COVER ARTICLE

Religion at work
Balancing the rights of employees and employers
By J. Gregory Grisham

Since 9/11, the number of religious discrimination charges filed with the Equal Employment Opportunity Commission (EEOC) has increased. There are several possible reasons for the increase in religious based charges, including the EEOC’s widely publicized commitment to prevent “backlash” discrimination against Muslims, which, in turn, increased public awareness of religious discrimination.

Other possible reasons include the continued growth of evangelical and other proselytizing religious groups whose members actively share their faith and religious views in the increasingly diverse American workplace. Perhaps most significantly, as employers continue to progressively develop and implement anti-discrimination/harassment and diversity policies, in some instances, extending protection to sexual orientation, conflicts arise as an employee’s interest in religious expression competes with another co-worker’s interests or with the legitimate goals and policies of the employer.

Based on changing workplace demographics and the factors mentioned above, it is likely that this is just the beginning of a larger trend.

Title VII
1. Religion defined
Title VII of the Civil Rights Act of 1964 (Title VII) defines religion to include “all aspects of religious observance and practice, as well as belief.”[1] The Supreme Court, in United States v. Seeger, defined religion as a “sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God.”[2] Seeger was followed by Welsh v. United States, which made the central consideration in determining the religiosity of the registrant’s beliefs, whether the beliefs play the role of a religion and function as a religion in the registrant’s life.[3] The court stated that “the task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are in his own scheme of things, religious.”[4] Incidentally, the freedom not to believe in a deity is also a protected religious belief under Title VII.

Only a few courts have addressed the issue of sincerity, most finding that the plaintiff made the necessary showing of sincerity for their belief. For example, in Shpargel v. Stage & Co., the Michigan court held that the plaintiff’s past attendance at Yom Kippur services and desire to attend them in the future established sincerity.[5] Citing Shpargel, the Sixth Circuit in EEOC v. Allendale Nursing Centre explained that in the context of religious discrimination claims, courts have been reluctant to scrutinize an individual’s religious beliefs and have not required that the beliefs in question be based upon the organized or recognized teachings of a particular sect.[6]

On the other hand, some courts, like the First Circuit, have required the employee to show that both his religious belief and his practice are religious and sincerely held. For example, in EEOC v. Union Independiente de law Autoridad, an employee, who claimed to be a Seventh Day Adventist, argued that his religion prohibited union membership. The First Circuit considered evidence of the employee’s conduct that was contrary to the tenets of his professed belief.[7] Notably, the employee had lied on an employment application, was divorced, taken an oath before a notary on becoming a public employee, and worked five days a week instead of the six required by his faith.[8]

Courts have generally rejected religious discrimination claims related to cultural, social and political views, as well as claims related to voluntary social and family obligations. For example, in Storey v. Burns Int’l. Sec. Servs., the Third Circuit held that an employee had not shown that his display of a Confederate flag at work constituted a sincerely held religious belief. The court found that the employee’s personal desire to share his passion for his heritage did not establish a religiously mandated observance and therefore did not rise to the level of protected activity.[9]

2. Hostile work environment — religious harassment
While most harassment cases under Title VII involve claims of sexual harassment, religious-based harassment that creates a hostile work environment or results in a tangible job detriment can be the basis for a Title VII violation.[10] Generally, to establish a claim of hostile work environment harassment, the plaintiff must establish that:

1. he belongs to a protected group;
2. he has been subject to unwelcome harassment;
3. the harassment was based on a protected characteristic of the employee;
4. the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and
5. the employer is responsible for such environment under either a theory of vicarious or direct liability.”[11]

The court will determine whether a work environment is hostile and abusive based upon the totality of the circumstances. The totality of the circumstances includes the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is relevant to determining whether the plaintiff actually found the environment abusive. While psychological harm, like any other relevant factor, may be taken into account, no single factor is required.[12]

Recently, in Nichols v. Snow, a case out of the Middle District of Tennessee, the District court denied the employer’s motion for summary judgment where the plaintiff asserted that he was subjected to a hostile work environment because he did not share his supervisor’s religious beliefs.[13] The court found that a hostile work environment existed based upon the supervisor’s disapproval of the plaintiff’s lifestyle, as evidenced by the frequent chastisement of the plaintiff for not going to church, and for not making religion a priority in his life.[14]

