This article will summarize the avenues employees may use to claim religious discrimination in the workplace. Title VII of the Civil Rights Acts ensures freedom from religious discrimination. “Title VII of the Civil Rights act of 1964, as amended in 1972, prohibits employers from discriminating against an employee based on that employee’s religion. 42 U.S.C. § 2000e-2(a).
The term “religion,” as used within the provisions of Title VII, encompasses “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.” Id. § 2000e(j). Thus, where an employee’s bona fide religious belief or practice conflicts with an employment requirement, Title VII requires the employer “to accommodate [the belief or practice], within reasonable limits.” E.E.O.C. v. Union Independiente De La Autoridad De Acueductos Y Alcantarillados De P.R., 279 F.3d 49, 55 (1st Cir.2002).” Cloutier v. Costco Wholesale, 311 F.Supp.2d 190, 195 (D.Mass.,2004); See also, Virts v. Consol. Freightways Corp. of Delaware, 285 F.3d 508, 516 (C.A.6 (Tenn.),2002) (“Specifically, the statute provides that it is unlawful for an employer to “discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … religion[.]” Id. The term “religion” as used within Title VII includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).”).
OVERVIEW OF CHAPTER
There are two primary claims employees can make regarding religious discrimination. Both are based upon violations of Title VII. The first is a disparate treatment claim of religious discrimination and the other is a failure to accommodate claim of religious discrimination. Each theory has its own separate requirements. The elements of a prima facie case differ, depending upon which theory of religious discrimination a plaintiff pursues. “[A] plaintiff in a Title VII religious discrimination action has two legal theories available for the prosecution of his claims: ‘disparate treatment’ and ‘failure to accommodate.’ ” Breech v. Alabama Power Co., 962 F.Supp. 1447, 1456 (S.D.Ala.1997), aff’d, 140 F.3d 1043 (11th Cir.1998); see also Wilshin v. Allstate Insurance Co., 212 F.Supp.2d 1360, 1370-71 (M.D.Ga.2002) (same) (citing Chalmers v. Tulon Company of Richmond, 101 F.3d 1012, 1017-18 (4th Cir.1996)); Tillery v. ATSI, Inc., 242 F.Supp.2d 1051, 1060 (N.D.Ala.,2003); See also, Martin v. Enterprise Rent-a-Car , 2003 WL 187432, 7 (E.D.Pa.) (E.D.Pa.,2003)(“Employees may assert two theories of religious discrimination: “disparate treatment” and “failure to accommodate.” The “disparate treatment” prima facie case for religious discrimination differs from the prima facie case for failure to accommodate, ….”.).
Thus although both the disparate treatment claims and the failure to accommodate claims are asserted under Title VII, they both have separate requirements to prove a prima facie case and separate issues. Title VII is the statutory source for Tyson’s claim of religiously motivated discharge (discussed below) and her claim for failure to accommodate. At the prima facie stage, however, the two claims have different focal points. The discharge inquiry focuses on the extent to which Tyson’s religious beliefs and affiliation motivated Clarian’s decision to terminate her employment. The accommodation test focuses on the extent to which Tyson’s external religious practices influenced the adverse employment action.” Tyson v. Methodist Health Group, Inc., 2004 WL 1629538, *4 (S.D.Ind.,2004).
One question that people sometimes have is with regard to the origin of the reasonable accommodation theory since other Title VII discrimination claims such as sex and race do not really have any similar theory. The answer is that Title VII was amended in 1972 and at that point Congress added the reasonable accommodation language only with regard to religious discrimination. “Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s … religion.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). Unlike the later-enacted Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., Title VII does not explicitly define discrimination as a failure to accommodate. See 42 U.S.C. § 12112(b)(5). Instead, in a provision added in 1972, Title VII defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j) [§ 701(j) of Title VII of the Civil Rights Act of 1964] (emphasis added). Lawson v. State of Washington 319 F.3d 498, 499 -500 (9th Cir. 2003). In addition to the two theories outlined above, there is also a religious harassment theory which is similar to sexual harassment.
DISPARATE TREATMENT RELIGIOUS DISCRIMINATION
As with sex and gender discrimination under Title VII, violations of an employee’s rights under Title VII can be proven with either direct evidence or indirect evidence. “To prove a Title VII disparate treatment claim, a plaintiff must establish a prima facie case of discrimination. A prima facie case may be demonstrated by direct evidence of discriminatory intent or may be based on a presumption arising from factors set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994); Tucker v. Reno, 205 F.Supp.2d 1169, 1173 (D.Or.,2002).
