By Gerald L. Maatman, Jr. and Lily M. Strumwasser

Today we are sharing the second article of a six part series that Seyfarth Shaw LLP is publishing on Inside Counsel. The full article is available here and set out below.

Religious discrimination lawsuits are on the rise. According to the EEOC’s press releases, in its 2013 fiscal year, the Commission filed 12 religious discrimination lawsuits. That is three more religious discrimination lawsuits than filed in fiscal year 2012. The sheer number of religious discrimination charges initiated by the EEOC also should grab employers’ attention. These statistics send the message that religious discrimination is on the EEOC’s radar, and therefore, it should be on the corporate compliance radar screen too.

Religion – It’s a protected class

Under Title VII of the Civil Rights Act of 1964, employers with more than fifteen employees are prohibited from discriminating against employees or applicants based on their religion. Title VII further requires employers to provide a reasonable accommodation to an employee’s sincerely held religious belief. To avoid providing a religious accommodation, an employer must be able to show that it cannot do so without undue hardship to its business.

In 2008, the EEOC issued revised guidelines to employers regarding their obligations to accommodate religious beliefs. The EEOC’s guidelines define religious beliefs, practices, and observances as “those that are theistic in nature, as well as non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

Although the EEOC’s guidelines state that employers may question the sincerity of an employee’s religious observance, in the same breath it recommends that employers give substantial deference to an employee’s religious beliefs. Thus, rather than challenge the sincerity of an applicant or employee’s religious belief, employers are better off asserting that the requested accommodation imposes an “undue hardship” on the employer’s business.

Religious discrimination cases on the rise

Between 1992 to 2007, religious discrimination claims increased by 100 percent. This statistic grabbed the EEOC’s attention, and since then it has taken several steps to educate employers about what constitutes religious discrimination. Perhaps the attention surrounding religious discrimination emboldened employees to continue filing charges with the EEOC.

In recent years there has been a steady rise in religious discrimination charges filed with the EEOC. The graph below displays this trend.

Charges of religious discrimination

  According to a recent Wall Street Journal article, the 3,811 religion-based complaints the EEOC received in 2012 was the second-highest level ever — just below the whopping 4,141 claims filed in 2011. The EEOC has not yet reported its tallies for fiscal year 2013; we are anticipating the EEOC will release this information in mid-November to December in the Commission’s annual Performance and Accountability Report.

FY 2013 religious discrimination charges

Taking a look at the specific types of cases initiated by the EEOC provides valuable lessons to employers. The cases below highlight five of the EEOC’s FY 2013 religious discrimination lawsuits.

1. EEOC v. Bo-Cherry, Inc., d/b/a Bojangles: In this case, the EEOC alleged the employer discriminated against a male Muslim employee based on his religion. The employee worked in the restaurant’s kitchen and followed a sect of the Sunni branch of the Islamic faith, which requires men to grow beards the length of their fist. The employer allegedly instructed the employee to shave his beard. The employee refused, and asked if he could wear a beard net (similar to a hair net). After the employer allegedly denied the employee’s request and subsequently fired him, the EEOC filed suit in the U.S. District Court for the Western District of North Carolina.
2. EEOC v. Dynamic Medical Services, Inc.: In this case, the EEOC asserted the employer violated Title VII by requiring employees to attend classes about Scientology. The EEOC claims employees repeatedly said they did not want to attend the classes but were told it was a job requirement. After two employees refused to participate in the Scientology practices, the employer allegedly terminated their employment, and the EEOC filed suit in the U.S. District Court for the Southern District of Florida.
3. EEOC v. United Cellular, Inc.: In this case, the EEOC claimed the employer discriminated against a Seventh Day Adventist by refusing to accommodate his religious request to not work from sundown on Friday to sundown on Saturday. After the employee refused to work on his Sabbath, the employer allegedly terminated his employment and the EEOC filed suit in the U.S. District Court for the Northern District of Alabama.
4. EEOC v. Scottish Food Systems, Inc.: In September, the EEOC filed suit on behalf of Sheila Silver, member of the Pentecostal church. The employer required Silver to wear pants to work as part of its dress code policy. As part of Silver’s religious beliefs, she only wears skirts and therefore refused to wear pants to work. The employer allegedly fired Silver for refusing to wear pants and the EEOC subsequently filed suit in the U.S. District Court for the Middle District of North Carolina.
5. EEOC v. CONSOL Energy, Inc. and Consolidated Coal Co.: In this case, the EEOC filed suit on behalf of Beverly Butcher, an Evangelical Christian, alleging her former employer discriminated against her religious beliefs. The employer required its employees to use a biometric hand scanner to track their time and attendance. Butcher informed his employer that using the hand scanner violated his religious beliefs. The employer allegedly refused to offer Butcher an accommodation, such as submitting manual time records or reporting to his supervisor, and the EEOC subsequently filed suit in the U.S. District Court for the Northern District of West Virginia.

FY 2013 religious discrimination settlements

During fiscal year 2013, the EEOC also settled several religious discrimination lawsuits. Although the monetary amount of religious discrimination settlements are not as significant as some of the multi-million dollar consent decrees the EEOC has secured in systemic litigation, its religious discrimination settlements provide insight on one of the driving forces behind the EEOC’s religious discrimination initiative. Notably, much is at stake for employers.

The list below highlights some of the EEOC’s religious discrimination settlements in fiscal year 2013.

1. EEOC v. Ozarks Electric: In March 2013, Ozarks Electric agreed to pay $95,000 to a former Jehovah’s Witness employee to settle her allegations that it failed to provide her a religious accommodation by giving her a day off work to attend a religious convention.  
2. EEOC v. Landmark Hotel Group: In July 2013, the employer paid $45,000 to settle a religious discrimination lawsuit, which alleged the employer refused to provide a Seventh-day Adventist with a religious accommodation that allowed her to take her Sabbath off work.
3. EEOC v. Voss Lighting: In this case the employer agreed to furnish $82,500 to an applicant for an available operations supervisor position after it allegedly refused to hire him because of his religious beliefs. During the applicant’s interview, the employer allegedly focused on his religious beliefs and practices and asked the applicant to identify the churches he attended, “when and where he was saved”, and whether he would agree to come to work early to attend Bible study.
4. EEOC v. Maita Chevrolet Geo: In September 2013, this employer paid $158,000 to settle an employee’s claim that the employer failed to accommodate his religious practice of the Seventh-day Adventist, and instead harassed, disciplined, and discharged him because of his religion.
5. EEOC v. Abercrombie & Fitch: On Seyfarth’s Workplace Class Action Blog, we have reported the EEOC and Abercrombie & Fitch entered into a comprehensive settlement of two separate religious discrimination lawsuits filed on behalf of Muslim teens who wear hijabs (religious headscarves) and who allegedly had adverse employment actions taken against them as a result. Abercrombie agreed to pay $71,000 to the Muslim teenagers. Abercrombie also agreed to inform applicants during interviews that accommodations to the “Look Policy” may be available.

Implications for employers

The EEOC’s pursuit of religious discrimination cases serves as a reminder to employers that when employees ask for religious accommodations, employers must take them seriously. Implementing a policy that requires consideration of the accommodation can aid in avoiding employers’ liability and also works toward the goal of discrimination-free workplaces.