Title VII does not permit an employer to manipulate job requirements for the purpose of putting an employee to the “cruel choice” between religion and employment.[15] In Abramson, the plaintiff, who was a tenure track college professor, told her supervisor that her Jewish faith prevented her from working on Jewish holidays and her religious practice was accommodated until there was a change in the administration. Thereafter, the new dean and department chair allegedly berated her for mentioning religious holidays at faculty meetings; started scheduling events and meetings on Saturdays and on Jewish holidays; and recommended her retention with reservation after giving her poor performance evaluations. After she complained to the college president, the dean and department chair rescheduled faculty meetings from Tuesday afternoons to Friday afternoons and then opposed her retention at her next performance evaluation. In reviewing the facts, the Third Circuit found that the overall facts were sufficiently pervasive to support a claim of hostile environment harassment based on the plaintiff’s religious practices.

Not all conduct that an employee finds offensive in the workplace will provide the basis for a religious harassment claim. For example, in Ploscowe v. Kadant, a Jewish employee, discharged as part of a reduction in force, could not state a claim for religious discrimination-harassment.[16] The Sixth Circuit found that even assuming that derogatory comments and jokes were made in the workplace; they were made by co-workers or managers with no supervisory authority over plaintiff. The court also found that a co-worker’s passing out of crosses in the workplace and the presence of a Nazi flag in a supervisor’s office were not evidence of discrimination against the plaintiff. The Sixth Circuit reached the same conclusion in Lundy v. GMC, ruling that symbols, which the plaintiff regarded as sacrilegious, such as “666” and “Satan Paul” written on a posted picture were not sufficiently severe or pervasive to give rise to a Title VII claim, even if the symbols were meant to mock the plaintiff’s religion.[17]

Also, in Bourini v. Bridgestone-Firestone North American Tire LLC, the Sixth Circuit affirmed the lower court’s grant of summary judgment in favor of the employer, where the plaintiff, a Muslim immigrant from Jordan, alleged that he was subjected to harassment after the 9/11 attacks.[18] Plaintiff claimed that co-workers once attempted to back over him with a forklift, while other co-workers made disparaging remarks about his national origin and religion, both verbally and in written graffiti, in addition to putting Christian proselytizing material on his work station. First, the court found that the incidents were relatively infrequent and isolated and did not change the terms and conditions of his employment. Second, the court found that while the incidents were “offensive and highly inappropriate,” they collectively did not rise to the “threatening” or “humiliating” level of severe conduct required to create “an objectively hostile or abusive work environment” as required under Title VII.

3. Religious discrimination
In the absence of direct evidence of discrimination, Title VII religious discrimination claims are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. Under this approach, a plaintiff must first establish a prima facie case of discrimination. To establish a prima facie case of religious discrimination, a plaintiff must show (1) he was a member of a protected class; (2) he was subject to an adverse employment action; (3) he was qualified for the job; and (4) for the same or similar conduct, he was treated differently from similarly situated employees outside the protective class.

To make a comparison of the plaintiff’s treatment to other employees, the plaintiff must show that the “comparables” are similarly situated.[19] However, in examining whether a plaintiff was treated differently than similarly situated employees outside of his protected class, courts do not require exact correlation, but relevant similarity.

If a plaintiff meets this burden, the burden then shifts to the employer to produce a legitimate, non-discriminatory reason for the adverse employment action. If the employer meets this burden, the burden then shifts back to the plaintiff to show that the reasons offered by the defendant are a pretext for discrimination. To prove that the reasons an employer offered for an adverse employment action were a pretext for discrimination, a plaintiff may show either:

1. that the employer’s reasons had no basis in fact; or
2. that the employer’s proffered reason did not actually motivate the decision; or
3. that the employer’s reasons were insufficient to motivate the decision.

Recently, the Sixth Circuit granted summary judgment in favor of the employer, in Derusha v. Detroit Jewish News & Style Magazine and Horowitz, where the employee, a Jehovah’s Witness, claimed that he was fired based on his religion.[20] The court determined that the plaintiff’s claim failed because he did not present any evidence that similarly situated employees outside the protected class were treated differently by the employer because of their religion, nor did he present evidence that the employer’s proffered reasons for firing him were pretextual. The plaintiff further failed to establish evidence of a causal connection between his firing and his religion.

