Religious discrimination is still one of the big problems that is being encountered in the work place today. There is nothing new about religion in the workplace. As long as human beings exist, there will still be some of us who are religious and will ultimately need to express themselves while at work.
The laws surrounding religious discrimination in the work place seeks to address unfair treatment of employees because of their religion.
Religion includes all aspects of religious observance and practice as well as belief. The religion does not have to be a traditional, organized religion such as Buddhism, Christianity, Hinduism, Islam, and Judaism. It may be a completely unique set of beliefs, but those beliefs must be sincere and meaningful in the life of the believer, and be at par with a deity.
Religious discrimination in the work place refers to is treating individuals differently in their employment because of their religion, their religious beliefs and practices, and/or their request for accommodation (a change in a workplace rule or policy) of their religious beliefs and practices.
It also includes treating individuals differently in their employment because of their lack of religious belief or practice. The law protects not only people who belong to traditional organized religions such as the Christian, Muslim, Jewish, or other faiths, but all people who have sincerely held religious, ethical, or moral beliefs.
If you have been rejected for employment, fired, harassed or otherwise harmed in your employment because of your religion, your religious beliefs and practices, and/or your request for accommodation of your religious beliefs and practices, you may have suffered unlawful religious discrimination.
It is not uncommon for some workers who experience religious discrimination to also experience other forms of illegal discrimination such as national origin discrimination, immigration/citizenship status discrimination, and/or race discrimination.
Religious discrimination can come in many forms and shades. If you have been denied work or a promotion, harassed at work, or denied an accommodation at work because of your religious beliefs or practices, or because of your lack of certain religious beliefs, you may have been a victim of religious discrimination.
Title VII of the Civil Rights Act of 1964 (Title VII) and the Religious Freedom Restoration Act (RFRA) prohibit many employers from engaging in religious discrimination in the workplace. It also specifically forbids companies from doing the following:
- failing to hire or promote applicants or employees in a discriminatory fashion based on their religious beliefs or practices in any area of employment;
- bullying or harassing employees because of their religious beliefs or practices;
- turning down a requested reasonable accommodation (of an employee’s religious beliefs) if the requested accommodation will not result in more than a de minims cost on the employer; and,
- Retaliating against an employee who has engaged in protected religious activity.
There are typically three main forms of religious discrimination in the workplace:
- employment decisions based on religious preference
- harassment based on religious preferences and;
- Failing to reasonably accommodate religious practices.
Potentially Unlawful Religious Discrimination Practices
This form of discrimination involves making decisions concerning employment solely based on the faith or none existence of faith of an employee. This can come in the form of refusing to hire an employee because he or she is a Seventh-Day Adventist or Orthodox Jew and observes a Saturday Sabbath; relieving an employee of his position because he or she missed work to observe a religious holiday; promoting an employee only if she is willing to attend church regularly; transferring an employee to a position with less public contact because he is a Rastafarian who wears dreadlocks; not giving an employee a raise until he stops discussing religious beliefs with other employees during free time such as breaks or lunch et al. Other examples include not hiring an applicant because he is a Muslim; a Jewish supervisor not hiring a qualified non-Jewish employee because the supervisor prefers (based on religion) a fellow Jewish employee; or, firing an employee because he wants to wear religious symbols or special religious clothing.
This can come in the form of ridiculing an employee or telling them they are violating the company’s dress code because they wear religious clothing such as yarmulkes, turbans, or hijabs (head scarves); repeatedly making fun of a person because of his or her strong Christian beliefs; ridiculing a Muslim employee for refusing to eat pork at a company picnic; making efforts repeatedly to try to convert a fellow employee who is an atheist.
Failure to accommodate
Refusing to accommodate an employee because of their religion is usually the most common form of workplace religious discrimination. This type of discrimination can include requiring an employee to work on a Sunday or on Sabbath, even though other employees are willing to trade shifts with him; forcing an employee to remove her hijab (scarf) to comply with the company’s dress code even though other employees wear baseball caps on the job without management having any problem with this; not allowing employees to display religious icons or other expressions of religious belief in their work spaces, although employees are allowed to display other types of personal items.
