Religious Discrimination Presents an Altar Reality

Religious discrimination is on the EEOC’s radar in 2015. The issue is broad and presents many potential pitfalls for employers.

Whether it’s an Abrahamic God, Jah Rastafari or the almighty “Onionhead,” chances are the U.S. Equal Employment Opportunity Commission has worked on a religious discrimination case regarding each deity. While some cases are nothing short of bizarre — e.g., last year’s Onionhead lawsuit — religious discrimination is a serious subject for employers to ponder as the social fabric of the United States grows more diverse.

“In the last couple of years, the EEOC has started to focus on this issue again in part because the demographics of the workplace have changed,” said Barry Hartstein, chair of the EEO and Diversity Practice and a shareholder at law firm Littler Mendelson in Chicago. “For example, we’ve seen things such as more people starting to wear head coverings in the workplace.”

Religious Discrimination April 2015Religious discrimination involves treating applicants or employees unfavorably because of their religious beliefs. The law protects not only people who belong to traditional, organized religions, such as people of the Buddhist, Christian, Hindu, Jewish and Muslim faiths, but also others who have sincerely held religious, ethical or moral beliefs, according to the EEOC.

Given the diversity of the world’s many belief systems, religious discrimination is arguably one of the most interesting issues on the EEOC’s radar in 2015.

Take for example the ongoing case involving the aforementioned Onionhead, which was developed by the Mount Shasta, California-based Harnessing Happiness Foundation as a way for people to reconcile negative emotions with themselves or with others. According to the information on its website, Onionhead “wants everyone to know how they feel and then know what to do with those feelings. He helps us direct our emotions in a truthful and compassionate way, which in turn assists us to communicate more appropriately and peacefully. In turn, we then approach life from a place of our wellness rather than a place of our wounds.”

The lawsuit alleges that Syosset, New York-based United Health Programs of America Inc. violated federal law when it forced employees to participate in ongoing religious activities since 2007. These activities included group prayers, candle burning and discussions of spiritual texts, as part of the Onionhead belief system. According to the lawsuit, employees were told to wear Onionhead buttons, pull Onionhead cards to place near their workstations and keep only dim lighting in the workplace. None of these practices were work-related. When employees opposed taking part in these religious activities or did not participate fully, they were terminated. The case is currently being decided in a New York federal court.

While an anthropomorphic onion creature is an unusual case, most religious discrimination lawsuits involve more familiar deities and fit within a certain trend.

“An important part of the EEOC’s agenda is ‘failure to hire’ claims. Issues where people haven’t been getting into the hiring funnel, so to speak, because of their religion. I’ve seen more attention being placed on that,” Hartstein said.

For example, the U.S. Supreme Court will rule this term on whether Abercrombie & Fitch discriminated against a Muslim applicant. According to the lawsuit, Samantha Elauf, a Muslim teenager in Oklahoma, was rejected from a job she applied for at an Abercrombie & Fitch store in 2008 because her hijab, or head scarf, didn’t meet their “look policy” for floor staff.

Although Elauf wore her hijab during her interview, Abercrombie argues they did not know she was Muslim and therefore did not discriminate based on religion.

The case is significant for employers because it seeks to determine whether an employee or applicant must inform their employer of their need for a religious accommodation in order for the employer to be held liable for religious discrimination under Title VII of the Civil Rights Act of 1964.

The court heard the first arguments of the case on Feb. 25.

Elauf’s case falls into the common discrimination category “disparate treatment,” because the teenager was treated differently for her religion. Hartstein also noted that harassment and retaliation are two other common forms of religious discrimination in the workplace.

“You tend to see harassment and retaliation on a cyclical basis,” Hartstein said. “You look at Charlie Hebdo, and there’s tension between France’s Muslim and non-Muslim communities, just like there was in the United States after 9/11.”

To help employers better understand what constitutes religious discrimination, the EEOC released guidance on the subject in March 2014. The guidance covers best practices concerning religious garb and grooming. It also offers tips on assessing whether an employee’s religious practice is sincerely held.

Hartstein also suggested that employers remind their employees that discrimination and harassment are broad concepts that include religion.

“For years, all we talked about when it came to harassment was sexual harassment. I think employers need to be reminded that harassment in the workplace today is far broader than that. When employers do their training and engage in other sorts of training, they need to tell their employees that harassment can include religious discrimination.”

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