In contrast, the Eighth Circuit held in Altman v. Minnesota Dep’t of Corr. that public employees who silently read Bibles during a “gay tolerance seminar” were entitled to a trial where there was evidence that the employer had never disciplined employees for prior inattentiveness during seminars.[21]

An employee’s personal suspicions and subjective beliefs relating to his employer’s motives are insufficient to rebut an employer’s nondiscriminatory reason for an adverse employment action.[22] In Sprague v. Adventures Inc., the plaintiff alleged that his supervisor repeatedly prayed during office meetings and criticized the plaintiff for attending temple service with a Jewish co-worker.[23] After he complained of his supervisor’s conduct, the plaintiff was transferred to a new store where it was widely known in the company that it was impossible to earn a living on commissions. The employer claimed that it transferred the plaintiff because of his poor work performance. The Tenth Circuit held that a plaintiff could not show discrimination or retaliatory transfer based on his religion solely by relying on the close temporal proximity between a religious conflict with a supervisor and his transfer to a less productive store.

It is important to note that many religious organizations are granted an exemption from certain provisions of Title VII.[24] Employees of religious organizations, associations, and education institutions are exempted from Title VII’s hiring and employment protections when those employees are involved in the organization’s religious work. While this exemption affords religious employers a greater degree of flexibility in establishing hiring and firing criteria, a discussion of the religious employer exemption and the myriad of ways that it can affect the religious employer is beyond the scope of this article.

The employer’s duty to reasonably accommodate an employee’s religious beliefs
1. The accommodation requirement
In 1972, Congress amended Title VII and enacted § 701(j), which established an affirmative duty “to reasonably accommodate an employee’s or prospective employee’s religious observance or practice,” unless the accommodation caused an “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). The U.S. Supreme Court first addressed the issue of religious accommodation in Trans World Airlines Inc. v. Hardison, holding that the undue hardship standard is met where the employer shows that the accommodation would require more than a de minimis cost.[25]

In Hardison, the plaintiff converted to the Worldwide Church of God in the first year of his employment and informed his manager of his religious convictions. The parties agreed that the employee would not work Saturdays; however, this resolution conflicted with the union’s collective bargaining agreement, specifically, the seniority system. When the employer asked plaintiff to temporarily work Saturday shifts, he refused and was terminated. The Supreme Court reversed the Eighth Circuit and indicated that there are limits to the employer’s duty to accommodate. For example, the court stated that “(1) an employer does not have an obligation to impose an undesirable shift on other employees; (2) an employer does not have an obligation to agree to substitute or replace workers if the accommodation would require more than a “de minimis” cost; and (3) neither an employer nor a union is required to take steps inconsistent with a valid collective bargaining agreement.”

In 1980, the EEOC responded to the Hardison decision with revised guidelines on “Discrimination Because of Religion.” The EEOC stated that “due regard [will be] given to the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation” and that “administrative costs necessary for providing the accommodation will not constitute more than a de minimis cost.”[26] The EEOC also created a per se rule that an undue hardship could not be invoked based upon a “mere assumption” that other employees would require similar accommodations.[27]

Six years after the EEOC issued its revised guidelines, the Supreme Court again addressed the issue of religious accommodation in Ansonia Bd. Of Educ. v. Philbrook, where, like in Hardison, the employee’s membership in the Worldwide Church of God conflicted with a collective bargaining agreement.[28] The court concluded that any reasonable accommodation offered to the employee fulfilled the employer’s statutory obligation and that the employer is not required to choose the accommodation preferred by the employee if there is another reasonable accommodation that will eliminate the conflict. The employee has a duty to cooperate with the employer when the employer makes an accommodation proposal.

The duty to accommodate continues throughout the employment relationship. Reasonable religious accommodations include, but are not limited to, time and/or a place to pray, leave for religious observances, job reassignments and the ability to wear religious attire. Courts have indicated that the factual circumstances of each case will determine whether a particular religious accommodation is reasonable. The employer meets its burden to accommodate under Section 701(j) “when it demonstrates that it has offered a reasonable accommodation to the employee.”[29]

2. Undue hardship
Courts recently have addressed the conflict that arises between an employee’s religious views and his employer’s workplace diversity programs. In Peterson v. Hewlett-Packard Co., the plaintiff alleged that his former employer failed to accommodate his religion.[30] The conflict between the plaintiff and his employer arose when the company began displaying its workplace diversity campaign — which consisted of various posters depicting Hewlet-Packard employees above the caption “Black,” “Blonde,” “Old,” “Gay” or “Hispanic.”

