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Post 9/11, Religious Discrimination Claims Rise

August 18, 2008
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Richard D. Alaniz

Several months after the 9/11 attacks, Alamo Car Rental fired one of its customer service representatives, a Muslim woman who refused to remove her head scarf during Islam’s holy month of Ramadan. The U.S. Equal Employment Opportunity Commission (EEOC) in Phoenix filed a lawsuit claiming that Alamo committed backlash discrimination based on religion. Last year, a jury awarded more than $287,000 to Bilan Nur: $21,640 in back pay, $16,000 in compensatory damages, and $250,000 in punitive damages.

In this case, the judge decided that Alamo’s religious discrimination against Nur was so clear cut that those allegations did not even go to the jury; its only role was to decide how much money Nur was entitled to. “For nearly six years, Alamo has continued to deny that it violated the law when it refused to accommodate Ms. Nur’s religious beliefs and fired her,” said Mary Jo O’Neill, regional attorney for the EEOC Phoenix District Office in a statement following the jury’s ruling. “Title VII [of the Civil Rights Act of 1964] protects people of all religious beliefs, and no one should ever have to sacrifice her religious beliefs in order to keep a job.”

Religious discrimination cases such as Nur’s have been on the rise since 9/11. The number of cases that the EEOC, the federal agency responsible for enforcing the laws that prohibit employment discrimination, has received based on religious discrimination has increased from 1,939 in 2000 to 2,880 in 2007.

The 9/11 attacks came as the United States has become a more religiously diverse country. According to the American Religious Identification Survey conducted by the Graduate Center of the City University of New York, in 1990, 86.2 percent of Americans called themselves Christians; by 2001, that number had dropped to 76.5 percent. The number of Jews also dropped over the same time period, while those who identified themselves as Muslims, Hindus, and Sikhs more than doubled. According to the survey, between 1990 and 2001, the number of self-described Muslims grew from 527,000 to 1.1 million or 0.5 percent of the U.S. population. The number of Hindus in America grew from 227,000 to 766,000 and the number of Sikhs increased from 13,000 to 57,000. (Americans who identified themselves as non-religious also grew, from 8.2 percent of the U.S. population in 1990 to 14.1 percent in 2001.)

Following 9/11, the EEOC released a fact sheet specifically outlining the workplace rights of Muslims, Arabs, South Asians, and Sikhs. “EEOC commissioners have listened to the concerns of those individuals most affected by backlash discrimination in the wake of the September 11 attacks,” EEOC then-Chair Cari M. Dominguez said at the time.

Of course, not all religious discrimination cases involve Muslims or what the EEOC calls other “vulnerable groups” post-9/11. The increased focus on religion has led to claims by members of other denominations as well. For example, in October 2007, a jury ordered AT&T Inc. to pay $756,000 in a religious discrimination lawsuit the EEOC brought on behalf of two male customer service technicians who were suspended and fired for attending a Jehovah’s Witnesses Convention. And according to the Los Angeles Times, in July the Los Angeles Police Department was sued for religious discrimination after it disciplined an off-duty police sergeant who called homosexual acts “sinful” and an “abomination.”

According to Title VII, which applies to employers with 15 or more employees, workplace discrimination is prohibited based on religion, ethnicity, country of origin, gender, race, and color. Discrimination is prohibited in any aspect of employment, including recruitment, hiring, promotion, benefits, training, job duties, and termination. In addition, an employer must provide a reasonable accommodation for religious practices unless doing so would result in undue hardship. Most states also have similar anti-discrimination laws that impose the same obligations as federal law.

A PROACTIVE APPROACH

In order to stave off potential religious discrimination claims by employees of all faiths, employers need to understand their duties under Title VII, and they need to communicate those duties and expectations to their employees.

Research Local and Federal Laws
Title VII is not the only law regarding religious discrimination that affects employers - local and state regulations may also exist that can differ from federal law. Before updating corporate policy to cover religious discrimination, organizations need to understand all the laws that govern their operations, particularly if they have locations in more than one state.

Understand “Reasonable Accommodations”
Title VII requires that employers make reasonable accommodations for their employees’ religious beliefs, but only if it doesn’t cause undue hardship. It can be very complicated for organizations to determine what is reasonable, and what represents an undue hardship. For example, employers may struggle with requests from Muslim workers who request time off to pray during the work day and a space to pray in.

According to the EEOC, when presented with this particular scenario, employers should work closely with employees to arrive at a workable compromise, and that can depend on the particulars of the business and the accommodations that Muslim employees request. If a conference room is not in use during the requested times, it would probably not cause an undue hardship to let employees pray there. And according to the EEOC, employees can often pray during breaks.

Educate Employees About Their Responsibilities
While employers must try to resolve conflicts between religious needs and work-related duties, employees must do the same. They should offer as much notice as possible when they need to take time off for holy days, and they should work their vacation schedules or personal days around these times.

Upon hiring or during job training, employers should communicate their expectations to employees; an annual refresher course for all employees, including managers, can help head off conflicts.

Consider Religious Clothing When Developing Dress Codes
Many religions require a particular type of dress or symbols, from tattoos for Coptic Christians to yarmulkes for devout Jewish men to hijabs, or head scarves, for devout Muslim women. Employers must factor these types of religious garb into their formal dress codes and informal expectations for what employees can wear.

One of the few relatively clear rules about religious symbols or clothing representing an undue hardship involves safety issues. If a particular type of religious garb could represent a safety risk for that particular employee’s job, the employer generally has the right to dictate what the employee can or cannot wear.

Laws Apply to Applicants, Too
It is illegal to ask job applicants about their religion or observance of religious holidays during any point of the hiring process. Asking if an applicant’s religion will prevent them from working holidays and weekends is not acceptable - rather, the employee must alert the employer about needed days off once he or she is hired. However, employers can describe the hours and duties that a job entails during the interview process.

“Joking” Comments
When someone in the workplace makes comments about a person’s religion, or supposed religion, that can quickly cross the line into religious discrimination, even if they insist it was all in good fun.

The company should clearly lay out what the boundaries are for unacceptable personal comments and enforce those as soon as they become aware of the comments or a complaint is filed.

Tensions Between Religious Groups
Often, different religious groups in the workplace can discriminate against those in other religions or protected groups. In a case several years ago, an employee of Hewlett-Packard Co. claimed religious discrimination when he was disciplined for anti-homosexual comments. The employee, a self-described devout Christian, was eventually fired for insubordination when he refused to take down Biblical scriptures clearly posted at his desk that preached against homosexuality. Eventually, the U.S. Court of Appeals for the 9th Circuit ruled in favor of Hewlett-Packard, finding that it would create undue hardship for the company to satisfy this particular former employee’s demands.

Employers should be aware that this type of discrimination can occur and train managers and supervisors to recognize these situations as they develop.

The United States is on track to become more, and not less, religiously diverse. With the proper planning and policies, employers can create an environment where employees of all religions, as well as no religion, feel valued. This also helps the company minimize its exposure to potential religious discrimination lawsuits. The EEOC, at www.eeoc.gov, and knowledgeable legal counsel can help develop and implement these types of policies.

Publication date: 08/18/2008

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