request? This is the question that one employer had to deal with when its employee refused to get a flu shot.

In Chenzira v. Cincinnati Children’s Hospital Med. Ctr., the employer required its employees to be vaccinated for the flu. Ms. Chenzira had worked for the hospital for 10 years when she was terminated for refusing to be vaccinated. She alleged that she refused on religious and political grounds because, as a vegan, she does not ingest any animal or animal by-products.

The employer moved to dismiss the complaint on the grounds that Veganism is not a true religion but, instead, is more of a dietary preference or social philosophy. The court denied the employer’s motion, finding that the plaintiff-employee may be able to establish that veganism meets the requirements of a religious belief for purposes of Title VII’s anti-discrimination provisions.

It is important to note that the court did not find that Veganism is or is not a religion. Instead, it merely held that, based on the face of the complaint, it was plausible that the plaintiff would be able to show that she subscribed to Veganism with a religious-like sincerity.

Here are two points to consider from this case.

First, take a deep breath and slowly exhale. Don’t overreact. When a 10-year employee refuses to get a flu shot, consider whether this is a truly terminable offense. I would suggest that, based on the facts as they are described in the court’s opinion, the answer is, “no.” If it’s not, let it go and move on. (The same advice applies in the context of Facebook comments by employees).

Second, do not be the arbiter of morality. Do not make a decision about whether an employee holds a “true belief” with regard to their religion (e.g., “She’s not a real Catholic; she never goes to mass!”). And do not make decisions about whether a particular belief qualifies as a religion, as was the case here.

Instead, consider the practical approach. If the employee had not gotten a flu shot and she got the flu, would it have been the end of the world for the employer? Probably not. Although there are plenty of times when standing on principle is the right approach. But that is not always the case. There also are plenty of times when the better approach is a practical one.

Chenzira v. Cincinnati Children’s Hospital Med. Ctr., No. 11-917 (S.D. Ohio Dec. 27, 2012).

Religious Discrimination Claim Succeeds for Failure to Accommodate Facial Hair

Title VII prohibits employers from discrimination based on religion, among other things.  The anti-religious-discrimination requirements actually require employers to go a step further.  Not only must employers refrain from acting (i.e., from discriminating), but they must also take action in the form of providing an accommodation for sincerely held religious beliefs of an employee.  Of course, there are limits on how far an employer must go to make such accommodations. And, like all of Title VII, the law applies not only to employees but to applicants, as well.  religion rastafarian_lion

United Parcel Service (UPS), learned this lesson in a very undesirable way.  Last week, a federal jury in New Jersey found against UPS and ordered it to pay $10,000 in damages in a religious-accommodation claim brought by the EEOC.  The EEOC asserted, and the jury so found, that the plaintiff was wrongfully denied a job based on his religious beliefs.  The plaintiff, Ronnis Mason, a Rastafarian, applied for a job in 2004 as a driver’s assistant but was denied the job because of his beard. 

The company had a policy that prevented employees with beards from delivering packages to customers.  He was, instead, offered a job as a package handler.  In this position, Mason would have worked in a warehouse for a lower salary.  Mason never completed the application process.

This is the second successful case of religious discrimination brought by the EEOC on behalf of a Rastafarian in recent memory.  We posted last year about a quickly-settled claim involving four security guards at NYC’s Grand Central Station were disciplined when their “sloppy-looking” dreadlocks did not fit under the uniform-standard caps.

Religious Discrimination Claim Filed Over Refusal to Wear Short Shorts to Work

Religious discrimination can arise in a variety of circumstances. For example, just recently, we posted about a religious-discrimination claim filed by the U.S. Equal Employment Opportunity Commission (“EEOC”), on behalf of four Rastafarians who had been disciplined for their dreadlocks.  In another, fairly unusual, claim of religious discrimination, the issue isn’t hair-style choices, though.  This time, the problem is with short shorts. image

But not with an employee wearing one.  Instead, the EEOC claims, an employee at St. Louis clothing store, Hollister Co., was terminated when she refused to wear pants or skirts the didn’t cover the knee.  She stated a religious objection to the required uniform on the ground that her Pentecostal faith prohibited such attire.

Apparently, though, the employee had no such religious objection at the time she was hired

And, although this point is certainly relevant from the perspective of truth-seeker, it’s not so relevant when it comes to determining whether religious discrimination occurred.  An employee need not explained what caused him or her to alter conduct based on religious views–or to change their religious views, for that matter.  If faced with a request for a religious accommodation, it does not behoove an employer to start “throwing stones” as it were. 

Instead, unless it is an absolutely obvious contradiction of the employee’s otherwise-professed lifestyle, you are best advised to take the employee’s word on it.  Just assume that they do hold a sincere religious belief about the issue and focus, instead, on the viability of the request.

