EEOC Compliance Manual on Religious Discrimination

On July 22, 2008, the EEOC issued a press release proclaiming that it has issued “COMPLIANCE ASSISTANCE ON RELIGIOUS DISCRIMINATION” (Why the EEOC must use all caps in its press releases is a mystery.)

I’ve discussed religious employment discrimination issues in a prior posting. There, I reported on a North Carolina federal appeals court decision where the EEOC wanted the employer to waive the employer’s neutrally and consistently applied attendance policy for an employee whose religious prohibited working on a Saturday. The EEOC Compliance Manual leaves no doubt that it continues to disagree with the court’s decision. I won’t repeat that discussion here.

Because of a recent lawsuit (in which I have no involvement) in the news, I was curious to see how the manual addressed the religious clothing issues. The manual is an utter disaster. It provides neither employees nor employers with coherent guidance on when an employer must permit, despite a dress code or uniform requirement, religious dress. The EEOC’s ambiguous statements are as follows:

“religious discrimination may be found where an employer fails to accommodate the employee’s religious dress or grooming practices” – no doubt true, but the statement is far too vague to be of any help.

“Some courts have concluded that it would pose an undue hardship if an employer was required to accommodate a religious dress or grooming practice that conflicts with the public image the employer wishes to convey to customers.” So what is the EEOC’s position? All it then says is: “While there may be circumstances in which allowing a particular exception to an employer’s dress and grooming policy would pose an undue hardship, an employer’s reliance on the broad rubric of ‘image’ to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called ‘customer preference’) in violation of Title VII.” There is no explanation whatsoever as to how an employer should decide whether their public image permits them to assert the accommodation would be an “undue hardship.” The example the EEOC gives (customers might fear a worker is a terrorist for wearing a hijab (head scarf)) is so obvious it is laughable.

The final sentence of this section: “There may be limited situations in which the need for uniformity of appearance is so important that modifying the dress code would pose an undue hardship. However, even in these situations, a case-by-case determination is advisable.”

We are a diverse country and, compared to most (even some “western” countries), remarkably tolerant of each other’s religious views (not that further improvement wouldn’t be welcome). That diversity and tolerance carries with a price. For employers, that price includes making unpopular and/or difficult decisions. More so than with any other protected class, religious employment discrimination issues force someone to compromise a principle. Given what is at stake, employers and employees deserved to receive much clearer guidance on this point from the EEOC.

Train your interviewers about disablity inquiries

Today the Sixth Circuit Court of Appeals (which decides federal law issues for several states, including Tennessee) issued a somewhat interesting disability discrimination decision.  The decision doesn’t cut new legal ground but serves as a reminder that employers should make sure interviewers are properly trained about asking disability related questions. 

The lawsuit was brought anonymously so the decision is called Doe v. Salvation Army.   The plaintiff was being interviewed for a truck driver position.  During the interview, he said he could not work on Fridays because he had to see his doctor and pickup his medicine.  The interviewer asked “what kind of medicine” and was told “psychotropic medicine.”  The interview then ended (abruptly, the decision implies) with the interviewer saying their insurance wouldn’t cover the applicant (exactly what was said was disputed).  The applicant was not hired and brought suit claiming disability discrimination under the Rehabilitation Act (the federal grantor equivalent of the Americans with DIsabilities Act).

After determining the applicant had a “disability” within the meaning of the statute, the court held the questions during the interview were improper.  Sure, the Salvation Army had a legitimate interest in having truck drivers be safe, but during a job interview, asking about the types of medications the applicant was taking was not the way to address that concern.  That question alone led the court to require a jury trial because it showed the interviewer had a preconceived notion about people who take psychotropic drugs and wasn’t going to take a chance in hiring one of them.  The court was not discounting the employer’s legitimate need for safe drivers nor was the court saying the employer had to hire someone who couldn’t work on Fridays (though that might have been required as a reasonable accommodation).

The ADA (and related statutes) give employers a several opportunities to determine whether an applicant or employee can safely perform a job.  In this instance, the better course would have been to not ask at all about the medication but instead say, is this medication something would interfere with your ability to drive a truck.  Any employer who employees drivers on the jbo has a legitimate reason in seeing that its drivers are safe operators.  Employers can, if uniformly done, make conditional job offers and then conduct medical exams to see whether the applicant has any condition that would be reasonably likely to prevent the safe operation of a vehicle.  Remember that there are limits on what can be asked (or used) during these medical examinations and on how the employer uses the information.

Two lessons: before conducting interviews, train your interviewers on the “do’s and don’ts”, give them refreshers if they don’t do interviews that often, and keep a record of that training.

