Overview: Harassment against an individual based on his or her religion is strictly prohibited by Title VII as well as various state and local laws. Religious harassment may take the form of hostile work environment harassment or quid pro quo harassment.
Quid pro quo religious harassment occurs when a harasser demands that an individual comply with the harasser's religious demands and engage in conversion or religious worship or otherwise suffer an adverse employment action. Religious harassment can also arise in the context of a hostile work environment such as teasing, jokes and other offensive, threatening or humiliating conduct based on an employee's religion.
In order to effectively prevent religious harassment, employers should institute a policy that religious harassment will not be tolerated under any circumstances. Employers should provide employees with a multichannel complaint system which will allow them to bring a claim of religious harassment. Further, employers should provide employee training and development on religious harassment to all employees and supervisors and make sure that they respond to harassment complaints in a timely and effective manner.
Trends: Employers should recognize that complaints of religious harassment are increasing and the EEOC has filed a number of lawsuits on behalf of Muslim and Arab workers alleging that interrupted prayer breaks, discrimination based on employee attire and requested employee name changes constitute religious harassment. Further, employers should be aware that states such as California law have recently passed measures to directly address religious harassment in the workplace and ensure a more tolerant and diverse workforce.
In Vance v. Ball State University, 570 U.S. (2013), the Supreme Court issued a critical decision which makes it more difficult for employees to prove that an employer is vicariously liable for a supervisor’s discriminatory or harassing conduct. Specifically, the Court held that a supervisor must be someone with the direct power and authority to take tangible employment actions against an employee. This issue is of primary importance when determining whether an employer is vicariously liable for a supervisor's actions in cases of harassment. Under the current law, if the harasser is a supervisor, the employer is automatically vicariously liable for the supervisor's actions. If the harasser is not a supervisor, the plaintiff must prove that the employer was negligent and that the employer knew or should have known of the harassment in order to be liable. This is a much higher burden to meet.
Author: Beth P. Zoller, JD, Legal Editor
California employers with five or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year are covered under the Fair Employment and Housing Act (FEHA) and should consider including this model policy statement in their handbook.
The Equal Employment Opportunity Commission (EEOC) has released two new publications instructing employers with regard to employee religious garb and grooming in the workplace: a lengthy Question and Answer Guide as well as a Fact Sheet on religious discrimination and accommodation. The EEOC notes that this guidance comes after a marked increase in the number of religious discrimination lawsuits.
XpertHR's Financial Services Resource Center for HR helps financial services employers handle their most challenging employment issues by bringing relevant resources together in one place for easy access.
While it is generally lawful for an employer to develop and implement dress codes and uniform policies, the employer must be mindful of employees' right to practice their religion and wear clothing that comports with their religious beliefs and practices, or else it may face a religious discrimination claim. In Equal Employment Opportunity Commission v. Fries Restaurant Management, LLC d/b/a Burger King, Fries Restaurant Management (Fries) agreed to pay $25,000 to a teen employee who was asked to leave work because she wore a skirt instead of the required uniform of black pants.
In the midst of the flu pandemic sweeping the nation, a federal court in Ohio has provided some food for thought to employers that require their employees to get a flu shot. In Chenzira v. Cincinnati Children's Hospital Medical Center, 2012 U.S. Dist. Lexis 182139 (S.D. Ohio, 2012), an employee who was terminated for refusing to get a flu shot because the vaccine contained chicken egg product, which violated her religious and philosophical beliefs as a vegan, may proceed with her religious discrimination claim.
The EEOC is pursuing non-traditional harassment claims such as those by males against males and claims based on national origin harassment, sexual violence and abuse. Further, the EEOC has indicated that farm workers are particularly vulnerable because they often work long hours in isolated working conditions and lack familiarity with legal protections and access to the legal system.
Recent federal cases suggest that an employer may not be liable for religious discrimination if the employer offers an accommodation that is reasonable and does not cause the employer an undue hardship. However, employers should carefully consider all relevant and reasonable accommodations.
In the wake of the tragic shooting in August at a Sikh Temple in Wisconsin and on the eve of the 11th anniversary of September 11th, California Governor Jerry Brown has signed two bills in California directly addressing religious discrimination and accommodation and the teaching of tolerance and diversity in schools. The new laws aim to eliminate discrimination and bias against Sikhs, Muslims and other religious groups in the workplace.
An employer may use this policy to inform employees on how to request a religious accommodation. Examples of accommodations may include job restructuring, job reassignment, modification of work practices, and allowing time off, or a combination of the above.
HR guidance on handling the issue of religious harassment and preventing its occurrence in the workplace.