ALI-ABA Course of Study Current Developments in Employment Law July 24-26, 2008 Santa Fe, New Mexico

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1 633 ALI-ABA Course of Study Current Developments in Employment Law July 24-26, 2008 Santa Fe, New Mexico Religion and the Workplace: Harmonizing Work and Worship Some Recent Developments By Peter M. Panken Lisa J. Teich Epstein Becker & Green, P.C. New York, New York

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3 635 RELIGION AND THE WORKPLACE: HARMONIZING WORK AND WORSHIP SOME RECENT TRENDS AND DEVELOPMENTS by Peter M. Panken, Esq. and Lisa J. Teich, Esq. 1 Epstein Becker & Green, P.C. 250 Park Avenue New York, New York I. Introduction Geo-political and demographic factors such as globalization and immigration patterns, a focus on workplace diversity, and a renewed spiritual awakening prompted by September 11 th have combined to create a more religiously diverse and devoted workforce. Consequently, the proverbial wall separating religion from work is now crumbling, as more and more workers, whose beliefs about the role of religion in the workplace are antithetical to the American secular model and are bringing their religion into the workplace. This proliferation of religion in the workplace is creating new challenges for employers who are being increasingly inundated with requests for accommodation to the asserted religious requirements of individual employees from garden variety Sabbath observance to multiple prayer breaks to body piercing rituals and awkward faith-related situations (e.g., proposals to form affinity groups and prayer breakfasts, employee signoffs that quote scripture, intranet postings inviting co-workers to religious services, proselytizing, etc.). The number of requests for religious accommodations and religious discrimination charges filed with 1 Peter M. Panken is a Partner and Lisa J. Teich practices in the New York Office of Epstein Becker & Green, P.C. practicing Labor and Employment Law representing employers exclusively.

4 636 the Equal Employment Opportunity Commission ( EEOC ), the federal agency responsible for enforcing federal antidiscrimination laws, have risen sharply over the last decade, underscoring the growing pressure employers face to accommodate their employees diverse religious views, practices and expressions with the demands of the workplace. In fact, religious discrimination claims are currently the third-fastest growing discrimination claims, behind disability-based claims and sexual harassment claims, not to mention retaliation claims. A. Statutory Sources There are several statutory sources to start the study of prohibited employment discrimination on the basis of religion: (1) The First Amendment to the U.S. Constitution which provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.... (2) Title VII of the Civil Rights Act of 1964 ( Title VII ), which prohibits employment discrimination because of an individual s religion. 42 U.S.C. 2000e-2(a). But, there are exceptions: (a) (b) (c) where religion is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. 42 U.S.C. 2000e- 2(e)(i); for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if [the educational institution] is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum..., is directed toward the propagation of a particular religion. 42 U.S. C e- 2(e)(2). 42 U.S.C. 2000e(j) 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 an employee s or prospective - 2 -

5 637 employee s religious observance or practice without undue hardship on the conduct of the employer s business. (d) Title VII also prohibits retaliation against an individual for opposing employment practices that discriminate based on religion or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII. (3) State and Local Antidiscrimination Laws. See, Panken, A Stateby-State Survey of the Law on Religion in the Workplace (ALI- ABA 2001). II. Private Sector Employment: The Parameters of Protection for Religious Beliefs Title VII prohibits employers from discriminating against employees because of their religion. See 42 U.S.C. 2000e-2(a)(1). Specifically, Title VII prohibits employers from: See id. (i) treating employees or applicants more or less favorably with regard to hiring, firing and the terms or conditions of their employment because of their religious practices or beliefs (e.g., imposing stricter promotion requirements for persons of a certain religion, imposing different work requirements on an employee because of that employee s religious practices or beliefs); and (ii) forcing employees to either participate in, or abstain from participating in, a religious activity as a condition of employment. Title VII also requires employers to reasonably accommodate their employees sincerely held religious beliefs or practices that are in conflict with an employment requirement, unless the employer can show that accommodation would cause undue hardship to the employer's business. See 42 U.S.C. 2000e(j). A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. An employer might accommodate an employee s religious beliefs or practices by allowing: flexible scheduling, voluntary substitutions or swaps of shifts or days off, job reassignments and lateral transfers, - 3 -

DISCRIMINATION BASED ON RELIGION

DISCRIMINATION BASED ON RELIGION Prepared By: Chassidy J. Guidry Louisiana State University Paul M. Hebert Law Center Legal Intern, U.S. EEOC-Office of Equal Opportunity Religion in the Workplace Title