Courts have set forth the standards for establishing a prima facie case of religious discrimination under Title VII. “When a plaintiff alleges that she was subjected to disparate treatment because of her religious beliefs, she must establish the following prima facie elements: (1) she was a member of and/or practiced a particular religion; (2) she was qualified to perform her job; (3) she was subjected to an adverse employment action; (4) defendant treated similarly-situated employees outside plaintiff’s religious class more favorably; and (5) the person who made the decision to impose the adverse employment action upon plaintiff was aware of her religious beliefs. See Lubetsky, 296 F.3d at 1305-06; Wilshin, 212 F.Supp.2d at 1371 (citing Breech, 962 F.Supp. at 1457; Gunning v. Runyon, 3 F.Supp.2d 1423, 1428 (S.D.Fla.1998); Tillery v. ATSI, Inc., 242 F.Supp.2d 1051, 1060 -1061 (N.D.Ala.,2003).
In order to establish a claim of intentional religious discrimination the employee must prove that the decision maker who made the decision to effectuate the adverse employment action knew the plaintiff’s religion. “More specifically, where intentional religious discrimination under Title VII is alleged, a prima facie case is established if the plaintiff demonstrates the challenged employment decision was made by someone who was aware of the plaintiff’s religion. See generally Beasley v. Health Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir.1991) (noting the prima facie case for discriminatory discharge based on a plaintiff’s religious practices is established by showing: (1) the practices are religious in nature; (2) the plaintiff called the religious practices to the employer’s attention; and (3) the religious practices were the basis of the plaintiff’s discharge); cf. Clay v. Holy Cross Hosp., 253 F.3d 1000, 1005-07 (7th Cir.2001) (holding plaintiff failed to establish a prima facie case of pregnancy discrimination even though she was visibly pregnant where she could not prove the person who decided to terminate her employment knew she was pregnant); Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 580- 82 (3d Cir.1996) (holding plaintiff failed to establish a prima facie case of pregnancy discrimination even though she told six co-workers she was pregnant where she could not provide any evidence the person who decided to terminate her employment knew she was pregnant); Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir.1987) (concluding the McDonnell Douglas elements did not rationally create an inference of intentional discrimination even though plaintiff filled out an application for employment and checked a box indicating his race, where plaintiff offered no evidence the decision-makers knew or saw the information concerning his race).
An employer cannot intentionally discriminate against an individual based on his religion unless the employer knows the individual’s religion. See Robinson, 847 F.2d at 1316 (indicating plaintiff could not establish a prima facie case where there was no evidence the decision-maker knew plaintiff belonged to a protected class). Therefore, when we evaluate a charge of disparate treatment employment discrimination, we must focus on the actual knowledge and actions of the decision-maker. Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir.2002), citing Bass v. Bd. of County Comm’rs, 256 F.3d 1095, 1105 (11th Cir.2001); Lubetsky v. Applied Card Systems, Inc., 296 F.3d 1301, 1305 -1306 (11th Cir.(Fla.),2002).
A requisite element of a prima facie case of disparate treatment religious discrimination is proof that the decision maker knew the employee’s religion. “Thus, it is necessary to prove that the decision maker had knowledge of the employee’s religion. It is necessary for a plaintiff attempting to establish a prima facie case of intentional religious discrimination under Title VII to demonstrate the challenged employment decision was made by someone who had knowledge of the plaintiff’s religion.” Lubetsky, 296 F.3d at 1307.
Courts employ the same three-prong burden shifting analysis in religious discrimination cases as they use in sex and race discrimination cases. “To prove a claim under the “disparate treatment” theory of religious discrimination, the plaintiff must demonstrate that (1) he is a member of a protected class, (2) he was qualified and rejected for the position sought, and (3) nonmembers of the protected class were treated more favorably. Abramson v. William Patterson College of New Jersey, 260 F.3d 265, 281-82 (3d Cir.2001). As in the case of a claim for discrimination based on race under Title VII, if an employee shows, by a preponderance of the evidence, a prima facie case of discrimination, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions against the employee. McDonnell Douglas, 411 U.S. at 802. If the employer can meet this burden, then the burden shifts back to the employee to prove, by a preponderance of the evidence, that the reasons articulated by the defendant were actually pretext for discriminatory practices. Id. at 804.” Martin v. Enterprise Rent-a-Car, 2003 WL 187432, *7 (E.D.Pa.) (E.D.Pa.,2003).
When courts analyze disparate treatment claims they focus on the way the employee was treated vis-à-vis the other employees. “Disparate treatment” requires a showing that Plaintiff was “subjected to adverse employment action, under circumstances giving rise to an inference of prohibited discrimination.” Fitzgerald v. Henderson, 251 F.3d 345, 356 (2d Cir.2001); See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “[A] disparate treatment claim looks at how an individual was treated compared to her similarly situated coworkers.” Smith v. Xerox Corp., 196 F.3d 358, 370 (2d Cir.1999); Yisrael v. Per Scholas, Inc., 2004 WL 744485, *3 (S.D.N.Y.,2004).
