The Employment Law Counselor hosted by Jeff Stewart Episode 11

In the newest episode of The Employment Law Counselor in collaboration with the Professional Liability Underwriting Society, Jeff is joined by Tanya Salgado, Partner, to discuss how religious discrimination and religious harassment claims are expected to rise dramatically in the next year. With religious protests around the country being a topic of discussion in the workplace, it is imperative for employers to understand what constitutes religious discrimination and religious harassment, as well as to train supervisors to handle these issues.

Special thanks goes to White and Williams, LLP for partnership in the production of this episode.

Transcript

PLUS Staff: [00:00:00] Welcome to this PLUS podcast, The Employment Law Counselor hosted by Jeff Stewart. Before we get started, we'd like to remind everyone that the information and opinions expressed by our speakers today are their own, and do not necessarily represent the views of their employers, or of PLUS. The contents of these materials may not be relied upon as legal advice.

Jeff Stewart: Hello, everyone, and welcome to the Employment Law Counselor podcast. I'm your host, Jeff Stewart, and today we will be talking about religious discrimination in the employment realm. This podcast is a collaboration between White and Williams LLP, and the Professional Liability Underwriting Society, commonly referred to as PLUS.

While our podcast is not legal advice, it is a practical discussion between two attorneys that deal with the maze and minefield of labor and employment laws on a daily basis. If you like what you hear, please give us a five-star review and subscribe, so you never miss an episode. I'm joined today by one of my colleagues at White and Williams, Tanya Salgado, who practices out of our firm's Philadelphia office.

How are you doing today, Tanya? 

Tanya Salgado: I'm doing great. [00:01:00] How are you doing, Jeff? 

Jeff Stewart: I'm doing well. And thank you for coming back. You've been on our show before. 

Tanya Salgado: I have. Thank you for having me back. 

Jeff Stewart: Absolutely. Well, you did such a fine job on the pregnancy discrimination laws that were recently passed that I thought let's have Tanya back because she has great insight into all kinds of things.

So, thank you today for joining again. 

Tanya Salgado: It's a pleasure, Jeff, as always. 

Jeff Stewart: All right. So, let's dive right in today. We're talking about religious discrimination. And you know, this is an area where in 2021, there were 2,111 charges filed with the EEOC, but then in 2022, there were over 13,000 charges. And of course that is just crazy. A 650 percent increase. 

Tanya Salgado: It's a massive jump to be sure. 

Jeff Stewart: Absolutely. And of course, that was I believe mostly due to the vaccine issue arising out of the COVID pandemic. Would you [00:02:00] agree with that, Tanya? 

Tanya Salgado: Yes, absolutely. I think that mandatory vaccine policies were enacted in response to the COVID pandemic and, you know, a lot of people objected, and issues were raised about whether or not an individual’s religious beliefs were being impacted by these policies. 

And a lot of information began to become more widely known. Religious discrimination has always been prohibited under Title VII, but it was not as widely known. And I think that the COVID pandemic and the mandatory vaccine policies really put this issue first and foremost on people's radars.

And that certainly resulted in a big increase in charges. And I think in light of the fact that now that people are aware of religious discrimination and religious accommodations, I think that it's also going to continue to drive an increase in charges, not just in the COVID vaccine related, but more generally.

You know, we live in a [00:03:00] diverse society with a variety of religious beliefs. Now that people are aware that this is an available recourse, I think that we will continue to see a continuing increase in charges. 

Jeff Stewart: Absolutely. And, especially, you know, just looking around in the world. I mean, with, you know, the spike of what I'll say are religious based conflicts arising from the Israel-Hamas war and the passions and protests that have been sparked here in the US as a result, we certainly can see another spike because not just as a result of protests or anything like that, but just more discussions that will happen in the workplace, much like when the Black Lives Matter movement really came to prominence.

There were a lot more discussions in the workplace. And then frankly, a few months later, we started to see a rise in race discrimination claims and racial harassment claims in the workplace, because the workplace really is a reflection of where we are as a society. 

Tanya Salgado: That's right. You know, [00:04:00] people need to come to work to support themselves and to support their lives.

It's natural to talk about what's going on in the world while you're at work. And oftentimes these discussions can take a turn. And when it takes a turn that rises to the level of a hostile work environment, I think it's only natural that you're going to see an increase in these types of charges and claims.

