September 2008

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On July 23, 2008, the EEOC updated its pronouncements on the meaning of “religious discrimination” under Title VII, how to manage and address competing employee rights in the area of religion, and how to avoid engaging in religious discrimination in the workplace.

The EEOC issued three documents: an update to its Compliance Manual Section on religious discrimination; a “Question and Answer” document addressing basic issues in that area; and a “Best Practices Manual” that provides suggested strategies for legal compliance. The documents are intended to provide guidance to employers, employees, and legal practitioners, as well as EEOC investigators addressing religious claims under Title VII. Broadly speaking, the documents address definitions (e.g. what is religion), fundamental legal questions (e.g. what is religious harassment or discrimination and what is required to accommodate religion); and compliance guidance (e.g. how to avoid claims, how to balance demands to engage in religious expression versus demands to be free from workplace proselytizing).

What is ‘Religion’?
As the EEOC Q&A document explains, “For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few — or no — other people adhere to it. Title VII protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.” Under this broad view of “religion” adopted by the EEOC, an employer has virtually no ability to question an employee’s assertion that he/she is “covered” with respect to asserted religious beliefs (or non-beliefs).

The same Q&A document identifies a “religious practice” that might trigger the accommodation duty: “Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Whether a practice is religious depends on the employee’s motivation.”

The EEOC notes, however, that mere personal preferences are not “religious beliefs” even if they are strongly held. Thus, a person who personally espouses or adheres to vegetarianism would not in most cases be espousing a religious belief. Similarly, using an example from the Compliance Manual, an employee’s tattoos and body piercing would not be deemed religious (such as to require an exemption from a company dress code) where it was advanced as a form of self-expression through body art (as compared with rooted in a religious tradition or belief).

Religious Harassment and Discrimination
The EEOC explains that discrimination includes treating individuals disparately because of their religion in the terms and conditions of employment (e.g. interviewing, hiring, firing, promoting, and the like). It also includes differential treatment generally. As the EEOC Q&A document explains, “For example, if an employer allowed one secretary to display a Bible on her desk at work, while telling another secretary in the same workplace to take the Quran off his desk and out of view because co-workers ‘will think you are making a political statement, and with everything going on in the world right now we don’t need that around here,’ this would be differential treatment in violation of Title VII.” Similarly, adopting different security requirements for adherents of some religions (e.g. Muslims) as opposed to others would be religious discrimination.

The Compliance Manual has this to say about harassment: “Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of ‘quid pro quo’ harassment might also give rise to a disparate treatment or denial of accommodation claim in some circumstances), or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.” Permitting or tolerating harassment of employees by customers is equally illegal as is permitting such conduct by managers or employees.

Compliance Guidance
Perhaps most useful is the EEOC’s guidance on how to avoid claims and fulfill obligations under the law. The EEOC Best Practices Manual suggests that employers ensure that their policies explain the legal obligations in this area. Supervisors and managers should also be trained to understand when an issue of religious discrimination and/or a duty of accommodation arises and how to respond to it. The Manual and the other EEOC documents provide examples that can help employers balance the rights of employees to express religion against the right to be free of undue religious pressure in the workplace.

(Courtesy, Shaw and Rosenthal of the Worklaw® Network)

Most employees with disabilities can maintain acceptable conduct on the job. However, on occasion, some employees with disabilities might exhibit unacceptable conduct at work. These situations leave employers with concerns about discipline, accommodations, and the ADA.

The Job Accommodation Network (JAN) consulting service provides job accommodation ideas helping employees with disabilities perform their jobs. Although it might seem challenging to identify such accommodations, following these guidelines can help resolve these workplace issues quickly:

First, create a workplace policy on conduct. Provide clear explanations of expected, and prohibited, behavior. Specific behaviors to address might include: destruction of property, using profanity at work, insubordination, or leaving one’s work area. Vague statements such as “employees must act professionally” might be interpreted many ways, and it can be difficult to determine whether or not an employee’s behavior complies with such a statement. Precise wording of your policy can help ensure that employees understand the policy. Provide your policy to employees and offer training and periodic reviews to ensure compliance.

Next, train managers and supervisors to apply your policy in a consistent and reliable manner to all employees. Applying a policy often means “counseling” employees on conduct issues, using “performance plans,” or disciplining employees for conduct violations. The ADA does not require employers to withhold or rescind disciplinary actions from employees with disabilities, nor to lower standards of conduct. Furthermore, the ADA does not prevent employers from maintaining safe workplaces (free from violence or threats of violence). Require managers and supervisors to apply your policy equally to all employees.

