Religion, Employment and the Law

In the 20th and early 21st centuries, many inequities in employment practices and law have been at least superficially addressed. This is not to imply that a completely equitable system has been reached. Many times, new laws come about as the result of social movements. When a new law changes an age-old practice of discrimination, the law itself only serves as an impetus for greater social change that may take decades to reach its full potential. Laws regarding religious discrimination are still in the very early stages of this process.

Jewish and Muslim employees have been particularly vulnerable to workplace discrimination for various reasons. Whether it is because their practices differ from American cultural norms or because of world events, treatment of these groups will require special scrutiny. The cases involving Jewish and, increasingly, Muslim plaintiffs will play a large role in shaping the case law of tomorrow. To a large extent, we are still trying to learn how pervasive the problem is. The difficulty with religion and discrimination is that discrimination can take an almost unlimited number of forms.

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The United States is the most multicultural and multi-religious nation on earth. At the same time, it is a highly corporate nation. The often competing forces of capitalism and individual religious liberty make the composition of laws regarding religious discrimination a difficult, and an ongoing process. The laws used now to alleviate religious discrimination were a long time coming and the result of many cultural ebbs and flows. It will be necessary for the courts to judge wisely and fairly to prevent an erosion of individual religious liberty in the future.

Background Religious liberty was critical to the founding fathers of the United States. Many of the new settlers had come from countries with dominant, oppressive state religions. For that reason, they were especially suspicious of the concept of a state sponsored religion. When the new United States Constitution was drafted the phrase “congress shall make no laws respecting the establishment of religion or the free exercise thereof” (U. S. Dept. of Justice, 2005) went a long way toward establishing a separation between church and state.

What it did not do, however, is address discrimination for, or against, religion in the work place. In the 1800s labor law was very much in its infancy. Discrimination in hiring was commonplace. Accommodations for employee’s religious beliefs were all but non-existent. Any check on discriminatory practices was the result of economic realities, rather than law. Sometimes this was effective. “…financial considerations could restrain even virulent bigotry. Henry Ford hated Jews” (Murolo, 2001). Usually, market forces are not enough. Federal legislation was necessary to create a uniform, enforceable standard.

Religion has been both a partner in, and beneficiary of, most of the labor and civil rights movements that occurred from the late 19th to the end of the 20th century. In the first two thirds of the twentieth century, the primary focus of law was to eliminate inequities in hiring and pay based on religion. In the final years of the century, the focus shifted more toward religious expression in the workplace and accommodation of a wider variety of beliefs. In the second half of the twentieth century, religious groups began to re-engage the political process. The emergence of the Christian right is one such example.

In fact, “Nothing so surprised urban liberals in the last two decades of the twentieth century than the sudden arrival of the Christian Right as a political force” (Friedman, 2002). Other religiously-based groups followed suit and became politically active. It is in this context that discrimination claims expanded to include prevention of free religious expression in addition to hiring, pay and promotion issues. There is a constant cultural ebb and flow in a democratic society. What looked like a powerful Christian movement had begun to ebb by the end of the twentieth century.

A backlash had set in against what itself was a backlash” (Friedman, 2002). The same was true of efforts to lessen religious discrimination in the workplace in the mid-20th century. Finally, the civil rights movement of the 1960s provided the impetus for federal action. Title VII of the Civil Rights Act of 1964 is the most powerful and comprehensive law against employment discrimination on religious grounds. The Act “prohibits discrimination against persons based on their religion in hiring, promotion or in the terms and conditions of employment”.

Furthermore, the act requires that employers “reasonably accommodate the religious needs of employees, such as Sabbath observance, if it would not be an undue burden on the employer to do so” (U. S. Dept. of Justice, 2005). This act was merely a start. Hundreds of court cases in the coming decades would begin to interpret the law in a real-world context. Major Cases In the late 20th century, two Supreme Court cases addressed religious discrimination in the workplace directly.

In the case of TWA v. Hardison (432 U. S. 35 (1977)), the court had to balance currently established labor law against an employee’s right to observe his religious beliefs. An employee of Trans World Airlines refused to work on Saturdays because he felt that this was a violation of religious principles. The company countered that there was nothing it could do about the man’s work schedule. The process of work shift selection was dictated by a legally recognized collective bargaining agreement. Changing this mans shift would invariably violate the rights of another employee. The Court found TWA’s case to be convincing, ruling in its favor.