When an employer presents a legitimate nondiscriminatory reason for the adverse employment action, the court will accept that unless the plaintiff can show it is pretextual. Courts will not superimpose their beliefs on the employer’s as long as the employer’s nondiscriminatory rationale for the action it took is proven by admissible evidence. “A plaintiff is not allowed to recast an employer’s proffered nondiscriminatory reasons or substitute [her] business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason…. We have recognized previously and we reiterate today that: [f]ederal courts do not sit as a super-personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, [the relevant federal civil rights statute] does not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation of its behavior.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.2000) (en banc) (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)) (other citations omitted); see also, e.g., Denney v. City of Albany, 247 F.3d 1172, 1186 n. 8, 1188 (11th Cir.2001); Damon, 196 F.3d at 1361 (“We have repeatedly and emphatically held that a defendant may terminate an employee for a good or bad reason without violating federal law. We are not in the business of adjudging whether employment decisions are prudent or fair.”) (internal citation omitted). Accordingly, plaintiff’s discriminatory termination claim is due to be dismissed.” Tillery v. ATSI, Inc., 242 F.Supp.2d 1051, 1062 (N.D.Ala.,2003).
FAILURE TO ACCOMMODATE RELIGIOUS DISCRIMINATION CLAIMS
Courts have similarly set forth the requisite elements of a failure to accommodate claim. “To establish a prima facie case of religious discrimination based on a failure to accommodate, plaintiff Vélez must show that (1) a bona fide religious practice conflicts with an employment requirement; (2) she brought the practice to defendant Progreso’s attention; and (3) the religious practice was the basis for the adverse employment decision.” Unión Independiente, 279 F.3d at 55 (citations omitted); Velez-Sotomayor v. Progreso Cash and Carry, Inc., 279 F.Supp.2d 65, 72 -73 (D.Puerto Rico,2003); See also, Tillery v. ATSI, Inc., 242 F.Supp.2d 1051, 1060 (N.D.Ala.,2003)( “When a plaintiff alleges that an employer failed to reasonably accommodate a requirement of her particular religion, the plaintiff must demonstrate that: (1) she had a bona fide religious belief that conflicts with an employment requirement; (2) she informed her employer about the belief and the conflict; and (3) she was discharged or disciplined for failing to comply with the conflicting employment requirement.) E.g., Lubetsky v. Applied Card Systems, Inc., 296 F.3d 1301, 1306 n. 2 (11th Cir.2002) (collecting cases from other circuits); Wilshin, 212 F.Supp.2d at 1372; Breech, 962 F.Supp. at 1459; see also 42 U.S.C. § 2000e(j); Martin v. Enterprise Rent-a-Car, 2003 WL 187432, *9 (E.D.Pa.) (E.D.Pa.,2003) (“To establish a claim of failure to accommodate on religious grounds under Title VII, Martin must show that: (1) he holds a sincere religious belief that conflicts with a job requirement; (2) he informed Enterprise of the conflict; and (3) he was disciplined for failing to comply with the conflicting requirement.) Shelton v. Univ. of Med. & Dentistry of New Jersey, 223 F.3d 220, 224 (3d Cir.2000); See also, Vaughn v. Waffle House, Inc., 263 F.Supp.2d 1075, 1080 (N.D.Tex.,2003)(“A plaintiff establishes a prima facie case of religious discrimination when he demonstrates: (1) that he has a bona fide religious belief that conflicts with an employment requirement; (2) that he informed his employer of this belief; and (3) that he was discharged for failing to comply with the conflicting employment requirement.) Bruff v. North Mississippi Health Srvs., Inc., 244 F.3d 495, 499 n. 9 (5th Cir.), cert. denied, 534 U.S. 952, 122 S.Ct. 348, 151 L.Ed.2d 263 (2001)(citing Weber v. Roadway Express, 199 F.3d 270, 273 (5th Cir.2000); See also, Yisrael v. Per Scholas, Inc. 2004 WL 744485, *3 (S.D.N.Y.,2004)(“Even without a showing that other employees were treated more favorably, an employee can establish a prima facie case of “failure to accommodate” religious beliefs by showing that: (1) he has a bona fide religious belief that conflicts with an employment requirement; (2) he informed the employer of this belief; and (3) he was disciplined for failure to comply with the conflicting employment requirement. (citation omitted).”).
Courts utilize a two-prong analysis for failure to accommodate cases.