Jeff Stewart: Absolutely. So, let's talk about some of the basics of religious discrimination. I mean, as you mentioned, religious discrimination has been prohibited in the workplace for quite some time and is frankly prohibited by Title VII of the Civil Rights Act of 1964. And not only does it prevent discrimination based on religion, but it requires employers to accommodate what are referred to as Sincerely Held Religious Beliefs.

That's the legal buzzword. So, Tanya, why don't you explain to our listeners what makes a belief sincerely held?

Tanya Salgado: Yeah. So, it's a really interesting question. And, you know, like I said before, I think a lot of [00:05:00] employees and employers prior to the pandemic, we're not aware of the reasonable accommodation requirement.

And I think that that’s really notable. I think most employees know about reasonable accommodations in the context of a disability. The Americans with Disabilities Act has been law for quite some time, but the idea of having an accommodation for one's religion, until recently, I don't think it was on people's radar.

So again, that raises a really important question, which is what is a religious belief and what does it mean? What makes a religious belief sincerely held. So, you know, this is not a new question. The Supreme court has been grappling with this issue for decades. And just by way of background, I should say that there has been some reluctance on the part of courts to define religion and religious practice that really flows from the first amendment of the U.S. constitution, which provides for the free exercise of religion.

So, you know, for that reason, courts have a [00:06:00] tendency to view religion in very broad terms because Title VII does provide protection for religious beliefs. We have to have some parameters. So, the EEOC published a guidance around the time of COVID that really helped employers understand what is religion for purposes of their obligations to accommodate religion.

And the emphasis here is that it includes both traditional. organized religions, the ones that we all are familiar with, Christianity, Judaism, Islam, Hinduism, to name a few. But Title VII also protects religious beliefs that are uncommon, even if they're not part of a formal church, and even if these beliefs are held by only a few people.

Again, under First Amendment jurisprudence, the courts will err on the side of freedom and finding that the beliefs are a religion. And again, the Supreme Court has warned that courts must not presume to determine the [00:07:00] place of a particular belief in a religion or the plausibility of a religious claim.

So that really makes it somewhat challenging for employers when you're faced with a situation where an employee comes forward, they say they need an accommodation. So, I think that we do have some parameters here. 

Jeff Stewart: Absolutely. And I have told employers and advised employers many times that you really don't want to go down the road of trying to challenge whether someone sincerely believes whatever they are telling you.

I mean, it's one thing if it's not actually a religion. For example, there is, there have been courts that have said, veganism is not a religion, but it's a way of life. Okay, but it's not a religion. It doesn't have the tenets of being a religion, but for the most part, I generally advise employers not to try to challenge whether someone truly believes what they're telling you that they believe.

Absolutely. Do you do the same? 

Tanya Salgado: Absolutely. [00:08:00] And again, I think this was a big issue during the COVID pandemic when so many employees were requesting exemptions from the mandatory vaccine policies and some employers really pushed back in a way that I think was probably heavy handed. And I would like to mention a recent decision that was reached by the third circuit court of appeals in which an employee had requested a schedule change due to his need to take time off from work for religious observance.

And the employer pushed back and said that he needed to provide a formal letter, correspondence on letterhead as a precondition for granting him this time off. The employee at the time was not a member of a congregation. He provided some other information to support the sincerely held belief. And ultimately, he was subject to progressive discipline, and interestingly, the EEOC took this case on the cases EEOC versus center one [00:09:00] and regional attorney Deborah Lawrence was quoted as saying “Title VII’s prohibition of religious discrimination.”

And it's mandate that employers reasonably accommodate workers’ religious beliefs and practices embody our country's founding principles of religious freedom and tolerance. And what's interesting is that it was the requirement that this employee provide a letter on letterhead that was at issue and ultimately the third circuit reversed summary judgment and sent the case back for a jury trial.

So, I think that that serves as a warning to employers as far as the limits on what an employer can and cannot do in terms of evaluating these requests. 

Jeff Stewart: Absolutely. And to go a step further, the employee is not required to show, “Hey, I attend church on this day, or I do A, B and C.” It's a matter of their beliefs.

