Category Archives: Religious Accommodation

NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy

The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.

Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.”  A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that: Continue reading NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy

2017 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2017 fiscal year.  According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.

In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces.  Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

NEW CASE: Wisconsin employees cannot waive claims under the Wisconsin Fair Employment Act

In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable.  Specifically, the Commission found:

  1. Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
  2. An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.

The Case

In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.

The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:

Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.

After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination.  While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA.  Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.

The Ruling

The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division.  Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.

NEW TOOL: The EEOC Makes It Easier For Employees To File Discrimination Charges

Watch out employers!  The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide.  With this new tool, employees are now able to easily initiate a charge with the EEOC.

Using this new system, employees are able to file a discrimination charge with the EEOC online.  In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation.  Specifically, employees who have filed an EEOC charge can use this new portal to:

  • Provide and update contact information;
  • Upload documents to the charge file;
  • Check the status of his or her charge;
  • Agree to mediation; and
  • Receive charge documents and messages from the EEOC.

AMENDED LAW: Illinois Human Rights Act Amended to Clarify Religious Accommodations

The Illinois Human Rights Act (IHRA) was recently amended to include the Religious Garb Law (Public Act 100-0100), which clarifies the religious accommodation requirements under the IHRA.

While the Religious Garb Law does amend the IHRA, it does not appear to impose any new requirements on employers.  Instead, it clarifies an employer’s existing obligations with respect to religious accommodation.  Specifically, the Religious Garb Law reminds employers that it is unlawful for an employer to require an employee as a condition of employment to violate or forego a “sincerely held practice of his or her religion including, but not limited to, the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion” unless after engaging in the interactive process with the employee, the employer can demonstrate that it cannot accommodate the employee without causing the employer an undue hardship.  The Religious Garb Law also clarifies that employers may have dress codes or grooming policies for the purposes of maintaining workplace safety or food sanitation.

It is recommended that all Illinois employers review dress codes and grooming policies to make sure they comply with the amended law.

Houston manufacturing facility Learns a $150K Lesson about Religious Discrimination and Retaliation

U.S. Steel Tubular Products, Inc., a subsidiary of United States Steel Corporation, has agreed to pay $150,000 to settle a religious discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  In this lawsuit, the EEOC claimed that the company engaged in religious discrimination during its pre-employment drug screening process.

Specifically, according to the EEOC, the company had hired Stephen Fasuyi a member of the Nazirite sect of the Hebrew Israelite faith, as a utility technician. The job offer was contingent upon Fasuyi passing a pre-employment drug test.  The test used by the company was a hair follicle drug test, which requires cutting hair from the subject’s scalp, which went against Fasuyi’s sincerely held religious beliefs (the Old Testament forbids him from cutting hair from his scalp).  In accordance with this belief, Fasuyi refused to allow the drug testing company to cut hair from his scalp and, instead, offered alternatives — like pulling hair from his beard.  The company refused to entertain Fasuyi’s proposed alternatives, sent him home and, later, revoked the offer of employment.

In its charge, the EEOC maintained that  Fasuyi’s religious beliefs should have been accommodated during the pre-employment testing.

This settlement serves as a reminder to all employers that they are required to consider providing religious accommodations to job applicants when such accommodations are requested.

Remember Employers — Religious Accommodation Is Not Optional

The EEOC recently filed a lawsuit against a South Carolina trucking company for religious discrimination.

The Claim

The company refused to grant religious accommodation to a Hebrew Pentecostal truck driver who told them that he could not work on the Sabbath for religious reasons. Rather than engage in the interactive process and discuss potential accommodations, the company fired the employee.

Why Should I Care?

Within the past year, the EEOC has pursued several religious discrimination claims relating to an employer’s failure to accommodate an employee’s religious belief and many of those claims involved an employee requesting an accommodation to not work on the Sabbath.

In light of this trend, employers need to remember that an employee’s religious practices and beliefs must be accommodated by an employer — unless it creates an undue burden for the company. In addition, employers are required to engage in the interactive process with the employee to determine the type of accommodation that can be provided. In short, as noted by the EEOC, “employers have an obligation to endeavor to fairly balance an employee’s right to practice his or her religion and the operation of the company.”