Initially, the plaintiff must establish a prima facie case of failure to accommodate and then the defendant must establish that it has provided a reasonable accommodation or that to do so would be an undue burden. “The First Circuit applies a two-part framework, developed in other Title VII contexts, to analyze a Title VII claim for religious discrimination. Union Independiente, 279 F.3d at 55. First, the plaintiff must “establish a prima facie case of religious discrimination based on a failure to accommodate.” Union Independiente, 279 F.3d at 55. The plaintiff must show that “(1) a bona fide religious practice conflicts with an employment requirement, (2) he or she brought the practice to the [employer’s] attention, and (3) the religious practice was the basis for the adverse employment decision.” Id. (internal quotations and citations omitted). Second, if the plaintiff establishes a prima facie case, then the burden shifts to the employer “to show that it made a reasonable accommodation of the religious practice or show that any accommodation would result in undue hardship.” Id. Cloutier v. Costco Wholesale, 311 F.Supp.2d 190, 195 -196 (D.Mass.,2004); See also, Tyson v. Methodist Health Group, Inc., 2004 WL 1629538, *4 (S.D.Ind.,2004) (“To establish a prima facie case of religious discrimination by failure to accommodate, a plaintiff must show that: (1) she follows a bona fide religious practice that conflicts with an employment requirement; (2) she brought the practice to the employer’s attention; and (3) the religious practice was the basis for an adverse employment action. EEOC v. United Parcel Service, 94 F.3d 314, 317-18 (7th Cir.1996), citing Wright v. Runyon, 2 F.3d 214, 216 n. 4 (7th Cir.1993). The employer may respond to the prima facie case by proving either that it offered a reasonable accommodation that the employee did not accept, or that it was unable to provide a reasonable accommodation without undue hardship. See EEOC v. United Parcel Service, 94 F.3d at 318, citing Wright, 2 F.3d at 217. The employer bears the burden of proof on these issues. EEOC v. Ilona of Hungary, 108 F.3d at 1576. An employee is not required to propose a specific accommodation. Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir.1978).”)
Courts have held that although a religious observance or practice can form the basis for an adverse employment action if the employer proves he cannot provide a reasonable accommodation because to do so would be an undue burden the same is not true for religious beliefs which can never be the basis for an adverse employment action. Under Title VII, “‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s … religious observance or practice without undue hardship on the employer’s business.” Id. § 2000e(j). In other words, if accommodating an employee’s religious observances or practices would cause the employer undue hardship, those observances or practices are exempted from the definition of religion and can, therefore, lawfully motivate an adverse employment action. See Id.
Thus, where a plaintiff seeks accommodation of a ‘religious observance or practice,’ the defendant can avoid liability entirely by demonstrating either reasonable accommodation of the observance or practice, or that accommodation would result in an undue hardship. Ilona of Hungary, 97 F.3d at 211. However, the accommodation clause of the definition applies only to ‘religious observance[s] or practice[s],’ not religious belief. See 42 U.S.C. § 2000e(j). The language of the definition makes clear that the omission of ‘belief’ from the accommodation clause was intentional. The first clause of the definition states that ‘religion’ means ‘observance and practice, as well as belief.’ However, the second clause exempts from the definition ‘observance [s] or practice[s]’ which would result in an undue hardship on the employer, but not beliefs. Id. Thus, under the canon of statutory interpretation expressio unis, [the court] must conclude that a religious belief is never exempted from the definition of ‘religion’ under Title VII and, therefore, cannot lawfully form the basis for an adverse employment action.” Peterson v. Wilmur Communications, Inc., 205 F.Supp.2d 1014, 1019 -1020 (E.D.Wis.,2002).
Courts use the same analysis in hostile work environment claims based upon religion as they do for sexual harassment hostile work environment claims. “While the Eleventh Circuit apparently has not addressed a hostile work environment claim based on a plaintiff’s religion, this court finds that the test applied to hostile work environment claims based on other prohibited characteristics (e.g., sex, race, or national origin) is equally applicable to the assessment of a religiously-hostile work environment claim. See Id. at 975 (observing that, ‘as Meritor itself reveals, the federal courts have been applying hostile environment principles to harassment based on race, religion, and national origin as well as sex in the twenty-five years since the Fifth Circuit’s ground breaking decision in Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972); See 477 U.S. at 65-66, 106 S.Ct. at 2405.’)”. Tillery v. ATSI, Inc. , 242 F.Supp.2d 1051, 1063 (N.D.Ala.,2003).
