Religion in the Workplace: Avoiding Religious Discrimination Claims

Posted by Jason Shinn on August 04, 2011

Muslim Prayers.jpgThis week marked the beginning of Ramadan, which is the Islamic month of fasting. Participating Muslims generally refrain from eating and drinking during daylight hours. Ramadan is intended to teach Muslims about patience, spirituality, humility and submissiveness to God.

It is also a good reminder for the need to understand restrictions against religious discrimination in the workplace - not only Islamic religion but all religions. 

This is because Michigan employers are generally prohibited from discriminating in employment decisions and conditions on the basis of religion under Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) and Title VII under federal law. 42 U.S.C. §§ 2000e et seq.; MCL 37.2202; See also 29 CFR 1605.1 et seq. for additional EEOC guidelines concerning religious discrimination.

Three Forms of Religious Discrimination 

Claims of religious discrimination under Title VII are often framed under three general theories:

  • Disparate treatment: An employee may may assert a disparate treatment theory where an employer treats an employee less favorably than other similarly situated employees because of the employee's religious beliefs or practices. For example, in Campbell v. Avis Rent a Car Sys. (pdf) (E.D. Mich. 2006) a Muslim plaintiff contended that she was terminated because of her Muslim religion and not for legitimate, non-discriminatory reasons because no non-Muslim employee had been terminated under similar circumstances; 
  • Hostile Work Environment: Under this theory, an employee may claim that the employer subjected the employee to a hostile work environment that may take the form of pervasive religious slurs or insults. An example of this type of discrimination occurred in EEOC v. Sunbelt Rentals, Inc., (4th Cir. 2008) where the plaintiff suffered severe and pervasive religious discrimination when several co-workers, including one supervisor, repeatedly called him "Taliban" and "towel head," questioned his allegiance to the United States, mocked his kufi and beard and observance of prayers, and made several anti-Muslim comments in the plaintiff's presence; and  
  • Failure to Accommodate: An employee may claim that an employment requirement, although evenhandedly implemented by the employer, conflicts with the person's religious practices. Enforcement of such a requirement against the employee constitutes a violation of Title VII unless the employer demonstrates that it is unable to accommodate the employee's religious practices without undue hardship. This type of claim was seen in EEOC v. Abercrombie & Fitch Stores, Inc. (2011) where the employer was found to have discriminated against a job applicant for its retail store because she wore a Muslim head scarf. The employer unsuccessfully argued that the scarf violated its employee "look policy" and, therefore, was an undue hardship. 

The Take Away

While the preceding examples of religious discrimination involve Muslim religious practices and beliefs, it is important to realize that religious discrimination may involve any belief that constitute a “religion." For example, see the Ohio Employer's Law Blog's discussion on a claim involving a Taco Bell employee and practicing Nazarite's refusal to cut his hair in accordance with his Biblical views. Further, Title VII broadly defines the term "religion" as “all aspects of religious observance and practice, as well as belief." But defining what is a "religion" or what religious accommodation may or may not be appropriate is best addressed in collaboration with a competent employment attorney.

For further information on Muslim religious practices, the Council on American-Islamic Relations provides employers with this overview of Muslim Religious practices (PDF).   

Changing Gears in Reverse Discrimination Claims: Differences under Michigan and Federal Law

Posted by Jason Shinn on July 19, 2011

Changing Gears.jpgA Flint jury recently awarded $535,000 to a white former employee wrongfully fired after making a racial comment. This verdict also highlights important differences when it comes to reverse discrimination claims under Michigan and federal law.

For background, Mr. Craig Hecht, a former charter school teacher, was fired from Linden Charter for undisputedly telling another employee that “white tables are better than brown tables and brown tables should be burned.” 

At trial, however, Mr. Hecht was able to show that black staff members at Linden Charter Academy also made racial jokes but were never punished like him. 

Reverse Discrimination under Michigan and Federal Law

Reverse discrimination generally refers to discrimination experienced by a member of a class that has not historically been disadvantaged.

Under both Michigan and federal employment discrimination law, an employment plaintiff - minority and non-minority - must generally satisfy a burden-shifting framework (commonly called the McDonnell Douglas test) to establish a prima facie case of discrimination by showing the plaintiff:

  1. Was a member of a protected class; 
  2. Suffered an adverse employment action; 
  3. Was qualified for the position; and 
  4. Was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees.

Duch v. Mich. Dep't of Corr. (E.D. Mich. Feb. 15, 2011).

Reverse Discrimination Differences under Michigan and Federal Law

In addition to the preceding test, under federal law, a reverse discrimination plaintiff must also demonstrate "background circumstances" to support the suspicion that the defendant is that unusual employer who "discriminates against the majority." 

In contrast, Michigan law diverged from federal law in 2004 on this point. Specifically, in Lind v. City of Battle Creek, 470 Mich. 230, 232-233 (2004), the Michigan Supreme Court abolished the different standards for minority and non-minority plaintiffs. In this regard, the Court reasoned that the Michigan Civil Rights Act simply protected all persons from racial discrimination equally, with uniform burdens of proof, regardless of the race or races involved. 

Closing Thoughts

Mr. Hecht's verdict is a good reminder of three important points:

  • Employers must have a clear policy prohibiting discrimination in employment. That policy should also define prohibited discrimination and provide multiple avenues for making complaints of perceived discrimination; 
  • A policy is only as good as its enforcement. And even the best policy that is not followed or (worse) applied inconsistently can result in an expensive head-on collision with a jury; and
  • There are a number of similarities between federal and state employment law. But there are also significant differences. It is, therefore, critical to understand these similarities and leverage the strategic value or work to minimize the disadvantages offered to one side or the other, i.e., the employer or individual employee.