The plaintiff, who described himself as a “devout Christian,” believed that homosexual activities violate the Bible and that he had a duty “to expose evil when confronted with sin.” In response to the company’s diversity campaign, the plaintiff posted biblical Scriptures on an overhead bin in his work cubicle. The typed scriptures were large enough to be visible to co-workers, customers, and others who passed through an adjacent corridor. In an attempt to resolve the conflict, the employer met with the plaintiff, but the plaintiff stated that he would remove the scriptural passages only if the employer removed the “Gay” posters. The employer declined the proposal and gave the plaintiff time off with pay to reconsider his position. When the plaintiff returned to work, he again posted the scriptural passages and refused to remove them and was terminated for insubordination.

The Ninth Circuit upheld the lower court’s ruling in favor of the employer, finding that neither of the plaintiff’s accommodation proposals was reasonable. First, the court stated that allowing both the posters and the Scriptures would have compelled the employer to permit an employee to demean and harass his co-workers. Second, plaintiff’s alternative accommodation, removing the posters, would have forced the company to exclude sexual orientation from its workplace diversity program. The court held that either choice would have created an undue hardship for the employer because it would have inhibited the company’s efforts to attract and retain a qualified, diverse workforce, which the company reasonably viewed as vital to its commercial success.

In contrast, in Buonanno v. AT&T Broadband LLC, the Colorado district court ordered AT&T Broadband Inc. to pay $150,000 in damages to a former employee for its failure to accommodate the employee’s religious beliefs.[31] In that case, the employee objected to the AT&T employee handbook, which required as part of its anti-discrimination policy that all employees affirmatively “value” the beliefs of his employer and fellow co-workers. The employee, a devout Christian, claimed that he could not agree to value beliefs that were contrary to the Bible without denying his faith, but explained to his supervisors that he would not discriminate against or harass any employee on any basis. Significantly, the employee sought clarification of the handbook language so that he might sign the handbook in good conscience. The employer did not provide clarification and the plaintiff was terminated for refusing to sign the handbook. The court noted that had AT&T gathered more information, it would have found that the employee’s beliefs did not actually conflict with their policy. The employer’s steadfast insistence on requiring the employee to sign the handbook without clarification of its requirements was not a reasonable effort to accommodate the employee’s beliefs.

3. Illustrative Saturday Sabbath cases
Courts that have considered accommodation claims involving Saturday Sabbath work conflicts have generally found violations of Title VII where the employer made little or no effort to accommodate the conflict or where the cost of accommodating the Saturday Sabbath is de minimis. The Sixth Circuit recently held in EEOC v. Robert Bosch Corp., that an employer failed to offer a reasonable accommodation by requiring the employee, a member of the Old Path Church of God, who observed the Sabbath from sundown on Friday to sundown on Saturday, and his union to find a replacement for the employee’s Sabbath work shift.[32]

The Eleventh Circuit has held that an employer provided reasonable accommodation to a Seventh Day Adventist by authorizing shift swaps, providing an employee-scheduling roster to identify candidates for swaps, and allowing the employee to advertise his need for swaps in roll calls and on bulletin boards. In Beadle v. Hillsborough County Sheriff’s Dept., the employee, a practicing Seventh Day Adventist, failed to mention that he could not work from sunset on Friday through sunset on Saturday, until after he had completed an 11-week training period.[33] When the employee received his initial work schedule, which was made pursuant to a neutral rotating shift- system, he informed his employer of his Sabbath observance. The court held that the employer provided an adequate accommodation and that the employee had a “duty to make a good faith attempt to accommodate his religious needs through means offered by the employer.”

4. Diversity groups
Allegations of religious discrimination can also occur when an employer denies a benefit or financial support to an employee group or association with a religious affiliation that is provided to other employee groups.

In Moranksi v. General Motors, the employer developed a network of employee groups known as the “Affinity Group program.” This program made GM resources available to recognized groups, but prohibited granting status to any group that promoted or that advocated a religious position.[34] Based on this policy, the employer refused to grant group status to the proposed Christian Employee Network. The Seventh Circuit affirmed the district court, holding that the employer’s denial of group status to the employee’s proposed group did not discriminate against him on the basis of his religion because the program treated all groups with religious positions equally. The court stated that the central question in all employment-discrimination cases is “whether the employer would have taken the same action had the employee been of a different [religion] and everything else had remained the same.”