Courts have made clear that Title VII prohibits all harassment and would apply equally to religious harassment claims. “As the Supreme Court observed in Meritor Savings Bank, FSB v. Vinson, ‘the phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment …’ in employment.” 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) (citations omitted). Consequently, the reach of Title VII is not limited solely to discrimination that can be described as “economic” or “tangible.” Meritor, 477 U.S. at 64, 106 S.Ct. at 2404. It extends to workplace harassment that is attributable to the plaintiff’s sex, as Meritor made clear, as well as to her religion. Id. at 66, 106 S.Ct. at 2405 (citing Compston v. Borden, Inc., 424 F.Supp. 157 (S.D.Ohio 1976)); Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993); Iovin v. Northwestern Mem. Hosp., 916 F.Supp. 1395, 1409 (N.D.Ill.1996) (Castillo, J.); Shapiro v. Holiday Inns, Inc., 1990 WL 44472, *9 (N.D.Ill. April 6, 1990) (Kocoras, J.); see also, e.g., Ellis v. Wal-Mart Stores, Inc., 952 F.Supp. 1513, 1518 (M.D.Ala.1996); Goldberg v. City of Philadelphia, 65 Empl. Prac. Dec. para. 43,221, 1994 WL 313030, *10-11 (E.D.Pa. June 29, 1994); Turic v. Holland Hospitality, Inc., 849 F.Supp. 544, 551 (W.D.Mich.1994), aff’d. in part & rev’d in part on other grounds, 85 F.3d 1211 (6th Cir.1996); Turner v. Barr, 811 F.Supp. 1, 2 (D.D.C.1993); Weiss v. United States, 595 F.Supp. 1050, 1056 (E.D.Va.1984). Venters v. City of Delphi, 123 F.3d at 974-75 (emphasis supplied).” Tillery v. ATSI, Inc., 242 F.Supp.2d 1051, 1063 (N.D.Ala.,2003); See also, Tyson v. Methodist Health Group, Inc., 2004 WL 1629538, *10 (S.D.Ind.,2004) (“While many harassment cases brought under Title VII focus on claims of sexual harassment, courts have recognized that claims of religious harassment are also actionable under Title VII. Venters, 123 F.3d at 975 (reversing summary judgment for employer on claim of religious harassment).” ).
Courts apply the same factors in religious harassment cases to determine if there is a hostile work environment as they do in sexual harassment cases. “Whether or not the plaintiff’s work environment may be considered ‘hostile’ for purposes of Title VII is an assessment that depends on the totality of the circumstances. Harris v. Forklift Systems, Inc., 510 U.S. [17,] 23, 114 S.Ct. [367,] 371 [126 L.Ed.2d 295 (1993) (holding that a Title VII hostile work environment claim is established upon proof that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir.1993). Factors pertinent to this analysis include ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ Harris, 510 U.S. at 23, 114 S.Ct. at 371; Saxton, 10 F.3d at 534. Whether, on balance, the harassment was ‘sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment’ (Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (internal quotation marks and citations omitted)) must be judged both from an objective viewpoint (i.e., that of the reasonable person) and from the subjective viewpoint of the plaintiff herself. Harris, 510 U.S. at 21-22, 114 S.Ct. at 370; Saxton, 10 F.3d at 534 (collecting cases). Venters v. City of Delphi, 123 F.3d at 975-76 (bracketed alterations added)’. Tillery v. ATSI, Inc., 242 F.Supp.2d 1051, 1064 (N.D.Ala.,2003). See also, Martin v. Enterprise Rent-a-Car, 2003 WL 187432, *7 (E.D.Pa.) (E.D.Pa.,2003)(‘In order to establish a hostile work claim, a plaintiff must show that (1) he suffered intentional discrimination because of his race or religion; (2) the discrimination was pervasive and regular; (3) it detrimentally affected him; (4) it would have detrimentally affected a reasonable person of the same protected class in his position; and (5) there is a basis for vicarious liability.’ Hussein v. Genuardi’s Family Mkt., No. 00-CV-4905, 2002 WL 56248, at *8 (E.D.Pa. Jan.15, 2002) (citing Cardenas v. Massey, 269 F.3d 251 (3d Cir.2001)). The Supreme Court has emphasized that ‘whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir.1996) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).”
Courts routinely hold that for harassment to violate Title VII it must be severe and pervasive. “Harassment is actionable under Title VII if it is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). In determining whether the conduct created a hostile environment, courts must consider several factors, including the conduct’s frequency, severity, whether it was physically threatening or humiliating, or just a mere offensive utterance, and whether it created an abusive working environment. See Mosher v. Dollar Tree Stores, Inc., 240 F.3d 662, 668 (7th Cir.2001); Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir.1999). To be actionable, the behavior must be offensive both objectively and subjectively: a reasonable person would find it hostile or offensive, and the individual employee must have found it offensive. Faragher, 524 U.S. at 787; Dey v. Colt Const. and Dev. Co., 28 F.3d 1446, 1454 (7th Cir.1994).” Tyson v. Methodist Health Group, Inc., 2004 WL 1629538, *10 (S.D.Ind.) (S.D.Ind.,2004).