It's not a matter of how they express their beliefs or show their beliefs. It's a matter of what they believe. And that's why I, [00:10:00] like I said, I advise my clients, that's not the area to push back on. 

Tanya Salgado: Yep. Fully agreed. 

Jeff Stewart: Now in this area, what the employer is required to do is accommodate those sincerely held religious beliefs.

And again, it is a reasonable accommodation, much like the ADA requires a reasonable accommodation and it's things like time off for religious observation, potentially a modified schedule. I'm sure you're aware of a number of others, you know, could be dressed or uniform policies, but Tanya, let me ask you this; when an employer wants to deny an accommodation request, how do you advise or what analysis do you inform that needs to be taken in order to evaluate and potentially deny such a request? 

Tanya Salgado: Yeah, so that's a really good question. And it's something that the legal landscape has changed dramatically just in the past year.

So [00:11:00] prior to the Supreme Court's decision in June of 2023, in the case of Groff v. DeJoy, the standard was more than a de minimis cost, and let me back up just a minute. The exception that's actually written into Title VII is that employers are not required to provide an accommodation that would result in an undue hardship on the conduct of the employer's business.

That's the standard undue hardship, but the question is, how do we define undue hardship? So again, prior to the Supreme Court's decision last year, the standard was defined in such a way that it was quite easy to meet. Undue hardship was defined as more than a de minimis cost. As a result, the standard was easy to meet.

Employers could deny requests just by showing that there was something, some more than de minimis benefit, burden on the business and they could deny the accommodation and it was unlikely that [00:12:00] a claim would be brought or if it was unlikely to be successful. Now in the Supreme Court case, this involved an individual whose religious beliefs provided that he should have off on Sunday.

He HeHeis an evangelical Christian. He believes that Sunday should be devoted to worship and rest. He worked for the U.S. Postal Service as a mail deliverer. I think many of us can remember when mail was not delivered on Sundays. And in this case, as a postal worker, it was not an issue for him because he didn't have to work on Sundays, but the U.S. Postal Service entered into an agreement with Amazon that did require Sunday deliveries. 

He had tried to work out an accommodation. Initially, he was accommodated. There were some changes. Ultimately, he was subject to progressive discipline and left his employment. And, the third circuit had found in favor of the [00:13:00] employer. They found that the postal service met the standard for undue hardship because the special schedule disrupted the workplace and workflow and the other employees were annoyed that he got his Sundays off.

And interestingly, the Supreme court reversed. They found that the standard was too stringent and set too high a bar. So that really changed the landscape for denying an accommodation. It's not sufficient merely to say, well, there's some more than de minimis burden in the workplace. At this point, it's now actually necessary to show that granting the accommodation would result in a substantial increase in costs in relation to the conduct of the business.

So really, we're looking at a standard that's more similar. I'm not going to say it's identical to, but more similar to the standard that we see under the Americans with Disabilities Act. And again, we don't have a lot of case law construing this [00:14:00] case, but I would certainly counsel employers to be cautious here as you don't want to be the next test case in terms of testing the boundaries of what an undue hardship may be under current law.

Jeff Stewart: I agree with that. And, and I think one of the areas that I've certainly advised employers, especially in the last few years, and I'm guessing you have as well, is to have a process in place for any kind of an accommodation request, much like you do with a disability accommodation. I like to have the employee provide, it can just be in an email specifically, what is it you're looking for so that we, number one, know what it is, and then we can have a back and forth conversation and we can document that dialogue to make sure that if we are accommodating, then we've gone, we have a set process. But if [00:15:00] we're not going to accommodate, we can document process we've taken that we didn't just unilaterally dismiss it, but instead we evaluated it.

We engaged in an interactive process with the employee and whatever decision was made was done after a process, not just one person denying out of hand. 

Tanya Salgado: Yeah, absolutely. Again, I think employers ae accustomed, or at least have some familiarity with the addressing disability accommodation requests. I think a lot of employers were caught off guard when COVID hit, and employees were requesting accommodations for religious reasons in large numbers. 

And one of the things that I thought was really helpful was the fact that the EEOC actually published its own religious accommodation request form. In other words, the, the form the EEOC uses as an employer, they don't normally do that, but they felt that under the circumstances it might be helpful.

