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Religion and the Workplace

David Schlottman presented "Religion and the Workplace" at the Collin County Bar Association Corporate Counsel Section meeting on January 10, 2019.

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Religion and the Workplace

  1. 1. © Jackson Walker L.L.P. 2015 www.JW.com Religion and the Workplace January 10, 2019 David Schlottman Jackson Walker LLP dschlottman@jw.com 214.953.6068
  2. 2. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com What do these have in common?
  3. 3. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Historical Context • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (U.S. Const. amend. I)
  4. 4. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Wisconsin v.Yoder, 406 U.S. 205, 215-16 (1972) • “Although a determination of what is a ‘religious’ belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”
  5. 5. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religion– An Ordering of Liberties in theWorkplace • If I am an employee, does my employer have to respect my religious beliefs? If so, when and what rights do I have? • If I am an employer, do my employees have to respect my religious beliefs? • What happens when individual and employer rights collide?
  6. 6. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Sources of Relevant Law • Title VII/Chapter 21 Texas Labor Code – Generally prohibits discrimination because of religious belief – Requires reasonable accommodation of religious belief and practice • Religious Freedom Restoration Act of 1993 – Federal law that “ensures that interests in religious freedom are protected” • Executive Order 11246 – Prohibits religious discrimination by government contractors • First Amendment – Protects right of free exercise – Creates potential causes of action against government employers
  7. 7. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com
  8. 8. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Liberty – ATrump Administration Priority • EO 13798 -- (82 Fed. Reg. 21675, May 4, 2017) – “It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom. ” – “All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.”
  9. 9. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Liberty – ATrump Administration Priority • October 6, 2017 – Attorney General Sessions issues memo, “Federal Law Protections for Religious Liberty.” • “[A]gencies considering potential enforcement actions should consider whether such actions are consistent with federal protections for religious liberty,” and consider issues under RFRA. • A statement of DOJ policy – not binding on other agencies – but does reflect presidential priorities
  10. 10. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Liberty – ATrump Administration Priority • U.S. v. Ozaukee Cnty., No. 2:18-cv-00343, (E.D. Wis. March 6, 2018) – DOJ alleges that county discriminated against employee and failed to accommodate her religious belief by requiring her to get a flu shot. • Dec. 2018 – UPS settles with EEOC for $4.9mm – EEOC alleged UPS’s “no-beard” rule failed to accommodate drivers’ religious beliefs
  11. 11. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com TitleVII – Religious Protections for Employees • (1) Prohibits discrimination on the basis of religious belief/practice • Except in limited circumstances • (2) Requires reasonable accommodation of religious belief/practice • Unless undue hardship
  12. 12. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com TitleVII –What qualifies as a “religious belief”? • Title VII definition – – “all aspects of religious observance and practice, as well as belief” – 42 U.S.C. § 2000e(j) • EEOC Compliance Manual – – A belief that is “religious in the person’s own scheme of things,” i.e., it is “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by … God.” – Includes theistic beliefs as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” • Is the belief “sincerely held” and does it concern “ultimate ideas” about “life, purpose, and death”?