Courts require plaintiffs claiming religious discrimination to establish a prima facie case of discrimination by either demonstrating disparate treatment or a failure to accommodate. Once a plaintiff has done this, courts employ a McDonnell Douglas burden-shifting analysis. “A Title VII plaintiff must carry the initial burden under the statute of establishing a prima facie case of discrimination.” See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In religious discrimination cases, a plaintiff can meet this initial burden by making a prima facie showing disparate treatment or failure to accommodate his religious beliefs. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003) (noting that a showing of disparate treatment “is a recognized method of raising an inference of discrimination for the purposes of making a prima facie case” of religious discrimination); Knight v. Connecticut Dept. of Public Health, 275 F.3d 156, 167 (2d Cir.2001) (establishing a prima facie case by showing a failure to accommodate employee’s religion) (citation omitted). If the Plaintiff establishes a prima facie case, the burden then shifts to his employer to demonstrate that it could not accommodate his religious needs without undue hardship. See Knight, 275 F.3d at 167; McDonnell Douglas, 411 U.S. at 802 (“The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”). Yisrael v. Per Scholas, Inc., 2004 WL 744485, *2 (S.D.N.Y.) (S.D.N.Y.,2004). See also, Velez-Sotomayor v. Progreso Cash and Carry, Inc., 279 F.Supp.2d 65, 73 (D.Puerto Rico,2003)”)(“As in other Title VII cases, courts apply the three-prong McDonnell Douglas burden shifting analysis to religious discrimination cases under Title VII. Once Vélez establishes a prima facie case, the burden shifts to Progreso to show that it made a reasonable accommodation of the religious practice or show that any accommodation would result in undue hardship. (citations omitted)”;Martin v. Enterprise Rent-a-Car, 2003 WL 187432, *9 (E.D.Pa.) (E.D.Pa.,2003)(“Once the employee establishes a prima facie case, the employer may defend in two ways: (1) by demonstrating that it has offered a “reasonable accommodation;” or (2) by demonstrating that the accommodation sought cannot be accomplished without undue hardship. See United States v. Bd. of Educ. for Sch. Dist. of Phila., 911 F.2d 882, 886-87 (3d Cir.1990).
One question that often arises is what is considered a reasonable accommodation? Courts have made clear that the employer does not have to provide the precise accommodation that the employee has requested to demonstrate that it has provided a reasonable accommodation. “A reasonable accommodation of an employee’s religion is one that “eliminates the conflict between employment requirements and religious practices.” Philbrook, 479 U.S. at 70; Rodriguez v. City of Chicago, 156 F.3d 771, 775 (7th Cir.1998). “Title VII … requires only ‘reasonable accommodation,’ not satisfaction of an employee’s every desire.” Wright, 2 F.3d at 217. Tyson v. Methodist Health Group, Inc., 2004 WL 1629538, *5 (S.D.Ind.,2004).
Other courts have similarly grappled with the issue of what constitutes a reasonable accommodation. “Once a plaintiff establishes a prima facie case of religious discrimination based on a failure to accommodate, the burden shifts to the employer to show that it offered the employee a reasonable accommodation of her religious practice or that any accommodation would result in undue hardship for the employer. See Union Independiente, 279 F.3d at 55; 42 U.S.C. § 2000e(j). The statute does not define the term “reasonable accommodation.” Likewise, the statute’s legislative history and EEOC guidelines provide no guidance in determining the extent of an employer’s accommodation obligation. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 75, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977) (“[T]he employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear, but the reach of that obligation has never been spelled out by Congress or by EEOC guidelines.”).
Courts facing the issue of whether an accommodation is “reasonable” have fashioned some rules or guidelines for the inquiry. The Seventh Circuit has held that an employer’s accommodation is not reasonable if the accommodation “does not eliminate the conflict between the employment requirement and the religious practice.” E.E.O.C. v. Ilona of Hungary, Inc., 97 F.3d 204, 211 (7th Cir.1996). The Fifth Circuit has suggested that a determination of reasonableness should focus on the cost to the employer, while also trying to balance the needs of the employer with the needs of the employee. E.E.O.C. v. Universal Mfg. Corp., 914 F.2d 71, 72-73 & n. 3 (5th Cir.1990) (“The range of acceptable accommodation under Title VII moderates the conflicting interests of both the employee and the employer: (1) it protects the employee by requiring that the accommodation offered be ‘reasonable;’ and (2) it protects the employer by not requiring any accommodation which would impose an ‘undue hardship.’”).