[00:16:00] So some employers use forms. Other employers prefer to use a more informal dialogue. I don't think it makes a difference which format, the main thing is the information that is requested. So, for example, the EEOC's religious accommodation request form just asks the employee to list their name and position and identify the employer's requirement or policy that conflicts with their sincerely held religious observance, practice, or belief to describe the nature of their sincerely held religious beliefs that conflict with the policy.

And to identify the accommodation that they're seeking, as well as any alternative accommodations that would also eliminate the conflict between the employer's practice and their sincerely held beliefs. So again, you don't have to necessarily use a form as long as this is the information that you're requesting and documenting.

And that again, [00:17:00] as you say, that you have that interactive process. That back-and-forth dialogue in which you're just having this conversation with your employee about what it is that they need in order to enable them to do their job and also comply with their sincere religious practice or belief.

Jeff Stewart: Absolutely. Now, I want to move away from the accommodation issue for a minute, because expecting an increase in the number of charges and ultimately lawsuits is in the area of religious harassment. As most people know, Title VII prohibits discrimination in areas, sex, gender, race, national origin, religion.

Also, for each of those, It also prevents or prohibits harassment based on any of those protected classes. And I'm seeing lots of potential issues here because I don't think supervisors [00:18:00] really know how to handle those issues because I don't think frankly, they've ever been trained in that area. Would you agree with that, Tanya?

Tanya Salgado: Right. Absolutely. I agree that training has tended to focus number one on sex harassment. And in recent years, that's been broadened to include the other protected classes, but harassment based on a person's religion or even just accommodation requests, it just isn't on most supervisors’ radar. 

And if it is on their radar, perhaps it's been informed more by their own personal ideas rather than employer-based training. So, I think that that's certainly an issue and it's a concern. And as employees are becoming more savvy and aware of their rights, I think that there's a real potential here for claims.

Jeff Stewart: I think there's also a great potential for retaliation claims.

Based on religious accommodation [00:19:00] requests. 

Tanya Salgado: Yes, and it's interesting you brought that up because this is actually something that was addressed in the very recently issued EEOC's guidance on hostile work environment. The guidance is very broad. It includes all of the protected classes, but the agency does include a section on religion and it talks about unlawful harassment based on religion, and that can include a variety of types of harassment.

It could include traditional discrimination based on making offensive comments based on a person's religion, but it also can include harassment because of a request for a religious accommodation or receipt of religious accommodation. So, there you have the retaliation, or you could have a situation where coworkers or supervisors are, they're bent out of shape because somebody got what they perceive as special treatment, and they find ways to retaliate or create a hostile work environment. 

So, I think that that's certainly an issue. It's addressed by the [00:20:00] EEOC. And I think it's reasonable to predict that we're going to see an increase in these types of issues in the workplace.

Jeff Stewart: Absolutely. Now, I would be remiss if I didn't bring up the fact that here we are, it is 2024. It is an election year. And a lot of times, people talking politics leads to people talking religion. These are things I was always taught growing up. We don't talk about it, family gatherings and things like that.

Don't bring up politics or religion. Well, I tend to think the same for the workplace, but we all know that those conversations happen. And frankly, sometimes it's hard to separate those. And while there is not protection for political discrimination in the workplace, there is for religious discrimination.

And I think we're going to see some examples of things that start as political speech that dovetail into religion or have religious aspects that [00:21:00] we're going to see claims. Would you agree with that? 

Tanya Salgado: Sure. Absolutely. I think it's fair to say that oftentimes an individual's political position on certain policy matters are necessarily informed by their religious beliefs.

So, what may start out as a conversation on a political issue may really intersect with the employee's religious belief that informs that. And what started out as just back and forth in the workplace can now take on a potential for creating hostility in the workplace related to religion that you wouldn't necessarily have foreseen.

Tensions are running high.

Jeff Stewart: Yes. And you see very much right now, two of the big issues for the 2024 presidential campaign are the future of abortion rights in this country and whether the U.S. should be supporting Israel or taking other [00:22:00] actions in the Middle East in the Israel-Hamas war, both of which are intertwined political and religious issues.

Would you agree? 

