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October 21, 2014
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Ten Tips for Employers to Avoid Religious Discrimination

Dudley Rochelle • Ethics & Values
The following article was written by my friend Dudley Rochelle, an attorney who works with a law firm in Atlanta who has given workshop presentations at our last two International Coalition of Workplace Ministries conferences. Their firm handles many religious discrimination lawsuits.
Do you espouse the fundamental American concept of freedom of expression of religion? Could it be argued that some of your company values or policies derive from a Judeo-Christian or other religious world view? Do you employ people who feel strongly about their religion and desire to share their beliefs with others? Are certain visible leaders of the organization known to have strong religious beliefs or principles? Do your employees come from more than one religious background or share more than one world view? Are you a public employer whose employees enjoy the protection of the First Amendment for free speech and religious expression? If the answer to any of these questions is yes, you are at risk for religious discrimination and harassment claims. If you believe religious freedom in the workplace is a risk worth taking, then prudent preventive measures are in order:

1. Religion.
Understand that the definition of religion under Title VII of the Civil Rights Act (the federal law prohibiting discrimination on the basis of religion) is very broad: "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." For example, atheism would qualify, although agnosticism would not. Be aware that employees who may not be traditionally religious, or who appear to be only nominally religious, may still assert a claim for religious discrimination. You should treat them with the same sensitivity you would treat someone professing a strong faith in a more traditional religion.

2. Nondiscrimination and hiring.
To overcome the appearance to some applicants and employees that employees of any particular religion are favored in your organization, you must especially emphasize in your written applicant and employee materials that the company does not discriminate in hiring, promotion, benefits and other terms and conditions of employment on the basis of religion. Be sure that any psychological or personality tests used in recruiting and hiring have been tested against the EEOC's selection guidelines for nondiscriminatory impact. The rare exception may be an employer who has an essentially religious mission for his commercial enterprise, in which some may qualify for the "bona fide occupational qualification" status for religious requirements.

3. Mission and policies.
Company policies should be carefully worded to avoid making religious belief an implicit requirement for being part of the company. General principles in a mission statement or other policy, even if based on religious concepts or teachings, may be acceptable if carefully worded. (Many concepts governing behavior and ethical practice are directly derived from religious teachings, and you may or may not be aware of the connection.) However, a statement that implies that personal religious belief is necessary to do each job in the company, such as "We will seek to know and do God's will in all we do," is not acceptable. If the company leader wants to make a personal statement of faith, as, for example in a document explaining why he founded the company, it should clearly be identified as the leader's personal statement, not the company's statement.

4. Hostile environment.
Recognize that if you're successful in operating your company in a manner that welcomes people with religious faith, you may tend to attract religious employees and end up with a majority espousing a particular faith. Unwittingly, you may create what outsiders as a "Christian or Jewish, Muslim, etc. environment." Atheists and persons of other religious faiths may perceive this as a hostile environment. The concepts applied to sexual harassment and other forms of discriminatory harassment (such as race, age, etc.) also apply to religion, and the Supreme Court has recently made clear that all forms of harassment will be judged by the same legal tests (modified as appropriate to fit the facts).

5. Training and prevention.
To defend a claim of harassment, it is necessary to show that the company took measures to prevent it. At a minimum, this includes training of supervisors on how to avoid committing unlawful harassment when discussing personal religious beliefs with employees, and dissemination of an anti-harassment policy and complaint procedure to all employees. Preferably, it includes training of all employees on the policy as well.

6. Anti-harassment policy.
Any employer needs an anti-harassment policy that covers all protected categories, including religion. The policy should include a prohibition of harassment, a complaint procedure that allows the complainant to bypass the direct supervisor, assurance of non-retaliation against complainants, and assurance that all complaints will be promptly investigated and appropriate action taken.

7. Workplace activities.
Company-sponsored or company-allowed religious studies or prayer groups in the workplace are not necessarily unlawful. However, a few important guidelines apply: . Make clear (preferably in writing) that attendance is not mandatory and has no effect, positive or negative, on an employee's evaluation or prospects for advancement. Roll should not be taken or attendance noted. . It is preferable if top company management does not administer or lead the study, although the CEO may certainly be asked to speak on occasion. . Be aware that if the instrumentalities (e.g., bulletin board, e-mail) of the company are used to send notices, promote, or invite employees to the meeting, then the use of such instrumentalities for other purposes must also be allowed. . If other employee-led groups of a religious nature but espousing other religions ask for meeting space, etc., you may be required to furnish the same benefits to them. . Non-participation in the prayer time or religious studies should never be noted or remarked on by any member of management, and should not be a factor in considering work assignments or promotions. Care must be taken to overcome the inevitable assumption on the part of non-participants that others "get ahead" due to their participation.

8. Prayer.
If prayer at company meetings is routine, it should be made clear (preferably in writing) that employees required to be at the meeting may come in late, leave early, or otherwise choose not to participate in the prayer time. Also, persons with religious beliefs that prohibit them from being present during prayer must be accommodated.

9. Communications.
E-mail, even if deleted, is routinely retrieved and often required to be produced in litigation. The same applies to voice mail and written communications. E-mail exchanges which you may consider to be "personal" with an employee on religious matters may well be considered business-related in a court case, and may be used to demonstrate management's "discriminatory" or "hostile" attitude towards an employee not measuring up to someone's perceived religious standards. Also, allowing the company's e-mail and other communications to be used for notices related to religious activities may require that employees of other "religious" persuasions (see #1 above) also be allowed to do so.

10. Accommodation.
The law requires reasonable accommodation of employees' religious beliefs, observances and practices, such as time off for religious holidays, breaks for prayer, and the like. The test for determining what is reasonable depends on whether it creates an undue hardship on the company or other employees, which is not too difficult to meet under current law. However, if you allow greater accommodation than the law requires for one group, you will have to extend that level of accommodation to employees of other faiths as well. There is a pending bill to raise the threshold of accommodation the employer must meet. Consult your attorney to assist you in making these significant legal determinations.

©2002 by Littler Mendelson, P.C. All rights reserved. For further information, contact Dudley C. Rochelle, Esquire at Littler Mendelson, 3348 Peachtree Road N.E., Suite 1100, Atlanta, GA 30326, 404.233.0330. www.littler.com

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