Managing Religious Diversity and Harassment in the Workplace

Introduction

Because the U.S. workforce is radically more diverse, conventional legal notions of discrimination and harassment relating to race, gender, and other categories are growing in complexity alongside the expanding population. Arguably none of this variation is met with less preparedness than the recent growth in legal complaints associated with religion in the workplace. The intersection of personal and professional life is rarely more fraught than in the area of religion. The liberty to follow one's religion is a foundational principle of democratic government, but that liberty in daily life inevitably overlaps with work. For instance, a worker may wish to display a religious passage in his or her workspace, read the Bible or Quran at work, or raise religious topics with coworkers in the same way another employee might discuss a favorite sports team.

It is important to understand the law regarding favoritism and harassment in matters of religion. Religious harassment can be defined as being singled out for mistreatment because of one's religious affiliation, particularly when that treatment makes it difficult to perform one's job. Under Title VII, an employer has an affirmative obligation to maintain a work environment free of harassment, threats, and repeated offense. Proselytizing may rise to the level of harassment. An employer's duty extends to situations where he or she knows of the harassment — or has reason to know — and does nothing to correct the condition. If fellow employees are creating a hostile work environment through religious harassment, the worker has an obligation to notify his or her supervisor. An employee may still file a discrimination complaint against the employer if the harassment continues after such notification has been given. The Supreme Court held that harassment need not severely affect an employee's psychological well-being to be actionable under Title VII, so long as the environment would reasonably be perceived — and is perceived — as hostile or abusive.

In the United States, people continue to report high levels of religious faith and participation. According to a 2003 Gallup poll, 61 percent of Americans reported that religion was a very important part of their lives, and an additional 24 percent said it was fairly important. Traditionally, Americans accepted other religious values as long as they were observed privately and were neither encouraged by government nor made a requirement of citizenship. In the second half of the twentieth century, however, religion has increasingly entered public space — including the workplace. This shift reflects a combination of growing religious awareness and a growing eagerness among people to express their religious beliefs outside their homes and places of worship.

The number of religious harassment and discrimination claims has risen considerably. According to the U.S. Equal Employment Opportunity Commission (EEOC), complaints of workplace harassment or dismissal based on religion increased from 1,388 in fiscal year 1992 to 2,572 in fiscal year 2003 (Harris, 2004). EEOC data show an 85 percent increase in religion-based charges filed against employers between 1992 and 2002. During the same period, cases in which reasonable cause was found grew by 285 percent, while cases in which no reasonable cause was found grew by 145 percent. This rise is particularly striking when compared to the 15.2 percent growth in the total number of employed persons over the same period. A significant portion of the increase reflects a backlash against Muslims and Sikhs following the 2001 terrorist attacks, though some of the growth can also be attributed to greater awareness of rights and available remedies (Harris, 2004).

How Religious Harassment Is Becoming Increasingly Important to Employees and Managers

Harassment and wrongful dismissal represent the most common forms of religious discrimination against Muslims in the workplace. For example, on December 6, 2003, The Washington Post reported on an Arab American waiter in Baltimore who was sent home from work because his name is Mohamed. A Trans State Airlines pilot was dismissed solely because of his religion. Muslim women who wear the hijab have also faced consequences in the workplace: a Pennsylvania police officer was prohibited from wearing her headscarf at work; a job applicant was denied a uniformed airline position; and an Arizona woman was dismissed from a rental car company. It is widely expected that women who wear the hijab face employment discrimination, much of which goes unreported. The Sikh community has similarly faced religious prejudice in the workplace, particularly following the post-9/11 surge in discrimination based on visible religious dress. Many cases have centered on men's turbans or uncut beards. A long-running court case involving Sikh Traffic Enforcement Agents in New York City was ultimately resolved in favor of the officers, affirming that they could not be dismissed for violating dress codes. Other Sikhs — including subway drivers, cab drivers, police officers, and attorneys — have fought for the right to wear turbans while on duty (Harris, 2004).

Sikh religious law also requires adherents to carry a ceremonial knife, which has at times created issues with employers. In one case reported by the Sikh Coalition, an employer initially banned the knife but reversed the prohibition following education and intervention by the Coalition. The dreadlocks worn by Rastafarians — a religiously sanctioned hairstyle — have similarly generated workplace disputes. Legal actions were brought against FedEx over firings related to dreadlocks, and Greyhound paid $33,500 to settle a discrimination case brought by a Rastafarian man in Buffalo, New York, who was denied a driving position in favor of less-qualified candidates. As part of the settlement, Greyhound was required to train its hiring officials on employment discrimination law and to distribute anti-discrimination policies and grievance procedures to all employees. Regarding Wiccans, one notable case involved a Wiccan hired as a prison chaplain in Wisconsin — a position she had previously filled as a volunteer with a demonstrated record of success. Her religious affiliation nonetheless generated significant opposition (Harris, 2004).

