The Employer Handbook Blog

Bad Van Halen pun aside, let's play some Skynyrd. Even Waldo agrees.

So, there was this woman in Louisiana who took a teaching position at an elementary school. You know the kind; one that operates on weekdays. And, around her start date, she asked the administration for Tuesdays off to pray and observe her Sabbath. And the administration was all like, no.

So, a month later, the teacher filed a Charge of Discrimination with the EEOC, claiming religious discrimination for failure to accommodate.

Raise your hand if you think the teacher wins this lawsuit. 

Now, those of you with your hands up, ball that hand into a fist and punch yourself in the face. And, keep punching yourself, as I remind you that an employer does not need to accommodate an employee's religious beliefs if doing so would create undue hardship for the employer. In this context, undue hardship is anything "more than a de minimis cost" to the employer's business. For this reason, an Louisiana federal court in Slocum v. Devezin dismissed the teacher's religious discrimination claims because full-time teacher, last I checked, is a full-time position.

For more on addressing religious accommodation requests, check out this post.

Robert Mariotti was the vice-president and secretary of the company his father founded. Not only was he a corporate officer, but Mariotti also served as a member of the board of directors, and was a shareholder who could only be fired for cause.

In 1995, Mariotti had a spiritual awakening, which he claims resulted in a resulted in "a systematic pattern of antagonism" toward him in the form of "negative, hostile and/or humiliating statements" about him and his religious affiliation. Mariotti claimed that this behavior ramped up for over a decade and, ultimately, resulted in his termination. Thereafter, he sued his former employer for religious discrimination. The company moved to dismiss the claim on the basis that a shareholder-director-officer is not an "employee" under Title VII of the Civil Rights Act of 1964 and, thus, has no standing to assert a claim for religious discrimination.

What happened you say? Well, even if you read the lede, click through for full analysis...

Continue reading "Third Circuit says VIPs cannot sue for Title VII discrimination" »

An employer must accommodate the sincerely-held religious beliefs of its employees unless the employer demonstrates that doing so would cause undue hardship for the business.

Undue hardship?!? What the heck is that? And how can you make sure that your managers are prepared to address -- let alone spot -- these issues when they arise.

Whoa, whoa, whoa. Calm down. I've got your back, after the jump...

Continue reading "OMG! Must we grant our employee's religious-accommodation request?" »

In anticipation of the current flu season, you decided to mandate that all employees get immunized. The problem is that one of your employees, a vegan, who won't ingest any animal or animal by-products -- especially not the microwaveable scrapple-wrapped tripe pops I keep in the lunchroom freezer -- refuses to get a flu shot because it's against her religious and philosophical beliefs.

What's her religion, you ask? Why veganism, of course.

WTH?!? Surely, you have no obligation to accommodate this "religion." In fact, you suddenly have the urge to brush her teeth with my frozen pops.

*** Ducks cauliflower ***

Well, guess what, carnivore? If you fire the employee for not getting the shot, you may have a religious-discrimination claim on your hands. 

So says an Ohio federal court in this recent decision. Indeed, an employer must accommodate an employee's sincerely-held religious belief, unless doing so would pose an undue hardship to the employer. When considering whether veganism qualifies, the Ohio court emphasized that "whether or not a practice or belief is religious is not an issue. . .religious practices . . . include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of religious views." Plus, it didn't hurt that the plaintiff quoted the scripture when requesting a flu-shot accommodation from her employer.

*** And I plan to quote Biggie Smalls at compensation time ***

Ultimately, the court accepted that an employee may subscribe to veganism with a sincerity equating that of traditional religious views. Consequently, in certain curcumstances, a vegan can avoid an otherwise mandated flu shot, unless it would post an undue hardship to the employee. But I'm thinking a surgical mask could solve that problem.

Now, if you'll excuse me, somebody has a craving for thawing pops.

Me, that somebody is me.

UPDATE: If you're a California vegan, you're out of luck. As two readers noted on LinkedIn, in this case, a California Court of Appeal -- yes California?!? -- refused to recognize Veganism as a religion requiring accommodation under anti-discrimination laws. For more on the CA decision, go here and here.

Yep, someone -- represented by a licensed, practicing attorney -- brought this lawsuit.

***Shakes head // Smiles // Kisses statuette of Blogga-Blogga, the goddess of HR blogging fodder. Love you, boo.***

Bagel party -- whoop! whoop! -- after the jump...

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Continue reading "Christian employee + Ramadan bagel party = hostile work environment?" »

They can't all begin with a priest, minister and a rabbi walking into a bar. Then again, it's "Religious Accommodation Tuesday" here at The Employer Handbook. So, after the jump, we'll discuss the test to determine whether an employee may lawfully don religious items at work and find out whether the hospital worker in this case has a potential religious discrimination claim (Hint: he does).

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Continue reading ""An employee walks into a hospital wearing a Jesus lanyard..."" »

I'm a firm believer that discussing religion (or politics) at work is a recipe for disaster. On this blog; however, if it's employment-related, then that's how we roll...

And, after the jump, we roll into Oklahoma and discuss whether it's ok for a lighting company to require that it's employees be born-again Christians. (Hint: It's not ok).