Similarly, requests for accommodation of a “religious” belief or practice could include, for example: an Amish employee requesting a schedule change so that he can attend church services on a special religious holiday; a Muslim employee requesting an exception to the company’s dress code so she can wear her headscarf, or a Hindu employee requesting to wear her bindi (religious forehead marking); an atheist asking not to participate in the religious prayer offered at the beginning of company meetings; or an employee who asks for an accommodation of his religious belief where he cannot work on Saturdays.
Religion-based discrimination cases have really increased over the years. For instance, between 1997 and 2015, religion-based claims have risen by a whopping 41%, and payouts have increased approximately 174%. If you have experienced any form of the aforementioned discriminations in your work place, then, you may have suffered an illegal religious discrimination.
Who is Protected Under the Law?
Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. Title VII also covers private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.
Under state laws that make it illegal to discriminate on the basis of religion, however, the minimum number of employees needed to bring a claim varies by state.
It should be noted that these Anti-discrimination laws also applies to job applicants as well as employees. If you are a current employee and are fired, not promoted, or paid at a lower rate, you are protected under the law. If you are not hired because of your religious beliefs, you are also protected.
These Anti-discrimination laws seek not to only protect individuals who are aligned with organized religion but also seeks to protect people with a broad spectrum of religious belief system. Simply because no official religious organization to which the individual proclaims to belong exists does not determine whether the belief is religious or not. So long as the religious belief is sincerely held, it does not matter if it is logical or comprehensible to others.
What employers can do to resolve and prevent religious discrimination in the work place
In order to ensure that cases of religious discrimination are kept to the barest minimum, it is duty of the employer to prevent and/or resolve religious conflicts. It is also up to the employee who wishes to observe their religious practices to play their role in order to ensure a harmonious existence.
To do this, the employee has to initiate his stand on any religious commitments or practices at the time the job is accepted or immediately upon becoming aware of the need for the accommodation. Employees must make this clear because vague objections will usually not suffice.
To this effect, if you request an accommodation, do it in writing. Explain the reason for accommodation and what kinds of accommodation you suggest. Keep copies of everything you send and receive from your employer, as well as copies of information supplied from your church or religious leaders.
Here are some other tips to prevent religious discrimination in the workplace.
- Know what constitutes Religion: as an employer of labor, you will need to 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. You should take note that even though some employees may not be traditionally religious but appear to be only nominally religious, they 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. Non-discrimination and hiring: in order to overcome the appearance to some job applicants and even 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 are not in any way discriminatory. 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 phrased so as to prevent giving the impression that belonging to a particular religion can make or mar your chances of getting into the organization.
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: you should realize that if you run your company in such a way that welcomes people of religious faith, it is very likely that your company will attract religious employees and a majority of them may tend to promote their faith in their place of work.
Unknowingly, outsiders may now view that particular workplace 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.
5. Training and prevention: in order for a company to defend a claim of harassment, it is necessary to show that the company took measures to prevent it. You may be surprised that some employees are not fully aware of things that constitute religious discrimination and as such, it is up to the employer to conduct 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, as well as training of all employees on the policy as well.
6. Have an 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: it is not necessarily unlawful for companies to sponsor or allow religious studies or prayer groups in the work place. 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. Post religious discrimination notices: a very good way to prevent religious discrimination in the work place is to paste notices in the workplace containing details of what constitutes religious discrimination and making sure to emphasize that such a practice will not be tolerated in any form.
As a matter of fact, any time the Equal Employment Opportunity Commission (EEOC) settles a religious discrimination case, one of the main requirements from the employer is to post notice about religious discrimination and explain the complaint process to workers.
9. Take on a no tolerance policy: even though you can think that religious discrimination is inappropriate, it is still up to the employer to stress this and make it to sink into all the employees. Stressing this can have an effective deterrent effect throughout the workplace and help employees feel more secure about legally practicing religion while at work. In addition, any default of a company’s religious discrimination policy should be met with a swift response and action.
10. Define a clear complaint process: Another very good way to combat religious discrimination in the workplace is to let employees know there is a clear complaint process. This will also go a long way to serve as a deterrent and as such workers may be less likely to engage in discriminatory behavior as a result.
11. Prayer: if conducting prayer is a part of the company’s routine, then it will go a long way to clearly state (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.
12. Communications: E-mail, even if deleted, is routinely retrieved and often required to be produced in court proceedings. 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 also be allowed to do so.