**The irony in this claim can’t go unnoticed by the Human Resource generalists in the world who spend such an inordinate amount of energy working towards eradicating short shorts in the workplace, which, I am certain, many would argue is a religious mission in its own right.  Of course, the NYT, this summer, published an article claiming that the “man-short” (pictured above), was making its way to the “acceptable attire” list in corporate America.  Let me know how that works out.**

Previous posts on religious discrimination and dress codes include:

EEOC Files Religious Discrimination Lawsuit on behalf of Sikh who refused to remove turban

What Not to Wear to Work: More Style Rules for the Modern (Gen Y) Worker

I’m Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

EEOC Sues over Dreadlocks, Claiming Religious Discrimination

EEOC Sues over Dreadlocks, Claiming Religious Discrimination

Work rules for dress code are not out of fashion just because the season has changed.  Instead, the topic of “What Not to Wear to Work” is as trendy as ever.  So, for those of you charged with the task of enforcing dress codes and monitoring hem lines, here’s a bit of reassurance that you are not alone.   

Four security guards at NYC’s Grand Central Station were disciplined when their “sloppy-looking” dreadlocks did not fit under the uniform-standard caps.  imageThree of the four were suspended for their refusal to comply with their employer’s demand that they come to work “with their hair properly cut.”  The fourth shaved his beard after being told that failure to do so would result in his termination. 

The EEOC filed suit on behalf of the public safety officers against the Grand Central Partnership alleging religious discrimination–the employees are Rastafarians.  The matter appears to have been resolved, though.  The partnership recently agreed to provide custom-made hats to each of the officers so they could tuck in their dreadlocks.

Religious Discrimination & Prayer At Work: Employees Who Pray

In a recent post, Religious Discrimination & Prayer At Work: Employers Who Pray, we talked about employers who conduct prayer at the start of a business meeting.  The EEOC recently announced that it endorses such conduct, at least insofar as it does not find pre-meeting prayer to be discriminatory per se.  We wondered how many employers would be so bold as to follow this announcement after being counseled for so long that such an idea would be a sure-fire way to land in federal court sued for religious discrimination.  I don’t have any developments to report from the employers but it appear that employees think the idea is ok–so long as they are the ones picking the religion. image

In Minneapolis, Gold’n Plump Poultry, Inc. announced that, pursuant to the settlement of a class action lawsuit, it will allow Muslim workers to take short prayer breaks and to refuse to handle pork at the company’s poultry processing facilities.  The lawsuit accused the Work Connection employment agency of requiring Muslim applicants to sign a “pork acknowledgment form,” in which they agreed to handle pork products. It was alleged in the complaint that Somali workers who did not sign the document were not hired.

Gold’n Plump explained that employees will now be provided a 10-minute break in the second half of the shift at a certain time and only in a portion of the plant.  The employees had sought to be granted permission to leave the processing line when necessary to pray.  All employees, regardless of religion, will be granted the break.

Religious Discrimination & Prayer At Work: Employers Who Pray

The EEOC recently published an updated Guidance on Religious Discrimination.  The Guidance address the issue of religious discrimination in the workplace in a question-and-answer style format, as well as a “best practices” section.  We posted about the EEOC Guidance previously, in Increase in Religious-Discrimination Claims Prompts EEOC to Issue Updated Guidance. eeoc_logo

Last week, John Phillips, at The Word On Employment Law, posted an interesting piece about part of the Religious Discrimination Guidance that I hadn’t previously heard much about.  From the Guidance:

“Some employers have integrated their own religious beliefs or practices into the workplace, and they are entitled to do so.  However, if an employer holds religious services or programs to include prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship.  Excusing an employee from religious services normally does not create an undue hardship because it does not cost the employer anything and does not disrupt business operations or other workers.”

That’s correct–the EEOC’s current position on prayer in the workplace is that it ok, even if it is initiated by the employer and even if it occurs during working time–even if that means during a business meeting. 

Well, this is a new one for me.  I can’t recall a time when I advised a client that holding prayer services wouldn’t be a problem, and heck, go right ahead and pray at meetings–just make sure any dissenting employee is permitted to be excused. 

I do have clients who are employers founded on religious principles for which faith and prayer are at the core of their business structure.  But even organizations with high levels of religious practice do not conduct prayer as part of business meetings.

The comments that follow John’s post are very insightful.  I’d add this:

Believe it or not, I think the market would regulate this problem much more than one might initially think.  Even at organizations that are considered to be religious at their core, I can only imagine the outcry if prayer was held at the start of the meeting.  My phone would be ringing off its hook.  And a mutiny would likely follow.  If the company wants to retain its staff, it will have to forgo the pre-meeting prayer.  And the more successful the organization, the larger the organization, and the more staff the organization must hire and retain.  Any organization that understands the challenges of hiring and retention efforts would be at a real disadvantage to institute prayer at meetings if the meeting attendees weren’t likely to think favorably of it.

And those are my two cents on the EEOC’s latest Guidance on Religious Discrimination.