  13. 13. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com A religion of one? • Formal recognition not required; the number of practitioners is irrelevant as a matter of theory • EEOC v. Allendale Nursing Centre, 996 F. Supp. 712 (W.D. Mich. 1998) – Belief that social security program is unbiblical and that obtaining a social security number would be a sin. – Court held that this was a sincerely held religious belief—despite having no other adherents in the record. • Practically, proving the religion of one may be more difficult
  14. 14. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religion or political view? • A religion is something more than a political view. • E.g. – Ku Klux Klan has been held to be a political view, not a religious belief – “the proclaimed racist and anti-semitic ideology of the organization to which [the plaintiff] belongs takes on . . ., a narrow, temporal and political character inconsistent with the meaning of 'religion' as used in § 2000e.” • Slater v. King Soopers, 809 F. Supp. 809 (D. Colo. 1992)
  15. 15. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com A belief may be religious despite offensive viewpoints. • The tenets of the belief do not determine whether the belief is a religion; it is the sincerely held nature of the belief. • Even offensive viewpoints may be a religion • Peterson v. Wilmur Commc’ns, Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002) – “Creativity”—a belief system based on ideals of white supremacy—held to be a religion for purposes of Title VII
  16. 16. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religion or personal preference? • Religion requires something more than a mere personal preference. • Brown v. Pena, 441 F. Supp. 1382 (S.D. Fla. 1977) – Employee claimed discrimination based on a “personal religious creed” of eating Kozy Kitten People/Cat Food – Employee claimed that doing so contributed “significantly” to his well-being and energy – Court holds that this is a personal preference; not a religion
  17. 17. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religion or satire? • Cavanaugh v. Bartelt, 178 F. Supp. 3d 819 (D. Neb. 2016) – Plaintiff claims failure to accommodate his belief system – Church of the Flying Spaghetti Monster (“FSMism”) – FSMism = a response to the theory of “Intelligent Design” that posits that the creator, if any, is just as likely to be a flying spaghetti monster as anything else. – Court holds that FSMism is a satirical response to theistic religion, not an actual religious belief. – “[A]n asserted belief might be so bizarre, so clearly non-religious in motivation, as not to be entitled to protection.”
  18. 18. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Is the belief “sincerely” held? • Typically, this is the key question • Hussein v. Waldorf-Astoria, 134 F. Supp. 2d 591 (S.D.N.Y. 2001) – Plaintiff claimed wearing a beard was “part of his religion” – but . . . – Plaintiff had not worn a beard at any time in his fourteen years of employment, had never mentioned his religious beliefs to anyone at the hotel, and simply showed up for work one night and asked for an on-the-spot exception to the no-beard policy – Summary judgment for employer based on lack of a sincerely held religious belief.
  19. 19. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Practice Pointers • A belief may be “religious” for purposes of Title VII, even though the belief may be: – Non-traditional; – Offensive; and – Shared by no one else • In most instances, the question should not be whether a belief or practice is “religious” • Instead, the question will usually be if and whether a reasonable accommodation can be made
  20. 20. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com TitleVII – Religious Protections for Employees • (1) Prohibits discrimination on the basis of religious belief/practice • Except in limited circumstances • (2) Requires reasonable accommodation of religious belief/practice • Unless undue hardship
  21. 21. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Discrimination • Title VII prohibits taking adverse employment actions because of an employee’s religious beliefs or practices (includes disparate treatment & hostile work environment) • Ex: Peterson v. Wilmur Commc’ns, Inc. – Plaintiff demoted after appearing in local newspaper discussing his belief in “Creativity”—a supposed religion based on principles of white supremacy – Plaintiff was a supervisor, who managed non-white employees—employer felt that Plaintiff was not qualified to supervise based on racist views – Court grants Plaintiff’s motion for summary judgment.
  22. 22. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Reverse Religious Discrimination • Theory that employer discriminates against employees by imposing employer’s religious views on employees • EEOC v. United Health Programs of America, No. 14-cv-3673 (E.D.N.Y.) – EEOC alleges that employer imposed system of religious belief called “Onionhead” on employees – Employer claimed Onionhead was a “conflict resolution” tool to improve corporate culture – EEOC contends it was a religion and that employees were required to light candles, chant, pray, and attend Onionhead counseling sessions. – Summary judgment to EEOC on issue of whether beliefs were religious in nature
  23. 23. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Exceptions to Religious Discrimination Provision • (1) Where religion is a bona fide occupational qualification – Jesuit school could give preference to Jesuit priests. Pime v. Loyola Univ. of Chicago, 803 F.2d 351 (7th Cir. 1986) – Requirement that pilots flying pilgrims to Mecca be Muslims was lawful. Kern v. Dynalectron Corp., 577 F. Supp. 1196 (N.D. Tex. 1983) • (2) Employer is a religious organization • (3) Institutions of higher learning supported by religious organizations or whose mission is propagation of particular religious beliefs
  24. 24. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Accommodation of Religious Beliefs and Practices • Title VII also requires accommodation of religious belief and practice – Unless accommodation would cause an undue hardship • Analogous concept to ADA accommodation obligations with some differences
  25. 25. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Interactive Process • Employee has the burden to request accommodation, but no “magic words” are needed • Upon request, Employer should engage in dialogue to assess possibility of reasonable accommodation. • If employer has objective basis to question the sincerity of the employee’s religious belief, the employer may “make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and that the belief or practice gives rise to the need for the accommodation.”