5. More limits to accommodation
Courts continue to establish the parameters of reasonable accommodations for religious beliefs under Title VII. For instance, in Anderson v. U.S.F. Logistics (IMC) Inc., the employee, who was a Christian Methodist Episcopal, frequently used the phrase “Have a blessed day” to end her daily business interactions with co-workers and customers.[35] When an employee of one of the customers complained, the plaintiff was asked not to use the phrase with this customer any more. The employer allowed her to continue using the phrase with co-workers and other customers. The plaintiff asked the employer to identify the individual that objected so that she could avoid using the phrase with that individual. The employer did not identify the complaining individual, and again directed the plaintiff to discontinue using the phrase with all employees of the complaining customer. Subsequently, the plaintiff concluded an e-mail to that customer with the phrase in all capital letters, which resulted in a written reprimand. The Seventh Circuit affirmed the district court’s dismissal of this action, because the court agreed that the employer had reasonably accommodated her religious practice.

Other Circuit courts have defined the parameters of reasonable religious accommodation by indicating what an employer is not required to do. For example, in Pinsker v. Joint Dist. No. 28, a Jewish school teacher sued the school district because he believed the school’s leave policy discriminated against him and other Jewish teachers on the basis of their religion.[36] The plaintiff argued that the school year is arranged so that Christmas and, in most cases, Good Friday are not school days, thus, Christians do not have to use personal or unpaid leave in order to observe their religious holidays. The Tenth Circuit held that the school district could not be responsible for having a leave policy that would be broad enough to cover every employee’s religious need “perfectly.” The court noted that the school’s policy was not an unreasonable accommodation, even though it may require teachers to take occasional unpaid leave.

The Ninth Circuit has held that absent discrimination, an employer is not required to implement accommodations proposed by the employee where the employer’s proposal preserved the employee’s employment status and eliminated any religious conflict. For example, in American Postal Workers Union v. Postmaster General, two employees sued the Postal Service because their jobs as window clerks required the processing of draft registration forms, which they claimed was against their religious belief.[37] For a brief period, the Postal Service had allowed window clerks to refer the registrant to another window clerk, but later implemented a rule that required all window clerks to transfer to another position if they refused to process draft forms. The employees rejected this accommodation on the basis that any transfer would be a “less attractive” employment status. The court noted that the proposed accommodation eliminated the religious conflict, and stated that Title VII does not compel an employer to accept “any accommodation, short of undue hardship, proposed by an employee, regardless of whether the employee rejects an accommodation proposed by the employer solely on secular grounds.”

The Fifth Circuit has ruled that Title VII does not require an employer to accommodate an employee who wants to perform only those aspects of the position she finds acceptable to her religious beliefs, particularly where the disruption to the employer would result in more than a de minimis cost.[38] In Bruff v. Mississippi Health Services Inc., the plaintiff was hired as a counselor for the company’s Employee Assistance Program and was required to travel to various locations and provide counseling to employees of various businesses in the region. The plaintiff refused to counsel an employee about a homosexual relationship by claiming that it conflicted with the plaintiff’s religious beliefs, but agreed to counsel on other matters. The employer determined that it was not feasible to accommodate her request to not counsel homosexuals or individuals having sexual relationships outside of marriage, because it would create an undue hardship on the Medical Center. The Medical Center then offered to transfer the plaintiff to another position or department, but the plaintiff did not agree and was terminated.

Cases within the Sixth Circuit and other jurisdictions establish that an employer is not required to accommodate a religious concern when doing so would potentially create a safety risk to its employees or a legal risk for the employer. However, in Mohamed-Sheik v. Golden Foods/Golden Brands, LLC, the Sixth Circuit recently denied reconsideration of the lower court’s denial of the employer’s motion for summary judgment involving two female Muslim employees whose religion prohibited them from dressing like a man or wearing clothing that revealed the female shape.[39] Prior to 9/11, the plaintiffs were allowed to wear untucked extra-large shirts to hide their waistlines, however, after 9/11 the employer imposed a new rule that disallowed head scarves and required that the employees tuck in their shirts. When the employees advised that they could not do so without violating their religious beliefs, the employer told them that they must tuck in their shirts or leave. The court explained that the employer was not prohibited from reevaluating its policies to enforce stricter safety measures, but questioned whether allowing an accommodation to the tuck-in policy would present an undue hardship to Golden Brands where there was evidence that safety concerns were not the primary factor behind the enforcement of the policy.