Many religious harassment cases involve managers or colleagues who demean an employee's religious beliefs or practices through verbal abuse or other disparaging behavior. Just as with suspected sexual or racial harassment, employers who are aware of such behavior and fail to act to prevent it may be held liable. Increasingly, however, employers face the added challenge of balancing requests from employees who wish to practice their faith on the job with the concerns of employees who find such expression offensive (Krukowski, 2001).

Both civil religion and workplace spirituality shift the institutional locus of religious expression from the church, synagogue, or mosque to another public organization — the state or the corporation. This raises fundamental questions of individual identity and potentially conflicting loyalties. Neither civil religion nor workplace theology adequately addresses the real conflicts often encountered by employees who are also practicing believers. Workers who are Jewish, Christian, or Muslim may have grounds to question their company's practices on religious or moral grounds. Institutionally promoting workplace theology in a for-profit organization is not the same as permitting individual employees to express their own beliefs and practices at work. A critical view of workplace theology should not be read as a rebuke of individuals who seek to live out their religious worldview at work; rather, it lays the groundwork for creating a level playing field for religious and spiritual expression among employees of all backgrounds (Harris, 2004).

Regulating religious expression in the workplace almost inevitably invites legal risk. An employee who is prohibited or restricted from religious expression at work may bring suit for religious discrimination or for violation of First Amendment rights. Conversely, an employer who freely permits religious expression may expose itself to a religious harassment lawsuit — or, in the case of a public employer, to a claim under the Establishment Clause of the First Amendment.

Workplace harassment claims present difficult problems for employers, particularly when the conduct and its resolution become entangled with an employee's religious beliefs. In Buonanno v. AT&T, a Christian employee refused to sign a document acknowledging his employer's diversity philosophy, which required employees to "fully recognize, appreciate and value the differences among all of us" (Deveney, 2004). He stated in writing and in meetings with human resources personnel that while he would not discriminate against or harass any other employee, he believed it was "wrong for any organization to try to make him fully appreciate and value any differences contrary to God's word" (Deveney, 2004). After his termination, he claimed his employer had failed to accommodate his religious beliefs. The court, while acknowledging that the company's policy reflected a legitimate business objective and that permitting employee-specific edits would complicate its uniform application, found that the company had not explained the intended meaning of the policy language, had not inquired into the employee's specific concerns, had not assured him that he would not be asked to abandon his beliefs, and had not attempted to find an accommodation. The employee was awarded approximately $150,000 in compensation (Deveney, 2004).

In Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997), the Seventh Circuit Court of Appeals held that a supervisor's proselytizing created a hostile work environment. Ives, a born-again Christian, believed his role as police chief should be guided by his faith. During work hours he made frequent religious remarks and regularly asked Venters, a dispatcher, whether she had attended church and discussed the state of her salvation. He told her she had a choice between "God's way" or "Satan's way," and that she would not continue working for him if she chose the latter. He also distributed religious materials to her while referring to her as an at-will employee. Venters did not object because she feared retaliation; when she eventually did ask him to stop, she was dismissed. The court held that Venters had a right to work free of Ives's religious coercion. The court further found that Venters could have sought an accommodation — namely, that Ives refrain from using work time for conversion efforts.

In another case, employee Wilson, a Roman Catholic, chose to wear an anti-abortion button to work that displayed an image of a fetus. Most employees reacted negatively; work was disrupted as employees gathered to debate the button, and some threatened to walk off the job. The employer offered Wilson three alternatives: wear the button only in her cubicle, cover the button while at work, or wear a button without the photograph. Wilson refused to cover or remove the button, citing a religious vow to be a "living witness." When she continued wearing it, strong opposition followed. The court found that, weighing the accommodation against both her religious vow and the reduction of workplace disruption, the employer could not reasonably be required to accommodate that specific request. These cases illustrate that Title VII of the Civil Rights Act of 1964 does not provide an unlimited right to religious expression at work — and that the concern of religion in the workplace is far from simple for managers, employers, and employees alike.

