What should you do when you receive a claim from the Human Rights Commission or Equal Employment Opportunity Commission? How you respond sets a tone for the charge, and also for defense of possible claims arising after the response. Here are five suggestions that should guide your response:
- Contact your EPLI carrier if you have insurance, and coordinate with counsel. Prompt reporting of a claim is a requirement of all insurance. An agency charge may be the first step to litigation, and input from counsel to investigate, review, and coordinate defense is important.
- Be accurate and inclusive. Conduct a sufficient investigation to verify the information. Also, preserve all pertinent information and documents, and avoid future spoliation issues by suspending document destruction practices.
- Explain how your business works. Details about your organization may help provide context for your actions.
- Recount all that happened completely. Even if the charge includes only an imprecise allegation, a comprehensive response with justification for all decisions is preferable. This includes making all necessary witnesses available, and you must ensure confidentiality and no retaliation during the interview process.
- Provide context for the charge. Outlining your consistent past actions displays that your organization is responsible and treated the current employee the same as others.
“There are three things I have learned never to discuss with people… Religion, Politics, and The Great Pumpkin. ” ― Charles M. Schulz
Creating a policy setting out how to make a request for accommodation is a must. Also, many employers have a sexual harassment policy. However, a better practice is to create a more general anti-harassment policy that covers all protected categories, including religion. Religion can be a unifying force, but it can also cause a great deal of strife. Protecting against strife and discrimination based on religious belief in the workplace is essential.
“Religious liberty might be supposed to mean that everybody is free to discuss religion. In practice it means that hardly anybody is allowed to mention it.” ― G.K. Chesterton
That comment may be a bit extreme, but it has a kernel of truth in the workplace. In light of the upheaval this week over Quran burning and Muslim and Christian tensions, Title VII employers should remember that they must not allow religion to become a workplace issue. Employers spend a lot of time training to guard against race and sex discrimination, but they may not spend enough time monitoring other protected classes. The federal Civil Rights Act prohibits an employer from discriminating against employees on the basis of religion. This can be by harassment, failure to provide reasonable accommodation, or adverse employment action.
Employers cannot hire, fire, discipline, or require different or stricter requirements because of religious beliefs. A hostile environment can occur if there is pervasive, unwelcome conduct motivated by religious belief that results in an intimidating or offensive workplace.
Sometimes an employer must balance the interests of those who wish to proselytize or openly perform a religious act with those who are offended. Employers can accommodate those offended by excusing them from certain work requirements or alternating breaks so that different groups have less interaction. A policy restricting outside information or promotion of outside activities may be warranted but must be evenly enforced as to all outside activities. Thus, if an employer prevents employees from posting literature on a tent revival in the break room, it should be consistent and prohibit school fundraiser brochures and Girl Scout cookies too.