  26. 26. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Accommodation –What is reasonable? • Case-by-case assessment • Employee’s preferred accommodation does not have to be granted; only a reasonable accommodation must be made • Exs: modified schedules, shift swaps, job transfer or transfer of duties, modifying policies, etc.
  27. 27. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Accommodation –What is undue hardship? • Undue hardship = anything more than de minimis cost to accommodate religious practice. Trans World Airlines v. Hardison, 432 U.S. 63 (1977) • Note, this is a lower standard than the ADA, which defines undue hardship as an action requiring “significant” difficulty or expense
  28. 28. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Accommodation – Examples • Bruff v. N. Miss. Health Servs., 244 F.3d 495 (5th Cir. 2001) – Plaintiff = counselor who objected to providing counseling to homosexuals and others who would violate her religious beliefs – Requested that she be excused from providing such counseling – Court held that requested accommodation imposed more than a de minimis cost and was undue hardship – Other employees would have to cover duties and request presented other logistical problems with staffing, coverage, etc.
  29. 29. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Accommodation – Examples • Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) – Plaintiff is a Sikh who sought to wear a ceremonial blade (kirpan) at work – The size of the blade violated rules concerning possession of weapons in federal buildings – Plaintiff proposed three accommodations: (1) wearing a dulled blade; (2) working from home; or (3) working in a different federal building – Court affirmed finding of undue hardship: (1) dull blade would require security checks; (2) working from home was not feasible; and (3) same standards applied at all federal buildings
  30. 30. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Accommodation – Examples • Davis v. Fort Bend County, 765 F.3d 480 (5th Cir. 2014) – Employee requested day off to attend religious service on July 3. – Employee offered to come into work after service and also lined up a volunteer to cover the work while she attended the service; employer fired her after she did not report on July 3. – Fifth Circuit reversed trial court’s summary judgment – While causing employer to be short-staffed is typically undue hardship as a matter of law, that concern was mitigated by employer’s presentation of a volunteer to cover the shift.
  31. 31. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Accommodation – Examples • Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004) – Plaintiff was a member of the Church of Body Modification, which required her to wear facial jewelry – This conflicted with an employer’s appearance policy – Employer offered accommodation of wearing band aids to cover up piercings or using clear plastic retainers – Accommodation was reasonable
  32. 32. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Accommodation – Practice Pointers • Recall that even non-traditional practices may require accommodation • Following EEOC v. Abercrombie & Fitch, employers may need to approach subject of accommodation where it has grounds to suspect that employee’s religious practices may conflict with employment requirements – Lack of actual notice unlikely to be a viable defense • Undue hardship is typically easier to establish than in the ADA context.
  33. 33. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com TitleVII Exceptions • Religion as “bona fide occupational qualification” • Religious institutions • “Ministerial Exception”
  34. 34. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Rights of Employers • Religious Freedom Restoration Act of 1993 • First Amendment – Do for-profit corporations have free exercise rights?
