Dealing effectively with religious discrimination lawsuits, “frequently boils down to communications,” Knueve says. “If an employer communicates openly with employees and provides a reasonable accommodation when viable, often problems can be avoided before they reach the lawsuit stage.”
But, he adds, that is not always possible. So, it is in employers’ best interests to retain competent legal advisers who can help develop plans to forestall religious discrimination lawsuits or take advantage of a growing body of case law to deal with them when they do arise.
Smart Business spoke with Knueve about the developments in religious discrimination laws in recent years and how employers can protect themselves against employee-initiated lawsuits.
Have there been any significant recent developments in religious discrimination law?
Religious discrimination has become a hotter topic since Sept. 11. Federal statutory law hasn’t really changed, but there is more exposure now, and more people know about the religious discrimination laws.
What are the bases for religious discrimination lawsuits?
There are two kinds of theories of relief in cases based on religious discrimination: Disparate treatment discrimination and failure to reasonably accommodate.
The first theory is based upon an allegation that the employer treated the plaintiff differently from other employees because of religion. The second theory, and a more interesting area of development, is an allegation that the employer failed to accommodate the employee’s religious beliefs.
What must the plaintiff do to prove a failure to accommodate?
The plaintiff has to prove three elements.
- There is a sincere religious belief that conflicts with an employment requirement, i.e., the plaintiff must show that there is some belief and there is a conflict.
- The employer is aware of the conflict, typically because the plaintiff informed the employer.
- The employee received some kind of adverse action for failing to comply with the conflicting employment requirement.
Once the plaintiff establishes those three elements, the burden shifts to the employer. The employer must demonstrate that it couldn’t reasonably accommodate the employee without undue hardship. But, in religious discrimination cases, the employer only has to show a de minimis (minimal) cost. And that’s where a lot of the case law has developed in the past eight years.
A message here is that there is a duty to accommodate religious beliefs, but it is not an unlimited duty. The employer has to show only a de minimis cost to demonstrate undue hardship. That is what a lot of employers may not be aware of.
How can business leaders protect themselves and their companies from religious discrimination lawsuits?
There are several things they can do.
- Don’t ask about religion during interviews of applicants, which is prohibited by law.
- Implement a policy that prohibits discrimination based on all kinds of protected categories, including religion. The policy should include a process that allows an employee who has an issue to discuss it with a staff member who can be reasonable about the issue.
- Be consistent. For instance, some employers allow employees to meet in the break room to talk about charity work. But, if a group of employees says, “Hey, during our break time we want to meet in the lunch room to talk about the Bible,” it is difficult for the employer to say no when it is allowing employees to meet in the same room during break times to talk about charitable functions.
- Avoid challenging employees on their religious beliefs.
- Talk to an attorney who is knowledgeable about religious discrimination law to get advice to set up a program to deal with lawsuits preferably before charges are filed.
Can we expect to see more emphasis placed on the application of religious discrimination laws in the future?
We may not see the same high-water mark that we saw right after Sept. 11, but there may be continuing development of the law and a continuing steady flow of claims as the country becomes more and more diverse.
For employers, the key to preventing religious discrimination lawsuits often comes down to open and fair communication with employees.
Mark Knueve is a partner with the law firm of Vorys, Sater, Seymour and Pease LLP. He is based in the Columbus, Ohio office. Reach Knueve at (614) 464-6387 or email@example.com.