In Clouthier v. Costco Wholesale Corp., the First Circuit rejected the failure to accommodate claim of an employee, who had requested that her employer waive a no-facial-jewelry policy based on her recent membership in the “Church of Body Modification.”[40] Although the employee had no facial jewelry when she was hired, the employer offered to allow the employee to cover the facial jewelry with a bandage at work or wear a clear retainer. The employee rejected the employer’s offer, demanding a blanket exception to the company policy. The First Circuit held that such an exception would constitute an undue hardship on the employer because reasonable grooming policies are a legitimate exercise of management discretion.

Likewise, in Brown v. F.L. Roberts & Co., a Massachusetts district court granted summary judgment in favor of the employer, where the employee, who in adherence to his Rastafarian beliefs did not shave or cut his hair, was transferred to another position after the employer implemented a new personal appearance policy that required all employees with customer contact to be clean shaven.[41] While the employee’s pay was not reduced upon transfer, he believed that the working conditions were worse and demanded that he maintain customer contact without having to shave. The court, citing Clouthier, held that granting an outright exemption from a neutral dress code “would be an undue hardship because it would adversely affect the employer’s public image.”

Emerging issues in accommodation
The recent case of Wisconsin pharmacist Neil T. Noesen illustrates that Title VII’s accommodation requirement does not offer protection against employee behaviors that unduly disrupt the workplace.[42] Noesen was employed by a medical staffing firm as a pharmacist in a Wal-Mart. Claiming that his religious convictions prohibited him from filling prescriptions for certain types of birth control, Noesen requested an accommodation. The employer complied and agreed upon an arrangement in which Noesen would direct customers seeking birth control to another pharmacist on staff and then attend to the needs of other customers. Noesen became unhappy with the accommodation and demanded that he be further accommodated by avoiding any situation in which he might interact with a customer requesting a prescription for birth control. This additional accommodation was deemed unreasonable by the employer.

Noesen became disgruntled at the refusal of his employer to agree to his additional accommodation request and became disruptive in the workplace. Noesen’s disruptive behavior culminated in an incident during which he was dismissed and forcibly removed from the Wal-Mart premises.

Noesen sued, claiming that his additional accommodation was required under Title VII. The District court for the Western District of Wisconsin disagreed with Noesen and found his behavior constituted appropriate grounds for dismissal and that his employer had met its duty to accommodate Noesen.

Avoiding religious discrimination/harassment claims
Like other employment claims, religion-based claims may be avoided if employers take reasonable measures to prohibit religious discrimination and harassment in the workplace. An employer’s Equal Employment Opportunity policy should include effective internal complaint procedures that specifically address, among other things, religious discrimination/harassment and should further advise managers, supervisors, and employees that religious discrimination/harassment will not be tolerated. Manager training should include instruction on appropriate investigations of any complaint relating to religious discrimination and new employee orientation. Advanced training should include a review of the employer’s complaint procedure and EEO policies and procedures.

An employer’s defense to religious discrimination/harassment claims often turns on the adequacy and consistent application of its anti-discrimination/harassment policies and its investigation of such claims. For this reason an employer should be advised to promptly investigate and correct any religious discrimination/harassment complaint, documenting each step of the process, including all interviews with the complainant, witnesses, and the alleged harasser. Corrective action includes appropriate discipline for the employee found to have engaged in the alleged conduct, as well as appropriate assurances, and restitution, if necessary, to the victimized employee (restoration of position, back pay, expungement of discipline, etc.) that the discrimination has been corrected.

Title VII requires reasonable accommodation where an employee’s religious beliefs/practices conflict with the employer’s policies unless the employer would suffer undue hardship. Courts will generally find a violation if the employer makes little or no effort to accommodate the employee or refuses to discuss the issue. Therefore, it is prudent to advise employers to consider the employee’s proposed accommodation and if unreasonable, offer the employee alternative accommodations that would resolve the conflict, instead of flatly rejecting the employee’s proposal. The accommodation cases envision an interactive process where both the employee and the employer attempt, in good faith, to resolve any conflict involving the employee’s religious beliefs.