(If you'd rather read about the Oklahoma City Thunder and the NBA Finals, I understand).

Continue reading "HELP WANTED: Born-again Christians need only apply" »

Yesterday, the US Equal Employment Opportunity Commission issued updated Enforcement Guidance on employer use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. (Title VII is the federal statute that prohibits discrimination in the workplace based on race, color, religion, sex and national origin). You can read a full press release on the updated Enforcement Guidance here.

The press release includes a link to questions and answers about the EEOC's Enforcement Guidance. However, I will summarize the most important points for employers after the jump...

Continue reading "5 takeaways from the EEOC's new guidance on use of criminal records" »

Do you know what to do if an employee comes into your office asking for a shift change or some other workplace accommodation because of a sincerely-held religious belief?

A short lesson from a recent federal-court decision and a few tips after the jump...

Continue reading "An HR primer on handling religious-accommodation requests" »

The Americans with Disabilities Act explicitly forbids discrimination against those who are actually disabled or "regarded as" disabled. As a NJ court once recognized, "Distinguishing between actual handicaps and perceived handicaps makes no sense." Indeed, "prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be . . . non-existent."

Does the same maxim apply to workplace discrimination -- a barrage of anti-semitic comments -- directed at employee whom the harassers believe is Jewish, but really isn't?

The answer from a NJ court after the jump...

Continue reading "Court holds mistaken discrimination is unmistakably illegal" »

Over the weekend, I read this story by Laura Hibbard at the Huffington Post about a phony job flyer handed out by two men in red blazers posing as Chick-Fil-A employees [link to video] on the campus of New York University. The phony flyer states:

Remember Chick-Fil-A is a Christian company. We strive to have our values reflected in our employees. Please be prepared to discuss your religion, family history, personal relationships etc. upon interviewing. Chick-Fil-A reserves the right to question, in detail, your sexual relationship history. The Bible and Chick-Fil-A, define a traditional relationship as consisting of a man and woman. Anyone living a life of sin need not apply. The Chick-Fil-A Foundation. God, Family, Tradition.

The flyer and video have since gone viral. However, Chick-Fil-A, which has a stated corporate purpose to "glorify God by being a faithful steward of all that is entrusted to us," responded by posting on the wall of its Facebook Fan page (incidentally, 4,960,921 people "like" Chick-fil-A) that the flyer and video were BS. Given the company's religious leanings, the comments beneath Chick-Fil-A's status update are rather polarizing.

But since this an employment-law blog, there is an employment-law point to be made. Just because you technically can ask certain questions during a job interview, doesn't mean you should. Indeed, you may want to consider steering clear of these other 29.

But feel free to watch the vids below...

When an employee sues his former employer alleging a religiously hostile work environment, he must prove, among other things, that he was subjected to harassment based on his religion and that the harassment was either severe or pervasive.

What do you think? Is the email below from a company General Manager severe enough for ya?

Can I just say something I shouldn't to you here -- he is SUCH A JEW! In a BAD way. He's what gives Jews a bad name. He's smarter. He's better. He's owed. He will do anything to keep from opening his wallet -- right down to not eating!!!! And I am DEAD serious here!!! That's why he expenses every single thing he can because he won't pay anything! I have not seen him bring one single thing into this office in all the time he's been here -- period. (that he paid for) IF he does bring something in he expenses it. . .I COULDN'T say to him what I just did to you -- that HE is what gives Jews a bad name!!!

Let's see what a NJ court said, after the jump...

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Continue reading "Can one anti-Semitic email make a tenable employee bias claim?" »

Note: The original working title for this post was "Yo! A-Yo! Federal courts in Philly and NYC get all catty and stuff". I mention this not because it's a recycled New Yorker headline, but because it puts into context the gratuitous shots I take at NY sports teams sprinkled into this post.

Back in March of this year, the United States Supreme Court in Staub v. Proctor Hospital recognized that an employee may have a tenable claim for discrimination under USERRA even if the person who fired him did not discriminate. That is, if a supervisor's bias motivates a firing -- even if the firing is carried out by someone else who is both squeaky-clean and higher up in the food chain -- then the firing is discriminatory. This is known as the "cat's paw" theory.

     Same goes for the MetsSince March, other courts have weighed in. As you know from reading this blog, on June, the Tenth Circuit held that the Staub decision applies to claims of age bias. 

And, this month, we get cat's paw decisions from the United States District Court for the Eastern District of New York and the Third Circuit Court of Appeals. One of 'em is good for employers. The other, not so much. More on these decisions and what they will mean for local businesses after the jump...

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Continue reading "Third Circuit delivers a cat's paw gouging to employers" »

Religious discrimination claims are skyrocketing. A supervisor at a local shoe store didn't get the memo. Guess how that turned for him...

Continue reading "Fired employee gets re-hired after raising discrimination claims" »

Your employee wears a head-covering. The employee's head-covering is part of her religious practice.

You're not one to interfere with an employee's religious expressions, but you're concerned that this head-covering creates a safety risk for both the employee and others. And maybe you run a prison and the head-covering could be used to smuggle in contraband.

After jump, I have some practice tips for you.

Continue reading "In PA, NJ, and DE, when does religious expression take a backseat to workplace safety?" »