Tag Archive | Religion

Protected employment discrimination for BFOQ

I have written recent posts on religious discrimination.  Employment decisions can be based on religion in some circumstances.

First, the restrictions under federal law only apply to employers with fifteen or more employees (state law may have similar protections but require fewer employees).

Second, there may be a BFOQ, a bona fide occupational qualification.  For instance, a Catholic church is not required to consider the application of a Baptist minister to be a priest.  Certain religious belief may also be a qualification when the job involves teaching or presenting doctrine.   For example, a private, religious school may lawfully require that its teachers be members of a particular denomination, and may bar anyone who is not a member from employment.  BFOQs apply when the qualification is reasonably necessary to perform job duties for a position or when necessary to the normal operations of the employer.   A Christian college may lawfully require positions such as president, chaplain, and faculty to be Christians or to make a profession of faith.

This exception also applies to the other protected classes under Title VII, as well as to the protections under the ADEA.  For example, a transportation company may legitimately place an age restriction on a pilot or driver for public safety purposes.  And a “gentlemen’s club” need only hire women for some of its positions because being female is essential to “the job.”

Federal law states:

[I]t shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
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Religious discrimination under Title VII, Part 2

“There are three things I have learned never to discuss with people… Religion, Politics, and The Great Pumpkin. ” ― Charles M. Schulz

Employers are not required to know all tenets of different belief systems, thus employees must put them on notice to request accommodation.  But a “religious belief” does not require a recognized church or denomination.  An employee need only give adequate information to an employer to invoke protection.  Religious observance is not limited to prayer or worship; it can include dietary choices or declining to work on particular days or in certain ways.  If requests are made for secular reasons, though, an employer can refuse the request.  But employers must be careful about questioning beliefs.  The law requires that the belief must be sincerely held.  EEOC guidance provides that when the employee acts inconsistently with the belief, when the request appears made for secular reasons, when the timing of a request is suspicious, or when a religious request follows the denial of a secular request, then the sincerity of a belief may be questioned.

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 discrimination under Title VII

“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.