Tanya Salgado: Absolutely. Now, to be sure, some people may have views on both topics that don't pertain to their religion. But I think that in many, many cases, individual's views on both of these very timely policy issues are directly related to their religious beliefs. And certainly, there's a tremendous potential for conflict in the workplace arising out of these hot button issues.

Jeff Stewart: Absolutely. And at the end of the day, it's the employer's responsibility to make sure that there is not a hostile work environment for any employee. So, I guess with that in mind, how can employers mitigate the risk? 

Tanya Salgado: Yeah. So, I think you brought up a really important point. Previously, when you talked about the fact that managers just aren't necessarily aware [00:23:00] of the fact that religion is a protected class.

And to that end, I think it's important that when employers are conducting their harassment training, which all employers should be doing that, and it should be done on a regular updated basis, make sure that you include all of the protected classes, including religion. And I think also in light of some of the things that we've been talking about as far as the Middle East, let's be sure to include national origin as well, because again, there's some overlap there.

Jeff Stewart: Definitely. 

Tanya Salgado: But make sure that you include that in your training. And make sure it's in your handbook, and make sure your supervisors understand these issues, not just with respect to harassment, but also what to do if an employee requests an exception, maybe to the dress code, maybe to have an extra day off for a religious holiday.

Make sure that your supervisors are aware to get HR involved to make sure that they handle that appropriately. 

Jeff Stewart: [00:24:00] Absolutely. And I think also, going back to something I said earlier, is, make sure we have an anti-retaliation policy and that your managers know that if somebody brings such a request, an accommodation request, or that they are saying that they're having issues in the workplace, that they are not the being retaliated against.

That's a very important thing. 

Tanya Salgado: And we were talking previously about skepticism, about whether or not a person's belief is sincerely held. That can be part of the training as well, making sure that managers and supervisors refrain from displaying that kind of skepticism about beliefs. And managers and supervisors can set the tone in the workplace.

And we want the tone to be one that's respectful. 

Jeff Stewart: Absolutely. So, Tanya, as we wrap up our discussion, I think, you know, I like to provide our listeners with a couple of key takeaways. So, can you provide a key [00:25:00] takeaway on this area of religious discrimination for our listeners? 

Tanya Salgado: Yeah. So, I would say as we've been discussing throughout religious tensions are really on an increase.

It's a hot button issue. There's just a lot of tension around this topic. It's very likely that this is going to flow over into the workplace. It's just the reality as human beings. We talk about what's going on in the world. So as employers, this is the time to make sure that as you're having your harassment training, or even setting aside your harassment training, maybe set aside some time to meet with your frontline supervisors and make sure that they understand that religion is a protected class, train them on how to deal with issues that may bubble up in the workplace around these types of issues, whether it be conflict in the Middle East, issues on campuses, [00:26:00] or even issues around the political arena.

Make sure that your frontline supervisors are prepared. And again, I've been on your podcast before, and I know that one of the things that you do a great job of making sure our listeners are aware of is that you want to be proactive. You want to be the employer that trains your supervisors so that you're prepared so that an ounce of prevention is worth a pound of cure.

So, I would say get ahead of this, make sure that your managers and supervisors are aware of the issues and have a plan in place in case this, a conflict, does come up in the workplace. 

Jeff Stewart: Absolutely. And I would echo every word that you just said. And the other key takeaway that I guess I would give the listeners is to have a procedure in place.

If somebody does ask for a religious accommodation, whether you're using the EEOC's form, whether you have your own, but you don't want to be scrambling when a request comes in, you want to have a set procedure. [00:27:00] So with that, I want to thank everyone for joining us here today on the Employment Law Counselor Podcast, where we try to make sense of the world of labor and employment law.

On behalf of myself and Tanya Salgado, we thank you for listening. If you enjoyed this episode, please leave us a five-star review, tell your friends, and subscribe to the podcast. For more information on this and many other topics, please visit the White and Williams website at www.whiteandwilliams.com, where you can visit our blog and learn more about the firm.

Until next time, stay safe and stay compliant. 

PLUS Staff: Thank you for listening to this episode of the Employment Law Counselor. If you haven't checked out the previous episodes, make sure to give those a listen and check back in the next few weeks for the newest episode. If you have an idea for a future PLUS podcast, you can visit the PLUS website and complete the Content Idea form.