13. Accommodation: it is required by law that to certain extents, the religious beliefs, observances and practices, such as time off for religious holidays, breaks for prayer, and the like should be accommodated. 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, it is imperative to note that if for any reason you should offer a greater accommodation to employees of a certain religion, 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
What can an employee do in the event that he or she has been discriminated based on religion?
If you notice that after filing for an accommodation for your religious belief in your work place and you were continually denied, you can go ahead to file a grievance. If you are a union member, you may be able to file a formal grievance through the union. Try to get a shop steward or other union official to help you work through the grievance process.
Some employers have policies for handling a dispute regarding religious accommodations. You may be able to resolve the dispute at your job internally. Find out what the employers’ policies are by looking in your employee manual or other sources of personnel policies. Your employer’s human resources department may be able to help.
However, even if you file a grievance with your employer, the deadlines to file in court or with an administrative agency still apply, so be sure not to miss them.
What if workers with more seniority already have my day of worship off?
If your employer can demonstrate undue hardship, it does not have to accommodate your religious practices. Your employer can show undue hardship if changing the seniority system to accommodate one employee’s religious practices denies another employees the job or shift preference guaranteed by the seniority system.
If this should be the case where you work, you can ask your fellow employees to see if any of them will willingly allow you to trade shifts with them or you can ask your employer whether you can make up the work at other times, or transfer into another position which either does not require that you work on the day of your religious observances.
Is it possible to ask a potential employer to move an interview because it clashes with your day of worship?
Yes, it is very much possible. Employers are not allowed to schedule aptitude tests or interviews on a day that conflicts with a current or prospective employee’s religious needs, unless the employer can prove that not doing so would cause an undue hardship. You may either choose to let your potential employer know that this poses a conflict with your day of worship, or you may just wish to tell the employer that you have a conflict and are not available on that day.
It is however the duty of the employee to resolve misunderstandings that arise between job duties and religious needs, therefore, it is up to them to let employers know about any potential conflict either when they accept a job. If for some reason you have become more religious minded than when you initially started the job, then you should let your employer know as soon as possible.
What Happens When An Employee Takes Action Against Religious Discrimination?
If an aggrieved employee should decide to take action against religious discrimination, the employee can start by filing a complaint with supervisors. This complaint could allege unfair treatment based on religion, such as being passed up for promotion due to religious sentiment, or it may involve a report of religious-based harassment.
This means the employee has experienced severe and pervasive offensive conduct, remarks or behavior specifically directed at him or her based on religion.
As soon as a complaint is filed or simply brought to the attention of supervisors or managers, it is the duty of the employer to respond with reasonable methods to end the discrimination or harassment. Without a reasonable response, the employer could be exposed to religious discrimination liability and the penalties for that can be quite stiff.
Penalties and Remedies for Religious Discrimination
The laws that govern religious discrimination in the work place are aimed at restoring the discriminated employee in the position he or she would have been in had the discrimination not occurred. It could take the form of any of the following;
- Back Pay: this refers to earnings that you lost as a result of the discriminatory policies and act that the organization has indulges in up to the date of a judgment.
- Front Pay: this refers to lost future earnings due to the effects of the discrimination.
- Lost Benefits: this may include healthcare coverage, dental insurance, pension or 401k plans, stock options, and profit sharing.
- Emotional Distress Damages: also known as pain a suffering. These are the mental or emotional injuries as a result of the discrimination. This means that an employer might have to pay for such incidental costs as therapy or psychological evaluation that come as a result of religious discrimination.
- Punitive Damages: this is intended to punish the employer for particularly discriminatory conduct. Punitive damages may also be awarded as a form of punishment for intentionally reckless forms of religious discrimination. For large companies, these damages could be as much as $300,000.
- Attorneys’ Fees: In addition to the damages you can recover for your injuries, you can also win an award of attorney’s fees, expert witness fees, and court costs.
In conclusion, in order to make sure that religious discrimination is non-existent in the work place, employers should not refuse to recruit, hire, or promote individuals of a certain religion, impose stricter promotion requirements for persons of a certain religion, or impose more or different work requirements on an employee because of that employee’s religious beliefs or practices.
Employers may not refuse to hire an applicant simply because he does not share the employer’s religious beliefs, and conversely may not select one applicant over another based on a preference for employees of a particular religion.
Employment agencies may not go along with requests from employers to engage in discriminatory recruitment or referral practices, for example by screening out applicants who have names often associated with a particular religion for instance, names like Mohammed.