About a decade later, the same religious group was involved in a similar case before the Supreme Court. At issue was a six-day work week used by the employer. This time, the Court referred many of the issues back to lower courts. One South Florida case from 2003 shows how behavior once common in the workplace is now more closely scrutinized. The case was brought on behalf of several Jewish and other minority employees against a Lexus car dealership. According to the plaintiffs, these employees were subjected to racial and religiously based harassment by the son of the owner and two managers.

The EEOC investigated the case, found justifiable cause, and arranged a pre-trial settlement. Compensation of $700,000 was secured. Also, the EEOC worked with the dealership to revise its training policies and practices. By doing so, the EEOC hopes to prevent future problems. According to Delner Franklin-Thomas, an EEOC attorney, “This lawsuit should send a message to both employers and employee that workplaces embedded with hostile environments will not be tolerated by the EEOC” (Workplace Answers, 2003). Despite victories such as this, there have been a larger number of defeats for Jewish plaintiffs.

For example, in the case of Glovinsky v. Cohen (D. D. C. 1997), the court disagreed with a claim that religiously offensive comments significantly affected the work environment for a Jewish employee. Allegedly, the manager told an employee to get the lowest price he could “Jew them down to”, among other insensitive remarks (Kasdan, 2003). In another case, Balint v. Carson City, Nevada (9th Cir. 1998), the court had to balance religious rights against legally established scheduling policies. This particular court took a narrow interpretation of federal law.

It stated that the employer “is not required under Title VII to alter an existing system…to accommodate an employee’s religious needs to observe the Sabbath” (Kasdan, 2003). While Jewish employees have suffered religious discrimination in the U. S. for many decades, the terrorist attacks of 9/11/2001 have resulted in an explosion in the number of discrimination claims by Muslim Americans. Between that day and September 10, 2002, the EEOC received over 700 charges of religious discrimination against Muslim employees. The number had risen from only 323 in the year prior (EEOC, 2007).

The complaints cover a wide range of businesses and alleged discriminatory practices. In 2006, a Muslim man was fired after requesting time off to perform his daily prayers. The EEOC represented the man, but did not immediately file charges. Instead, a mediation process was set up and the parties reached an out of court agreement. This is typical of the types of cases and resolutions that have increased since 2001. In a somewhat similar case, the federal government sued the City of Newark, New Jersey after two police officers were reprimanded and denied opportunities because of their non-compliance with employer dress code.

The officers, in keeping with their beliefs, refused to shave their beards. The City, according to the complaint, did not make reasonable accommodations for the officers to practice their faith. Additionally, the officers were threatened with termination and given undesirable assignments. These cases demonstrate both the expanded power of the government to bring charges and the difficulty of proving such charges. Cases involving Jewish and Muslim plaintiffs are likely to continue to play a major role in forging case law.

Today’s Environment Since 1997, federal complaints of religious discrimination have risen, with the most significant jump taking place in 2002. Complaints rose from 2,127 in 2001, to 2,572 a year later (EEOC, 2007). Since 2002, complaints have remained at a similar level. Monetary benefits obtained by the EEOC peaked in 2001 at $14. 1 million (2007). The percentage of cases in which the EEOC has found no reasonable cause to bring action has remained relatively consistent since 1997, hovering at around 60%. Federal law requires employers to accommodate religious customs and practices unless it presents an “undue burden” to the employer (Repa, 1997).

This is a relatively high burden of proof for the employer. As a result, most religious discrimination cases are settled out of court. Because most cases are not litigated, it can be difficult to tell how extensive religious discrimination really is. Even so, a substantial number of cases do come to the attention of the EEOC. In 2006, the EEOC reported receipt of 2,541 charges of religious discrimination. The organization “resolved 2,387 religious discrimination charges and recovered $5. 7 million in monetary benefits…not including monetary benefits obtained through litigation” (EEOC, 2007).

The Federal law, although powerful, is not uniform. It applies to governmental agencies, labor unions and private corporations employing more than fifteen people. Additionally, employers can legally discriminate against certain individuals by using BFOQ’s (bona fide occupational qualifications). Again, the legal burden for employers is fairly high. None the less, an employer can “use gender, religious beliefs or national origin…only if the employer can show that the job has special requirements that make discrimination necessary” (Repa, 1997).