Then, encourage employees with disabilities to request job accommodations that ensure compliance with your conduct policy. Job accommodations can help minimize the likelihood of employees with disabilities violating your conduct policy, such as attendance rules or computer use guidelines.

Some examples of job accommodations that help employees with disabilities comply with conduct policies are:

• A sales manager with anxiety is required to participate in staff meetings by sharing one thought or idea with the group. Due to her disability, she has difficulty speaking in front of groups. The employer allows her to submit her idea or thought via e-mail soon after the staff meeting.
• Due to chronic pain, a retail employee experiences irritability during long work shifts when medications wear off. Thus, it becomes difficult to maintain satisfactory customer service. As a job accommodation, the employer shortened the employee’s work shift, which helped manage pain, lessened irritability, and improved the employee’s customer service.
• A claims processor who had ADHD frequently disrupted teammates with impulsive communication and socialization. To help control his behavior, the employer provided a job coach to teach strategies for managing impulsiveness and reinforcing appropriate workplace conduct.
• An employee with depression enjoyed reading inspirational phrases on various Web sites to help her manage her mood at work. However, using office computers to surf the Internet violated company policy. The employer suggested bringing inspirational books to work, and allowing her to read short portions throughout the day.

Finally, if job accommodations don’t prevent conduct violations, or if employment separation is imminent due to the severity of the conduct violation, proceed with termination. Be prepared to show that the conduct standard was job-related and consistent with business necessity. According to the EEOC Guidance on ADA and Psychiatric Impairments http://www.eeoc.gov/policy/docs/psych.html, some conduct standards might not be job-related for a specific position, and if not, imposing discipline or termination could violate the ADA.

Some JAN users are concerned about the outcome of a recent court case called Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). The case, from Washington State, involved the discipline and subsequent termination of an employee with bipolar disorder. Washington’s State Human Rights Commission issued guidance on this case: http://www.hum.wa.gov/DisabilityMatters/Gambini.html

JAN strives to help employers understand their responsibilities under the ADA, and hopes that this article will help you succeed in writing and implementing conduct policies in your business.

Suzanne Gosden Kitchen, Ed.D.
Senior Consultant

(Courtesy of the Job Accommodation Network)

The Los Angeles Times recently ran a series of articles about how cutbacks in sick pay were leaving unhealthy employees stuck in the workplace. One article lamented the reduction or elimination of paid sick days. This has a great impact on low-wage earners. It also protested the collapsing of sick pay and vacation pay into what’s known as “paid time off.”

Here are some ways of looking at the situation that these articles didn’t discuss:

• Most employees get sick because they don’t take care of themselves. It’s their responsibility to take care of themselves — not the employers.
• Most sick days are abused and generate little “white lies.” According to CCH, less than one-third of all sick days taken are for people who are truly sick!
• According to another L.A. Times article, the average worker takes off 3.9 days per year for their own illness and 1.3 days to care for ill family members. It would seem fair for an employer to allow an employee five sick days, or to add those five sick days to a vacation schedule. I’m not sure why an employer would be obligated to do otherwise (some employers cited give weeks of sick leave and allow full accumulation).
• Many employee support groups have successfully begun legislating for mandated sick pay benefits. This is but one way to get around minimum wage requirements.

Of course, employers lament they only have so many choices in an ever-tightening economy. They can cut or eliminate healthcare costs, sick pay, salaries or job positions — or just go out of business. Not surprisingly, some employers still have well-run businesses and remain generous with their benefits and employee perks.

There are garment manufacturers paying above minimum wage and offering healthcare coverage and vacations. There are employers who allow an incredible amount of flexibility so long as employees are accountable and get their jobs done. So, in the end, it shouldn’t be legislation, but rather business competition that settles this issue.

The best companies to work for will be the ones that offer the greatest amount of employee benefit, while creating a never-ending stream of profits.

As a final note, one of the articles gave recommendations on how to call in sick. Without repeating their standards, here is what I’d recommend:

• Be clear about your attendance requirements.
• Show up on time unless you are, in fact, sick.
• Give as much advance notice as possible.
• If your boss won’t let you watch your kid’s championship soccer game, maybe you should consider another boss. If you think you’re somehow obligated to attend every one of your child’s soccer games, regardless of business demands, then maybe the company needs a new employee.
• Know that if you’re out for more than a few days you ought to show up with some kind of medical documentation. Don’t make an employer drag it out of you.
• Don’t show up sick and infect others. Even if you’ve already used up your vacation and sick days.
• Finally, see how you can mitigate your absence. Perhaps you can obtain permission to work a few days from home or make yourself available for emergency phone calls.