While an employer’s first reaction may be to deny an accommodation because of fear that the accommodation will set a precedent or because of the possible cumulative effect of another employee wanting the same accommodation, this is not valid defense without evidence that accommodation will cause undue hardship to the employer.

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Notes

1. 42 U.S.C. § 2000e(j). The Tennessee Human Rights Act (THRA) also protects employees from discrimination based on their religious observance. While there are some distinct similarities between the THRA and Title VII, it is important to note that the THRA does not include a reasonable accommodation requirement for religion. See generally Tenn. Code Ann.§ 8-50-103.
2. 380 U.S. 163 (1965).
3. 398 U.S. 333 (1970).
4. Welsh, 398 U.S. at 340.
5. 914 F. Supp. 1468 (E.D. Mich. 1996).
6. 996 F. Supp. 712 (6th Cir. 1998).
7. 279 F.3d 49 (1st Cir. 2002).
8. Union Independiente de law Autoridad, 279 F.3d at 56-57.
9. Storey v. Burns Int’l. Sec. Servs., 390 F.3d 760 (3d Cir. 2004).
10. Venters v. City of Delphi, 123 F.3d 956, 974-77 (7th Cir. 1997).
11. Jones v. United Space Alliance LLC, No. 05-13001, 2006 U.S. App. LEXIS 2702 at 9-10 (11th Cir. Feb. 3, 2006).
12. Harris v. Forklift System Inc., 510 U.S. at 23.
13. No. 3:03-1341, 2006 U.S. Dist. LEXIS 4281 (Jan. 23, 2006).
14. Nichols, 2006 U.S. Dist. LEXIS at 41-47.
15. Abramson v. William Paterson College of New Jersey, 260 F.3d 265 (3rd Cir. 2001).
16. 121 Fed. Appx. 67 (6th Cir. 2005).
17. No. 03-3618, 2004 U.S. App. LEXIS 11253 (6th Cir. June 4, 2004).
18. No. 04-5441, 2005 U.S. App. LEXIS 5194 (6th Cir. Ct. App. March 30, 2005).
19. Alazawi, 391 F. Supp. 2d at 632.
20. No. 04-1408, 2005 U.S. App. LEXIS 10088 (6th Cir. May 25, 2005).
21. 251 F.3d 1199 at 1203 (8th Cir. 2001).
22. 121 Fed. Appx. 813, 815 (10th Cir. 2005).
23. Sprague,121 Fed. Appx. 813.
24. 42 USCS § 2000e-2, Section 703(e).
25. 432 U.S. 63 (1977).
26. 29 C.F.R. § 1605.2(e)(1).
27. 29 C.F.R. § 1605.2(c)(1).
28. 479 U.S. 60 (1986).
29. 58 FR 49456.
30. 358 F.3d 599 (9th Cir. 2004).
31. 313 F. Supp. 2d 1069, 1082 (D. Colo. 2004).
32. No. 05-1099, 2006 U.S. App. LEXIS 4289 (6th Cir. Feb. 21, 2006).
33. 29 F.3d 589 (11th Cir. 1994).
34. 433 F.3d 537 (7th Cir. 2005).
35. 274 F.3d 470 (7th Cir. 2001).
36. 735 F.2d 388, 391 (10th Cir. 1984).
37. 781 F.2d 772 (9th Cir. 1986)
38. Bruff v. Mississippi Health Services Inc., 244 F.3d 495 (5th Cir. 2001).
39. NO. 3:03CV-737-H, 2006 U.S. Dist. LEXIS 11248, 2 (W.D. Ky., Mar. 22, 2006).
40. 390 F. 3d 126 (1st Cir. 2004).
41. NO. 04-30105-MAP, 2006 U.S. Dist. LEXIS 8394 (Dis. Ct. Mass., March 3, 2006).
42. Noesen v. Medical Staffing Network Inc., Wal-Mart Stores, and State of Wisconsin, Memorandum and Order No. 06-C-071-S. (W.D. Wisc. 2006).

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J. Gregory Grisham is a partner in the Memphis law firm Weintraub, Stock & Grisham PC and received his law degree (with honors) from the Cecil C. Humphreys School of Law at the University of Memphis, where he was a member of the law review. He represents employers exclusively in labor relations and employment litigation before various state and federal courts and agencies. The author would like to acknowledge Memphis attorney Jacqueline Singh and University of Memphis J.D. candidate Joshua M. Roberts for their assistance.