While it might be logical to assume that federal employment law prohibiting religious discrimination in the workplace was created to protect individuals belonging to religious minorities, a recent lawsuit filed by a former NFL player and analyst against Fox Sports demonstrates that members of any faith can invoke the protection of federal law.
Craig James v. Fox Sports
Craig James, a former player for the New England Patriots, recently filed a federal lawsuit in Dallas, Texas alleging religious discrimination against his former employer, Fox Sports. James was terminated in 2012 from a job as a football analyst at Fox Sports just two days after he was hired.
The lawsuit alleges that James claims that he was fired after Fox Sports learned of certain comments he made while he ran for the United States Senate from Texas. As part of his campaign, James spoke against his opponent’s attendance at a gay pride parade, stating that:
“I think right now in this country, our moral fiber is sliding down a slope that it’s gonna be hard to stop, if we don’t stand up with leaders who don’t go ride in gay parades. I can assure you I will never ride in a gay parade.”
The lawsuit alleges that James was fired for expressing his religious beliefs about marriage in violation of Title VII of the Civil Rights Act of 1964. Fox Sports denies the allegations. In a statement issued after the lawsuit, Fox Sports described James as a “polarizing figure” and referenced allegations that he had abused his position at ESPN to get his son’s football coach at Texas Tech University fired. Describing the allegations as “baseless,” Fox Sports asserted that “the decision had nothing to do with Mr. James’ religious beliefs and we did not discriminate against Mr. James in any way.”
The case will likely garner a lot of attention due to the notoriety of the parties and the nature of James’ comments regarding gay marriage. Indeed, the conflict between religious freedom and civil rights has become a topic of national debate. Earlier this year the United States Supreme Court ruled that states cannot ban same-sex marriages while Indiana’s attempt to pass a religious freedom bill almost cost Indiana an opportunity to host the SuperBowl.
Against his back drop, employers should understand Title VII’s prohibition against religious discrimination to avoid potential lawsuits.
Religious Discrimination in General.
Title VII prohibits discrimination as to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.
It is also illegal to harass a person because of his or her religion. Harassment can include, for example, offensive remarks about a person’s religious beliefs or practices. Like other forms of harassment, religious harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as a termination of employment). To illustrate, in EEOC v. Orrington D.M.D. Ltd., No. 07 C 5317 (N.D. Ill. consent decree entered Jan. 13, 2009) the parties entered into a $462,000 settlement of suit on behalf of 18 charging parties against a dentist alleging that he routinely sexually harassed female employees and forced them to participate in Church of Scientology practices. These practices included requiring employees to start each shift with a prayer and requiring them to recite Scientology “formulas” and the Scientology “triangle of understanding,” in some instances on paydays before receiving their checks.
Religious Discrimination & Duty to Provide a Reasonable Accommodation
The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion such as flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.
For example, if an employee needs to use a quiet workplace area for prayer during break time, the employer should accommodate the request under Title VII unless it would pose an undue hardship.The EEOC has made clear that, if the employer allows employees to use the facilities at issue for non-religious activities not related to work, it may be difficult for the employer to show that allowing the facilities to be used in the same manner for religious activities is not a reasonable accommodation or poses an undue hardship.
Religious Discrimination in Work Assignments
Title VII also prohibits assigning an employee to a non-customer contact position because of actual or feared customer preference. Thus, a restaurant would violate Title VII if it refused to assign a Muslim server to a certain table due to a customer request for a non-Muslim server.
Religious Accommodation/Dress & Grooming Policies
An employer must reasonably accommodate an employee’s religious beliefs or practices unless doing so creates an undue burden to the business or its operations. A common example may include allowing and employee to wear a particular head covering or other religious dress. The standard to establish a discrimination case was recently addressed by U.S. Supreme Court in EEOC v. Abercrombie Fitch Stores, Inc. On June 1, 2015, the Court held that in order to prevail in a disparate-treatment claim under Title VII, an applicant need show only that his or her need for an accommodation was a motivating factor in the employer’s decision, not that the employer actually knew of the applicant’s need. Specifically, the Court held that Abercrombie’s decision not to hire an applicant was motivated by the applicant’s headscarf and it acted with the motive of avoiding the need for accommodating a religious practice in violation of Title VII. More recently, the EEOC sued a Philadelphia restaurant Rotten Ralf’s alleging that the restaurant violated federal law when it refused to allow a server to wear a religious headscarf as a reasonable accommodation of her religious beliefs and instead fired her because of her religion, Muslim. See http://www.eeoc.gov/eeoc/newsroom/release/7-9-15.cfm for the EEOC’s press release.
These cases highlight the need for employers to carefully consider image/appearance-based policies and avoid using stereotypes or being excessively inflexible in hiring employees.
Religious Discrimination And Employment Policies
An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment. For example, if an employer holds religious services or programs or includes prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship.
Conclusion
Employers seeking to reduce the risk of religious discrimination claims should be proactive in developing hiring practices that do not violate Title VII and avoid policies that make religious belief or observance a requirement for employment. Because the same principles that apply to sexual harassment also apply to religious harassment, employers should implement a harassment policy that addresses all forms of harassment including but not limited to religious harassment. Having a policy alone is insufficient. Employers should also educate their management team about the protections of Title VII and how to respond to complaints of harassment. When faced with potential religious accommodation issues, employers should act carefully and seek legal counsel when needed, especially where the accommodation may be at odds with the employer’s image/appearance policy.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