As businesses move further into the twenty-first century and compete more intensively for skilled labor, religion is increasingly a quiet but significant factor in both hiring and retention. It is becoming progressively more difficult to recruit highly skilled employees who have no desire to express their religious beliefs in the workplace. Hiring and retention therefore depend, in part, on the degree to which companies can accommodate the religious as well as professional needs of their potential workforce.

A recommended strategy for addressing religious issues in the workplace is for the employer to apply standards similar to those used in sexual harassment cases. Employers should assess: the frequency of the conduct; the severity of the conduct; whether the conduct was threatening or humiliating; and whether the conduct interfered with work performance. A legally sound, neutral policy prohibiting employees from engaging in non-work-related discussions that other employees find offensive raises the practical problem of defining what is offensive. Employers clearly have the right to restrict conduct that interferes with work, but banning religious discussion entirely while permitting discussion of other non-work topics would almost certainly violate Title VII (Krukowski, 2001).

Key Court Cases Involving Workplace Religious Harassment

Employees who seek observance of their religious beliefs and practices also bear a responsibility to help resolve conflicts between job duties and religious requirements. An employee should communicate with his or her employer about religious commitments at the time of hiring, or immediately upon becoming more observant if that change occurs during employment. To dispel any appearance that employees of a particular religion receive preferential treatment, employers should expressly state in written materials for applicants and employees that the company does not discriminate in hiring, promotion, benefits, or other terms and conditions of employment on the basis of religion. Employers should also confirm that any psychological or personality tests used in the hiring process have been evaluated against the EEOC's selection guidelines for non-discriminatory impact. A narrow exception may exist for employers with a religious mission, some of whom may qualify for "bona fide occupational qualification" status with respect to religious requirements.

Employers should ensure that every workplace has a written policy prohibiting religious harassment. This policy should be communicated to employees on a regular basis, should form part of a broader anti-discrimination policy, and should explicitly address religious discrimination and harassment. Company policies should be carefully worded to avoid making religious belief an implicit requirement of employment. General principles in a mission statement or other policy documents are acceptable — even when they draw on religious concepts or teachings — provided they are carefully phrased. However, a statement that implies personal religious belief is required to perform every job, such as "we will seek to know and do God's will in all we do," is not appropriate. When a company's founder wishes to make a personal statement of faith in a document describing why he or she established the company, that statement should be clearly identified as a personal statement rather than a company policy.

The Ford Motor Company's diversity policy states: "Diversity in the workplace includes all the differences that make each of us unique individuals. Differences such as culture, ethnicity, race, gender, nationality, age, religion, disability, sexual orientation, education, experiences, opinions, and beliefs are just some of the distinctions each person brings to the workplace. By recognizing, respecting, and valuing such differences, we take advantage of the benefits that diversity brings to the organization." Hallmark's diversity policy similarly states: "Diversity encompasses, but is not limited to, ethnic origin, religion, gender, age, sexual orientation, disability, lifestyle, economic background, regional geography, employment status, and thinking style."

Employers should also establish a complaint mechanism through which employees can report all forms of harassment, including religious harassment, to someone outside their direct chain of command. Employees should have access to alternate contacts so that no one is forced to report to someone with whom they feel uncomfortable. Supervisors should be carefully assessed and trained on all forms of harassment, including religious harassment. Employers should also anticipate and address common barriers to reporting — such as fear of retaliation or the belief that complaints will be ignored — by providing supplementary education and training and maintaining an open-door policy. As an additional safeguard, many employers have established anonymous internal or external hotlines exclusively for reporting harassment or discrimination. Employees who use such systems should be assured that their anonymity will be protected.

Some state regulations require employees to give their employer advance notice of anticipated absences for religious holidays. Employees may also use vacation days or unpaid personal days for religious observances. Employees are not required to explain or justify their religious beliefs to their employer; an employer is required to accommodate religious beliefs subject only to the undue hardship rule. When accommodation questions are not easily resolved, "employees should discuss the matter with their union representative, consult an attorney, or contact the EEOC or its state equivalent." These strategies foster a more respectful and productive workplace and, more practically, significantly reduce potential liability for punitive damages by demonstrating the employer's good-faith efforts in compliance with Title VII.

Conclusion

Rochelle, Dudley C.; Mendelson, Littler. "Increasing Religious Diversity Poses New Challenges for Employers." Retrieved from http://www.southerninstitute.org/Resources-GoodBusiness-Content(12).htm. Accessed February 4, 2005.