Religious Accommodations: A Tale of Two Cases

Claims of discrimination base on religion have risen significantly over the last decade. This is likely due to the aftermath of the September 11th attacks in addition to increased immigration as reflected in the workforce.   The EEOC has joined many employees (current and former) in bringing suit against their employers. 

The law requires that an employer or other covered entity must reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business.  In these cases, the employee must show that he or she:  (1) has a bona fide religious belief that conflicts with a job requirement, (2) notified the employer of the belief, and (3) was disciplined for failing to comply with the conflicting job requirement.  If the employee can show these elements, the employer may offer as a defense either that it offered a reasonable accommodation, or could not do so without undue hardship, i.e., more than a minimal burden on the operations of the employer's business.

A Tale of Two Cases

Time off for prayer
JBS USA, LLC recently prevailed against the EEOC in a religious accommodation case.  The EEOC filed a lawsuit in federal court against JBS, a meatpacking company, claiming that JBS failed to reasonably accommodate Muslim employees’ religious practices by denying them unscheduled prayer and meal breaks during Ramadan. The EEOC alleged that JBS’s failure to allow Muslim employees to take unscheduled breaks was unreasonable and discriminatory. 

However, court concluded that JBS had proven that the unscheduled prayer breaks would impose more than de minimus costs on the company.  The unscheduled absence of workers from their jobs would 1) adversely affect food safety and 2) cause an imposition on co-workers who would have to cover for the absent workers.   JBS showed that if a Muslim employee left a production line for an unscheduled prayer break, and the line was not stopped or slowed, the remaining workers on the line might not be able to keep up with required food safety practices. If the line was slowed or stopped, raw meat might be exposed to air and bacteria.   Also, when a Muslim employee took a prayer break, another employee would need to leave his or her own work aside to fill in. Non-Muslim employees would be required to work harder, and under potentially dangerous conditions, as a result of the prayer breaks.  

Based on this evidence, the court found in favor of the employer.


Dress Codes
A federal judge recently found clothing retailer Abercrombie & Fitch liable for religious discrimination when it fired a Muslim employee for wearing her hijab (religious headscarf). 

A&F stated that the employee was terminated for non-compliance with the company's Look Policy.  A&F argued that "its Look Policy goes to the 'very heart of [its] business model' and thus any requested accommodation to deviate from the Look Policy threatens the company's success." The court found that Abercrombie only offered “unsubstantiated opinion testimony of its own employees to support its claim of undue hardship” and that these opinions “were not linked to any credible evidence."

What caused the different outcomes?  
If you cannot demonstrate using objective data or evidence that accommodation will cause undue hardship, you should consider granting the accommodation.  

What can you do?
If an employee notifies you that s/he needs an accommodation for religious reasons, you and the employee should engage in an interactive process to discuss the request and determine possible accommodations   If it would not pose an undue hardship, it may be difficult for you to justify not granting an accommodation.  

You should consider seeking legal advice in evaluating whether an accommodation is reasonable and whether it might result in an undue hardship.  Please contact me with any questions or visit my website.  

Who is a Supervisor? The Supremes Have Spoken.

Good News For Employers - But Don’t Celebrate

Last week, the Supreme Court today made it more difficult for employees to establish employer liability doe harassment in the workplace by narrowing the definition of "supervisor."  Under Title VII of the Civil Rights Act of 1964, employers are liable for harassing conduct of their supervisors.  If the harassing employee is a co-worker rather than a supervisor, the employer is liable only if the employer was negligent in controlling working conditions.

In deciding Vance v. Ball State Univ., et al, the high Court made it clear that the defining characteristic
of a supervisor is the authority to take tangible employment actions and that without such authority an employee is not a supervisor for purposes of analyzing an employer's liability.

What is Tangible Employment Action?

A tangible employment action is defined by the courts as affecting a "significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." This definition no longer includes the daily or routine monitoring or assigning projects, shifts, or the ability to exercise significant direction over another's daily work.  

Why This Matters - A Little Background

Simply put, Title VII of the 1964 Civil Rights Act makes it easier to hold an employer accountable for workplace harassment if the harasser is considered a supervisor.  If the wrongdoer is a supervisor and has taken a tangible employment action against the complainant, the employer is strictly/vicariously liable.  If there was no tangible employment action, the employer must establish the following in order to avoid liability: (1) the employer exercised reasonable care to prevent and correct any harassing behavior; and (2) that the plaintiff unreasonably failed to take advantage of the preventive/corrective opportunities that the employer provided.

Bottom Line


Employers can still be held liable for conduct that occurs in the workplace.  Employers should continue to provide routine and mandatory anti-harassment training for all employees, with additional training for managers.  Employers should have policies and procedures in place and in action that reflect the employer's efforts to exercise reasonable care to prevent and correct promptly any unlawfully harassing behavior.

Employers should establish and support an anti-harassment policy with a complaint procedure for victims and witnesses of harassment.


If you have any questions about these developments or would like assistance with anti-harassment training or establishing anti-harassment policies or complaint procedures, contact me or visit my website.

Can A British Pub Seek To Hire Brits?

Longbow Pub and Pantry is a British pub in Brooklyn.  But it’s not just a pub, it’s the real deal.  So when the owners needed a bartender they wanted someone as authentic as their establishment – a real Brit.  They placed an ad on Craigslist seeking “energetic and enthusiastic men and women with an appreciation of craft beer, good food, whisky and real football (a k a soccer).”  The ad also stated that “being British definitely works in your favor.”  That's when their problems started.

Is that legal?

The New York City Commission on Human Rights (NYCCHR) reviewed this ad and served Longbow with a legal notice stating that the bar had violated discrimination law “by giving a preference to employment applicants based on their national origin.”

The New York City Administrative Code provides that “it shall be an unlawful discriminatory practice (d) For any employer . . . to print or circulate any advertisement or publication, or to use any form of application for employment which expresses, directly or indirectly, any limitation, specification or discrimination as to age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status, or any intent to make any such limitation, specification or discrimination.”

The commission offered to settle the matter for $2,500.

According to a recent New York Times article, Longbow’s owners say that they are “seeking the best applicants to help them cater to their ethnically specific audience.”  The owners are willing to hire qualified people who are not British.

Hooters to the Rescue - Really?

The bar owners have invoked the “Hooters defense. ”  This is a provision of the city law that provides leeway for employment policies that bear “significant relationship to a significant business objective.”  Hooters was able to defend discrimination suits from men claiming that being female is “reasonably necessary” to the performance of Hooters Girl’s job duties.

So far, the NYCCHR maintains that Longbow’s owners posted an ad that is discriminatory because [the ad] clearly expresses a preference for one group of people over another.

So what can employers do? A few tips

• Keep you advertisements based on qualifications.  
• Make sure that the stated qualifications are closely related to the duties, functions and responsibilities to be performed.  
• Stay away from language that favors or appears to favor a prospective applicant based on impermissible criteria such as age, race, creed, color, national origin, gender, disability, marital status, etc.

If you're facing this issue and have any questions, contact me or visit my website.