Not surprisingly, the courts of appeals have observed that the question of the reasonableness of an accommodation is to be determined on a case by case basis. Beadle v. Hillsborough County Sheriff’s Dep’t, 29 F.3d 589, 592 (11th Cir.1994); U.S. v. City of Albuquerque, 545 F.2d 110, 114 (10th Cir.1976). In a typical case, the issue of “reasonableness” may be left to the fact finder. Universal Mfg., 914 F.2d at 73; Cloutier v. Costco Wholesale, 311 F.Supp.2d 190, 197 -198 (D.Mass.,2004).
An employer can defend itself by demonstrating that it offered a reasonable accommodation. The accommodation does not necessarily have to be the best accommodation it just must be a reasonable one. “Once an employer offers a reasonable accommodation, its obligations under Title VII are satisfied. Philbrook, 479 U.S. at 68, 107 S.Ct. 367. Title VII does not require that an accommodation be absolute. Universal Mfg., 914 F.2d at 73. In other words, the accommodation offered by the employer does not have to be the best accommodation possible, and the employer does not have to demonstrate that alternative accommodations would be worse or impose an undue hardship. Wright v. Runyon, 2 F.3d 214, 217 (7th Cir.1993) (citing Philbrook, 479 U.S. at 68, 107 S.Ct. 367).” Cloutier v. Costco Wholesale, 311 F.Supp.2d 190, 198 (D.Mass.,2004).
Another issue that is significant to the reasonable accommodation issue is what is undue hardship? As already discussed, an employer is only required to accommodate an employee’s religious beliefs or practices when to do so would not amount to an undue hardship. As several courts have noted, an “undue hardship” is a fairly easy standard to meet. Indeed, the Supreme Court has construed the term “undue hardship” to mean a cost to the employer that is anything more than de minimis. See Hardison, 432 U.S. at 84, 97 S.Ct. 2264. See also Baz v. Walters, 782 F.2d 701, 706 (7th Cir.1986) (defendant need only introduce evidence to show that accommodation would create a hardship on his business; hardship has been construed as anything more than a de minimis cost to the employer). Moreover, the relevant costs may include not only monetary costs but also the employer’s burden in conducting its business. Equal Employment Opportunity Commission v. Oak-Rite Manuf. Corp., 2001 WL 1168156, *10 (S.D.Ind. August 27, 2001) (citing Beadle v. City of Tampa, 42 F.3d 633, 636 (11th Cir.), cert. denied, 515 U.S. 1152, 115 S.Ct. 2600, 132 L.Ed.2d 846 (1995) (citing Hardison, 432 U.S. at 84 n. 15, 97 S.Ct. 2264)).
If the employer cannot show that an accommodation would have involved anything more than a de minimis cost, what explanation can there be for the employer’s conduct other than that some invidious purpose is probably at work? See In re Employment Discrimination Litigation Against the State of Alabama, 198 F.3d 1305, 1321-1322 (11th Cir.1999) (asking the same question in upholding Title VII’s prohibition of practices or policies that have a disparate impact upon a particular race). It is evident that by giving employers such a broad exemption from liability, the core injury targeted by both Title VII and the Free Exercise Clause remains the same: intentional discrimination. Holmes v. Marion County Office of Family and Children, 184 F.Supp.2d 828, 835-836 (S.D.Ind.,2002). See also, Rose v. Potter, 2002 WL 31738799, *1 (N.D.Ill.) (N.D.Ill.,2002)(“If Rose could somehow establish a prima facie case for religious discrimination, the USPS must reasonably accommodate his religious observance unless it would result in an undue hardship. See Rodriguez v. City of Chicago, 156 F.3d 771, 775 (7th Cir.1998). Anything more than a de minimis cost on the employer, including disturbing the job preference of other employees, constitutes undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 81, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). Title VII does not ‘require an employer to discriminate against some employees in order to enable others to observe their Sabbath.’ Id. at 84. Importantly, accommodation does not require the USPS to take steps inconsistent with an otherwise valid collective-bargaining agreement or a seniority system. Id. at 82. Even if the USPS failed to accommodate Rose, doing so does not violate Title VII because the statute does not require accommodation where it would force the USPS to break from its routine seniority system and discriminate against those employees with more seniority than Rose.”); Cloutier v. Costco Wholesale, 311 F.Supp.2d 190, 199 (D.Mass.,2004) (“Finally, if the employer declines to offer an accommodation, the employer then must “demonstrate that any accommodation would have caused it undue hardship.” Ilona of Hungary, 97 F.3d at 211; Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir.1975) (stating that employers must demonstrate actual undue hardship because courts are “somewhat skeptical of hypothetical hardships”). “Undue hardship” has been defined by the Supreme Court as anything greater than a de minimis cost to the employer in accommodating the religious beliefs of an employee. Hardison, 432 U.S. at 84, 97 S.Ct. 2264. Again, in a typical case, the question of what constitutes undue hardship will usually be left to the finder of fact. Universal Mfg., 914 F.2d at 74.”).