The EEOC has developed information to educate employers, employees, and the public about religious discrimination, including Questions and Answers: Religious Discrimination in the Workplace and Best Practices for Eradicating Religious Discrimination in the Workplace. Last December, EEOC released documents for employees and employers that focused on discrimination against people who are or are perceived to be Muslim or Middle Eastern, and an accompanying background summary.

It is recommended that employers review these materials and provide training to their management staff regarding providing religious accommodation.

EEOC reminds employer that an employee’s request for religious accommodation is protected activity under Title VII

The EEOC has long-taken the position that an employee’s request for religious accommodation is protected activity and, under Title VII, employees are protected against retaliation for making such a request. This position is reflected in both the EEOC’s Enforcement Guidance on Retaliation and in its Questions and Answers: Religious Discrimination in the Workplace.

Despite this guidance, in a recent case (EEOC v. North Memorial Health Care), an employer has taken the position that an employee’s request for a religious accommodation is not protected from retaliation under Title VII because it does not fall under the two categories of Title VII protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.

While this employer’s argument has not yet been ruled on by the Court (the Court is currently considering the employer’s motion for summary judgment relating to this point), there are lessons that employers can learn from this case – the most important being that an employee’s request for religious accommodation may be construed as protected activity under Title VII.

As such, it is recommended that employers follow these best practices when responding to an employee’s request for religious accommodation:

  • Establish policies and processes for handling requests for religious accommodation and provide training to managers and HR regarding these policies and processes;
  • Review any request for religious accommodation on a case-by-case basis;
  • Ensure that any adverse employment actions taken against employees are taken for legitimate, nondiscriminatory reasons.

2016 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2016 fiscal year.  According to this report, the total number of EEOC charges received in 2015 increased from 89,385 received in 2015 to 91,503 received in 2016.

In addition, according to the report, in 2016, the EEOC resolved 97,443 charges and secured more than $482 million for victims of discrimination in private, federal and state and local government workplaces.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation
42,018 45.9%
Race  32,309 35.3%
Disability 28,073 30.7%
Sex/Gender 26,934 29.4%
Age 20,857 22.8%
National Origin 9,840 10.8%
Religion 3,825 4.2%
Color 3,102 3.4%
Equal Pay Act 1,075 1.2%
Genetic Information Non-Discrimination Act 238 0.3%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 9,308 4,633 3,244 2,775 2,765 2,000
Florida 7,610 3,530 2,285 2,221 2,332 1,661
California 5,870 2,937 1,905 1,912 1,560 1,517
Georgia 5,273 2,577 2,165 1,462 1,684 1,028
Illinois 5,072 2,327 2,255 1,466 1,325 1,633
Pennsylvania 4,564 1,964 1,228 1,646 1,255 1,198
North Carolina 4,372 2,077 1,705 1,384 1,265 885
New York 3,740 1,604 1,084 1,061 1,202 865
Alabama 3,371 1,211 1,865 647 934 503
Virginia 2,945 1,242 1,069 921 881 583

The full state breakdown of claims is available here.

Is a Mandatory Flu Shot Policy A Cost Effective Solution for Employers?

Not according to a recent $300,000 settlement with the EEOC.

In September of 2016, the EEOC filed a lawsuit filed Saint Vincent Health Center (located in Pennsylvania) because it had implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season in lieu of receiving the vaccination. Employees who refused the vaccine but were not granted an exemption by the Health Center were fired.

According to the EEOC’s lawsuit, six hospital employees requested religious exemptions from the flu vaccination requirement, but those requests were denied by the Health Center.  The six employees were later terminated because they refused to be vaccinated against the flu.  During the same time period, fourteen other employees were granted a religious exemption, which excused them from getting the vaccine.

The EEOC alleged that the Health Center’s policy was implemented in a discriminatory manner that specifically discriminated against the six terminated employees because of their religious beliefs.

What does this mean for employers?

Employers need to proceed with caution when trying to implement a mandatory flu vaccination policy and must be prepared to accommodate those employees who request to be excused from the vaccine requirement for a religious reason.  As explained by the EEOC’s Philadelphia District regional attorney, Debra M. Lawrence:

While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion. In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.