Category Archives: Religious Discrimination

Office Holiday Parties: Avoid Adding Your Company to the Naughty List

Harvey Weinstein, Kevin Spacey, Michael Oreskes, Brett Ratner, Louis C.K., Charlie Rose, and Matt Lauer are a few well-known names that have already appeared on the naughty list for 2017. Although the Mad Men days of the sexy secretary sitting on Santa’s lap (the boss’s lap) with his arms wrapped around her while both are drinking a dry martini SHOULD be a vestige of the past, there are those that believe that “keep your hands to yourself” does not apply to them.  And, there are those that understand the “hands-off” rule, yet when under the influence of alcohol, find their inhibitions on the copy room floor.

This year, with stories of sexual harassment and abuse dominating the news, it is more important than ever for employers to consider the potential risks associated with any planned celebration. Employers should keep in mind that office policies that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior, from simple innuendos to unwelcome touching that could lead to claims of sexual harassment. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment. These issues can include claims due to on-the-job injuries (workers compensation), unpaid wages for attending the party (the Fair Labor Standards Act), or other types of workplace harassment or discrimination (e.g. religion).

As you prepare for your office party, consider whether alcohol should be available, as most issues arise due to someone bending the elbow a bit too much. If you do decide to provide spirits make sure you have someone (a designated responsible adult) that is watching to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If its voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class.  Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule. You do not want your CEO or VP added to the naughty list.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The Mark of the Beast and Religious Accommodation in the Workplace

This week, the United States Supreme Court refused to grant certiorari to hear a religious accommodation case from the Fourth Circuit Court of Appeal, affirming a jury award for a long-term employee that retired because he believed that his employer’s requirement that he use a hand-scanner to clock into work would brand him with the “Mark of the Beast” (as referenced in the Book of Revelation in the Bible). Read the full opinion.

This case began back in 2012 in West Virginia. Plaintiff, an evangelical Christian, requested that he be allowed to use paper timesheets instead of the hand-scanning time clock that his employer was implementing. His request was denied. His employer asserted that he could use his left hand instead of his right hand in the scanner, as the Mark of the Beast is associated with the right hand and forehead. The employee was given an ultimatum, use the hand-scanner or be terminated. He chose to retire. Subsequent to his retirement, he learned that the company accommodated two employees with hand injuries, who could not be scanned, by installing a key pad and providing codes to the employees to enter into the key pad. With this knowledge, the employee sought the assistance of the EEOC, which filed suit on his behalf.

Shortly thereafter, I co-authored an article that discussed not only the facts of the suit, but also the framework under which religious accommodation claims are allowed to proceed. The framework for evaluation of religious accommodations has not changed since the article. Read the full article from The Florida Bar Journal.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

A Religious Accommodation Decision that Makes Sense

The best line I have read in a religious accommodation case in the last two years is from a decision out of the United States District Court for the Southern District of Indiana New Albany Division earlier this month: “Title VII is not a license for employees to perform only those duties that meet their private approval.” When I read this, I wanted to pump my arm in the air like Judd Nelson’s character at the end of The Breakfast Club. In all seriousness, employers are now tip-toeing around the workplace, in part, as a result of the proliferation of reasonable accommodation cases and the often absurd outcomes that result from the legal decisions. For instance, in the Supreme Court’s 2015 Abercrombie decision, the Court said that even if the employee did not request an accommodation, the employer is required to know that an accommodation is necessary. True, that in the context of the facts of Abercrombie, the decision made some sense (the plaintiff in that case wore a hijab to the interview), but its application to other factual scenarios can border on the absurd and is tantamount to a “mind reading” requirement.

I do digress. Back to the recent decision. The S.D. of Indiana’s decision rejecting a religious accommodation claim made by a former employee terminated for insubordination when she refused to perform essential functions of her job finally added some degree of common sense to the avalanche of religious accommodation cases. In its decision, the S.D. of Indiana found that in order to meet her initial burden of proof, the former employee had to prove that a sincerely held religious belief conflicted with her duties. The case before the court involved a former employee that was terminated from her position as a deputy clerk when she refused to process forms allowing same-sex couples to marry. The court found that the duties of the deputy clerk position were ministerial duties consisting of certifying that the information on the application is accurate and that, under state law, the applicants are qualified to marry. The court found that although the former employee had a sincerely held religious belief, the purely administrative duties relating to the processing of marriage licenses did not conflict with her religious beliefs, as the processing of the forms was not forcing her to make a showing of religious or moral approval of the marriage. The court pointed out that she was not being forced to attend ceremonies, say congratulations, offer a blessing, or pray with the couples. The court opined that the employee’s subjective perception of a conflict between her beliefs and her duties “is not, in and of itself, conclusive.” The court went on to opine that to allow the employee’s subjective perception to dictate whether there is a conflict would result in the requirement having no meaning at all. Let’s call this a win for the Gipper (at least for now).

If you would like to learn more about religious accommodation in the workplace, you can read about it here.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558