It is difficult for employers to contest a religious discrimination claim on the basis that it is not really a religious belief. “The first element of the plaintiff’s prima facie case requires a demonstration that the plaintiff’s belief or practice is religious and that it is sincerely held. Id. at 56. At the summary judgment stage, the defendant will ordinarily face a difficult task in challenging the contention that the plaintiff’s belief is religious, no matter how unconventional the asserted religious belief may be. The First Circuit has stated that Title VII “leaves little room for a party to challenge the religious nature of an employee’s professed beliefs.” Id.” Cloutier v. Costco Wholesale, 311 F.Supp.2d 190, 196 (D.Mass.,2004).
Another difficult issue is how courts determine whether the belief in question is a religious belief that would be protected under Title VII. “The difficulty for an employer on this point derives not only from the elusiveness of the term “religious” but also from the fact that the employee’s religious beliefs need not be espoused by a formal religion or conventionally organized church. As the EEOC’s guidelines on religious discrimination recognize, “[t]he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee.” 29 C.F.R. § 1605.1. Moreover, the Supreme Court has recognized that Title VII’s protections are not limited to beliefs and practices that courts perceive as “acceptable, logical, consistent, or comprehensible to others.” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Indeed, it is well recognized that courts are poor arbiters of questions regarding what is religious and what is not. Daniels v. City of Arlington, Tex., 246 F.3d 500, 505 (5th Cir.2001) (stating that “it is improper for a court to assess what activities are mandated by religious belief”).
Within this broad framework, courts have grappled somewhat awkwardly with the question of what makes a particular belief “religious.” One district court has taken the approach that while “the court may not look to whether the [employee’s] religion mandates or requires the practice in question, the court may nonetheless note whether there is any connection between the [employee’s] religion and the asserted belief or practice.” Vetter v. Farmland Indus., Inc., 884 F.Supp. 1287, 1307 (N.D.Iowa 1995). Other courts have seemed to suggest that the existence of this “connection” is for the individual, and not the judge, to determine. Where some defendants have been unsuccessful in challenging an employee’s belief on the ground that it is not part of a bona fide religion, other defendants have been successful in proving, even at the summary judgment stage, that the belief or practice as asserted by the plaintiff is not mandated by the religion to which the employee supposedly adheres. Hussein v. The Waldorf-Astoria, 134 F.Supp.2d 591, 597 (S.D.N.Y.2001) (granting employer’s summary judgment claim after finding that evidence did not support employee’s claim of a bona fide religious belief). Contra Vetter, 884 F.Supp. at 1307, 1313 (concluding that there was a sufficient “connection” between the plaintiff’s asserted belief and his religion and denying defendant’s motion for summary judgment); Lambert v. Condor Mfg., Inc., 768 F.Supp. 600, 602 (E.D.Mich.1991) (denying defendant’s motion for summary judgment because there existed a question of fact regarding whether plaintiff’s opposition to nude pictures of women was “religious”).” Cloutier v. Costco Wholesale 311 F.Supp.2d 190, 196 -197 (D.Mass.,2004).
HOW IT RELATES TO YOU PERSONALLY
- If you believe that you have been discriminated against based upon your religion
If you believe that your employer has discriminated against you based upon your religion, you should contact Mark Carey at 203-255-4150 or firstname.lastname@example.org. You should at the very least attempt to preserve your legal rights by putting your claim in writing addressed to your company’s human resources or legal department. The company is required to conduct an investigation and will provide you with the results. Remember that you are protected once you have filed this claim and any adverse employment actions taken against you once you have filed a complaint could be considered to be retaliation.
- If you have been accused of discriminating against an employee based upon the employee’s religion
Usually your company’s human resource or legal department will conduct an investigation into the employee’s claim and provide the employee and you with the results of the investigation. Although Title VII does not provide for individual liability for managers in these situations, some state human rights laws (such as New York’s) may provide for individual liability. ‘Individual liability is sometimes possible, however, under New York’s Human Rights Law. Gregory v. Daly, 243 F.3d 687, 689 n. 1 (2d Cir.2001); Tomka, 66 F.3d at 1317; Mandell v. County of Suffolk ,316 F.3d 368, 377 (2nd Cir. 2003).
Employer Mandated Covid-19 Vaccinations for All Employees By Mark Carey Employers can now mandate all employees to get a Covid-19 vaccination as a condition of their employment without violating federal laws. This resolution was anticipated but it is unclear how the guidance will be followed after the population falls short of the so called herd ...
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