Chapter 11 Flashcards
Note
Religious organizations are usually exempt from the prohibitions of title VII
note
The 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 an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
What if I never heard of the employee’s religion? Must I still accommodate it?” The answer is based on two considerations
: whether the employee’s belief is closely held and whether it takes the place of religion in the employee’s life. The latter requirement means that even atheism has been considered a “religion” for Title VII purposes. If the answer to both queries is yes, then the employer must accept the belief as a religious belief and attempt accommodation for conflicts.
religious practice vs belief
duty to accommodate
The duty to accommodate only applies to religious practices, not religious beliefs. An employer is only required to accommodate a religious practice to the extent that it does not present an undue hardship on the employer, but religious beliefs do not have that limitation. That is, no matter how unorthodox, or even outrageous, an employee’s religion may seem to the employer, the employer cannot take an adverse employment action against the employee simply because the employee holds that religious belief
In fact, sometimes the conflict comes not with the employee’s religion, but with that of the employer.
In order for an employee to proceed with a claim of religious discrimination, he must first establish a prima facie case by establishing that
- He holds a sincere religious belief that conflicts with an employment requirement.
- He has informed the employer of the conflict.
- He was discharged or disciplined for failing to comply with the conflicting employment requirement
The EEOC and the courts will look to the following factors in determining whether the employer has
successfully borne the burden of reasonably accommodating the employee’s religious conflict:
- Whether the employer made an attempt at accommodation.
- The size of the employer’s workforce.
- The type of job in which the conflict is present.
- The employer’s checking with other employees to see if anyone was willing to assist in the accommodation.
- The cost of accommodation.
- The administrative aspects of accommodation
note
Title VII, the prohibition against religious discrimination is not absolute. An employer can discriminate against an employee for religious reasons if to do otherwise causes the employer undue hardship. When the employer discovers a religious conflict between the employer’s policy and the employee’s religion, the employer’s first responsibility is to attempt accommodation. If accommodation is not possible, the employer can implement the policy even though it has the effect of discriminating against the employee on the basis of religion.
The EEOC has provided guidelines as to what factors it will consider in deciding whether the employer’s accommodation would cause undue hardship.84 Such factors include
- The nature of the employer’s workplace.
- The type of job needing accommodation.
- The cost of the accommodation.
- The willingness of other employees to assist in the accommodation.
- The possibility of transfer of the employee and its effects.
- What is done by similarly situated employers.
- The number of employees available for accommodation.
- The burden of accommodation on the union (if any).
Religion bona fide occupational qualification
Title VII permits religion to be a bona fide occupational qualification if it is reasonably necessary to the employer’s particular normal business operations. It also specifically permits educational institutions to employ those of a particular religion if they are owned in whole or in substantial part by a particular religion.
religious discrimination
the right to be free of religious discrimination is not absolute
religious freedoms granted for federal employees
Under the guidelines, employees
- Should be permitted to engage in private religious expression in personal work areas not regularly open to the public to the same extent that they may engage in nonreligious private expression.
- Should be permitted to engage in religious expression with fellow employees, to the same extent that they may engage in comparable nonreligious private expression, subject to reasonable restrictions.
- Are permitted to engage in religious expression directed at fellow employees, and may even attempt to persuade fellow employees of the correctness of their religious views. But employees must refrain from such expression when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome.
notenote
The key is for an employer to make sure that the basis for the conflict is a religious one and then to try to work out an accommodation. Once the employer is aware of the conflict, the employer must attempt a good-faith accommodation of the religious conflict and the employee must assist in the attempted accommodation. If none can be worked out and the employer has tried everything available that does not present an undue hardship, then the employer has fulfilled his or her Title VII obligation and there is no liability, even if the employee’s religious conflict cannot be accommodated. Of course, because of the diversity of religious conflicts that are possible, there is no single set of rules that can be provided that will cover all religious conflicts.
note
the First Amendment’s guarantee of freedom of religion shields churches and their operations from the reach of the antidiscrimination laws when the issue involves religious employees of these institutions. In their view, churches (or synagogues, mosques, etc.) are the best judge of whether ministerial employees should be terminated. To hold otherwise would create excessive entanglement of the government in the affairs of the religious organization.
duty to reasonably accommodate
the employer’s title VII duty to try to find a way to avoid conflict between workplace polices and an employee’s religious practices or beliefs
undue hardship
burden imposed on an employer, by accommodating an employee’s religious conflict, that would be too onerous for the employer to bear