For those who are not covered by the federal act, state laws often provide protection from discrimination. Law at the state level, however, is no less settled than at the federal level. Decisions of state courts are sometimes contradictory of each other. New ground in law is continually being broken as the country becomes more religiously diverse. For example, some employees have refused to join mandatory labor unions based on their religious beliefs. Courts generally try to strike a balance between the parties when issues such as this arise: In general, the courts have recognized an employee’s right to refuse o join a union on religious grounds. However, you can still be required to pay union dues and fees… (Repa, 1997)

Under Title VII there are two broad classifications of suits which may be brought against employers. Section 706 allows the Department of Justice to negotiate resolutions and/or bring lawsuits on behalf of individual clients. Issues that cannot be resolved in “pattern of practice” suits may fall into this category. These types of cases are “limited in number” and may address issues such as “harassment, retaliation, involuntary reassignment, failure to promote…unlawful discharge and religious discrimination” (U. S. Dept. of Justice, 2005).

An example of a recent action filed on behalf of an individual client was The United States of America v. The City of Winter Springs, Florida. Stacey Goodbread, a city employee, was fired in 1993. Afterward, he filed a claim of discrimination based on Title VII of the Civil Rights Act of 1964. The charges included: …failing and refusing reasonably to accommodate his religious observances, practices and/or beliefs; and discharging or constructively discharging him from employment as a probationary firefighter because of his religion.

Section 707 enables the government to bring “pattern of practice” suits. These tend to be more complex actions that seek to prove a pattern of discriminatory practices. The goal in these cases is to change the policies of the employer. In addition, the government can seek compensatory damages, back pay and offers of employment for those they can prove suffered from discrimination. According to the Department of Justice, these types of cases “very frequently are resolved by consent decree prior to trial” (2005).

One such case filed in 2004 was The United States v. the Los Angeles Metropolitan Transit Authority. In that case it was alleged that the L. A. Transit Authority established a pattern of religious discrimination. Bus drivers, according to the complaint, were not afforded reasonable accommodations in accordance with religious beliefs that forbade them from working certain days or shifts. This is an example of how the Department of Justice has used Title VII in recent years to not only gain compensation, but also to change ongoing practices and policies of employers.

Conclusion At one time, there was no real check on religious discrimination in the workplace in America. Private employers, especially, were free to engage in discriminatory practices. That reality remained in place well into the 20th century. The watershed year for action against such discrimination was 1964. A flood of civil rights legislation was enacted beginning that year. Among that legislation was Title VII of the Civil Rights Act, a law that gave the government new powers to prosecute discrimination claims nationwide.

Many claims are dismissed because of lack of cause, and many others are settled out of court. What will never be known is how much discrimination is being prevented by the existence of a viable federal legal threat. Some similar elements to religious discrimination claims have remained constant through the years. In the mid 20th century most religious discrimination claims involved hiring, firing, or issues of pay. In other words, employees were not hired, fired, or paid less because of their religion. In recent years, however, the types of claims have expanded.

Now there are more claims relating to religious expression, practices and dress. For example, a religious person’s traditional dress or hairstyle might conflict with company uniform policies. Conversely, a person may be forced to participate in religious observances at work for a religion other than their own. New areas of the law are arising every day. A recent case involved Muslim taxi drivers who, because of their religious principles, were denying service to individuals who were intoxicated or were carrying pets.

In a world more sensitive after the attacks of 2001, religious expression is both feared and insisted upon. This means that there is no limit to the types of cases that are likely to arise in the future. For legal purposes, many employers have seen fit to create a workplace entirely devoid of religion. In today’s world, this does not always have the desired effect. In some cases the employers have to walk a difficult line. For example, a local public school district was recently sued for not allowing a teacher to wear a neck chain with a religious symbol attached to it.

The school cannot risk forwarding the impression that they are endorsing any particular religion. At the same time, it cannot deny the right of the individual to reasonable religious expression. It is these sorts of complex issues that will most likely be the focus of the judicial system through the rest of the 21st century. Courts will have the difficult task of drawing limits that are as fair as possible to all parties. If the public loses trust that this is being done, the ultimate outcome could be the erosion of individual rights.