What really tripped up this employer, in the court’s mind, was the stereotyped view the interviewer held about someone who takes psychotropic drugs.  It is far, far better for an employer to conduct a valid post-offer medical exam and base a decision on whether applicant’s (or employee’s) actual traits/limitations preclude the employee from doing the job.  Several cases (here is one) have essentially ruled that as long as the medical evaluation and the employer’s reliance on it is not unfrounded, the courts will not find the employer had a stereotyped view of the applicant’s (or employee’s) disabilities.

Religion in the Workplace

Two court decisions this spring put some perspective on the competing issues facing employers in accommodating the religous views held by employees.  The first decision, EEOC v. Firestone Fibers, 515 F.3d 307 (4th Cir. 2008), arose in North Carolina in a Firestone tire plant.  It is also of interest because the EEOC has brought a number of religious discrimination lawsuits and most employers don’t encounter those kind of issues too often.

 

Employers generally know they must offer a reasonable accommodation to employees who have sincerely held religious views.  Tension often arises at the intersection of the employer’s need for employees to be at work and sincerely held religious views against working on the sabbath when it is a Saturday. 

 

In the North Carolina case, the EEOC took the position that an employer provides a reasonable accommodation only when it “eliminate[s] the conflict between the religious practice and the work requirement.”  This would require “an employer, absent undue hardship, to totally accommodate an employee’s religious observances.”   In practical terms, the EEOC wanted the employer to let the employee to take more unpaid leave time than permitted by the company’s attendance policy. The court of appeals rejected the EEOC’s argument, holding that a reasonable accommodation does not mean a total accommodation with the only check being the undue hardship on the employer or co-workers.

 

What swayed the court of appeals was that the employer had tried several approaches to accommodating the employee.  Among other things, the employer was “flexible” in interpreting the bargaining agreement leave rules and tried to schedule the employee on days other than his sabbath.  Ultimately, the paid and unpaid leave ran out and employer refused to adopt what the court concluded would have amounted to a permanant exception to its attendance policy.

 

On the other side of the issue is a Tennessee case from Athens.  The employer, Texas Hydraulics, also had an employee who objected to work on his sabbath.  When business picked up, the employer mandated Saturday overtime work.  The employer told the employee he would be excused from working on a Saturday if he found someone to work for him.  The employee racked up points because he refused to work on Saturdays and was ultimately terminated. 

 

The EEOC sued (EEOC v. Texas Hydraulics, 103 Fair Empl. Prac. Cas. (BNA) 299 (E.D. Tenn. 2008)) only the result here was different than in the North Carolina case because Texas Hydraulics, the court concluded, had not tried to accommodate the religious views.   All Texas Hydraulics had done, the judge said, was assume any accommodation would be a hardship without giving an accommodation a chance to work.  It was not enough to tell the employee he could find a substitute and be excused.  Instead, the court suggested the employer could have (1) avoided liability by establishing a voluntary shift exchange, (2) compiled a list of employees that were qualified to substitute for the employee or (3) post a notice asking if any employee would be willing to substitute for the employee. 

 

These decisions demonstrate some of the efforts employers should make in trying to accommodate the employee’s sincerely held religious views.  Texas Hydraulics shows the employer must take charge of the situation before jumping to the conclusion that the accommodation is too disruptive.  Once the employer takes charge, however, Firestone Fibers shows there are reasonable limits on how far it must go.  How much the employer must take charge and when the limits will be exhausted depends, of course, on the facts unique to the workplace in question. 

FMLA Requests in the 21st Century

At the end of April, a federal court of appeals in Chicago, issued an interesting FMLA decision.  The employer used an automatic processing unit to handle the FMLA paperwork when an employee requested medical leave. The employer used FMLA forms with bar codes unique to each employee – the bar codes are automatically read by the processing unit’s fax machine and then sorted into the appropriate file. The employee (whose spouse also worked for the employer) claimed he sent in an FMLA leave request using his wife’s form (changing her name to his), that the processing unit lost it (in cyberspace), and therefore the employer imposed an unreasonable burden on his exercise of FMLA rights.

To this, the court replied: “an employee should know better than to submit a request for leave on another employee’s form, even if the other employee is the person’s spouse.” In the end, however, the court said the employer was not at fault as the request never could be found even in the spouse’s FMLA file.

Further, the employer was not unreasonable to the point of interfering with FMLA rights in refusing to give yet another extension of time for the employee to submit the form. This is the real value of the decision as it construes that part of the FMLA regulations which require extensions when “it is not practicable” to timely submit the FMLA request. 29 C.F.R. § 825.305(b). Refusals to grant repeated extensions are not an FMLA violation.

Usually, patience is a virute in dealing with FMLA issues.  Forgiveness by the employer is also sometimes legally mandated.  This case shows, however, that if employers are reasonable they can (and should) draw the line at giving repeated extensions to return the FMLA request forms.

While the decision isn’t binding authority for Tennessee employer it addresses a point they can, until a contrary decision is issued, rely upon.