  35. 35. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Freedom Restoration Act • Passed almost unanimously in 1993 • Enacted in response to Smith, 494 U.S. 872 (1990) – Supreme Court ruled that rule prohibiting peyote smoking for recipients of unemployment benefits did not unconstitutionally infringe on native American’s religious beliefs • RFRA precludes the federal government from: – Substantially burdening a person’s exercise of religion even if the burden results in a rule of general applicability; unless – The government demonstrates that the burden (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling interest
  36. 36. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Religious Freedom Restoration Act • Known: – Applies to actions by the federal government – Unconstitutional as applied to the states, City of Borne v. Flores, 521 U.S. 507 (1997) – Closely held for-profit corporations are “persons” that can assert RFRA rights, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) • Uncertain: – Whether RFRA can be asserted in a private action not involving government parties – circuits are split – How RFRA interacts with employment discrimination laws
  37. 37. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com EEOC v. R.G. & G.R. Harris Funeral Homes • EEOC v. R.G. & G.R. Harris Funeral Homes (6th Cir. Mar. 7, 2018) – Plaintiff is a transgender woman who was assigned male at birth – Defendant is a religiously affiliated funeral home – Plaintiff began work as a male, but subsequently informed the funeral home she would undergo sex reassignment surgery and begin presenting as female. – Funeral home owner admits that he terminated plaintiff because of sex reassignment due to his sincerely held Christian religious beliefs
  38. 38. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com EEOC v. R.G. & G.R. Harris Funeral Homes • Funeral home asserts RFRA defense to EEOC enforcement action; district court grants summary judgment to funeral home • Sixth Circuit reverses • Employment of a transgender person did not “substantially burden” funeral home’s religious beliefs – “[A]s a matter of law, tolerating [plaintiff’s] understanding of her sex and gender identity is not tantamount to supporting it.” • Even if it did, the neutrally applicable anti-discrimination law survives strict scrutiny
  39. 39. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Pending RFRA Litigation • U.S. Pastor Council v. City of Austin, No. 1:18-cv-00849 (W.D. Tex. 2018) – Challenges Austin city ordinance that prohibits discrimination on basis of sexual orientation & gender identity • U.S. Pastor Council & Hotze Health and Wellness Center, 4:18-cv-00824 (N.D. Tex. 2018) – Challenges EEOC’s interpretation of Title VII as prohibiting discrimination on basis of sexual orientation & gender identity – Pending before Hon. District Judge Reed O’Connor
  40. 40. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com First Amendment? • Unclear at this point whether for-profit corporations are entitled to First Amendment free- exercise rights • Existing case law suggests they probably do – Dicta in Burwell – Court has firmly recognized corporate First Amendment rights • Recognition of corporate free-exercise rights could have dramatic implications for employment discrimination laws • Challenges could also come under the free-speech clause
  41. 41. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Compelled Expressive Conduct • Masterpiece Cakeshop v. Colorado Civil Rights Commission – Petitioner is a cake shop that refused to make cakes for same-sex marriages; found to have violated state public accommodation law – Does First Amendment prohibit state from requiring cake shop to do business with same-sex couples? – Cake shop argues that cake making is expressive conduct; if forced to make cakes for same-sex couples, this would force shop to make statements in violation of its religious beliefs. – Commission argues cake making is conduct, and the law does not compel speech in support of certain views. – Case decided on other grounds in favor of cake shop
  42. 42. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Compelled Expressive Conduct • Janus v. AFSCME – US Supreme Court strikes down law allowing mandatory payment of agency fees for public sector unions. – Agency fees = union dues for reputedly non-political administrative functions (grievance processing, etc.) – Court rules that everything about unions (even administrative functions) are inherently political. – Thus, forcing an individual to pay any dues whatsoever forces that individual to support the union’s political viewpoints – This is compelled speech in support of the Union’s political viewpoints, which violates the First Amendment
  43. 43. AUSTIN | DALLAS | FORT WORTH | HOUSTON | SAN ANGELO | SAN ANTONIO | TEXARKANA www.JW.com Are employer religious rights and anti-discrimination statutes on a collision course? • (1) Trend towards expansion of corporate First Amendment rights – Explicit recognition of corporate free exercise rights would spur numerous challenges • (2) Increasing recognition of First Amendment free-speech implications of compelled expressive conduct – Is accommodation of religious belief in employment effectively compelled speech in favor of that belief? • (3) A conservative court (becoming more conservative?) • (4) Polarized political moment
  44. 44. © Jackson Walker L.L.P. 2015 www.JW.com Religion and the Workplace January 10, 2019 David Schlottman Jackson Walker LLP dschlottman@jw.com 214.953.6068

David Schlottman presented "Religion and the Workplace" at the Collin County Bar Association Corporate Counsel Section meeting on January 10, 2019.

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