My colleague, Gary Starr, returns this morning with a post on a recent case that has implications for employers nationwide.

You wouldn’t think that fingerprinting would be brought into the world of religious accommodations.

After all, the importance of background checks cannot be denied, particularly when the prospective employee is going to work with children or the elderly.

Vulnerable populations need assurance that those with whom they will be dealing have their best interests at heart.

Background checks, however, can raise strange issues for employers when the person asked to authorize a background check indicates that he/she has a religious objection to fingerprinting.

In a recent federal case (download here), a bus driver, who was required to submit to a background check to retain her position, refused to undergo a fingerprint background check.

She explained that it was her sincere religious belief that fingerprinting is the “mark of the devil” and that fingerprinting would bar her entry into heaven.

She asked for an accommodation.

The employer checked with state and federal authorities responsible for doing the background checks, including the FBI, the State Department of Education, and the School District for whom she drove.

They were unable to provide guidance on what alternatives there were under the state law.  As a result, the bus company, faced with a criminal charge and fine if the driver were not tested, terminated the driver.

The fired employee then sued.

The bus company sought to have the case dismissed without having to go through discovery or a trial, but the court rejected this effort.

The court found that the bus driver sufficiently described her sincere religious belief about being barred from Heaven if she were fingerprinted and that an accommodation should have been made, as there was an insufficient basis to establish that the employer would suffer an undue hardship, at least at the initial phase of the litigation.

Further, the court said the employer’s assertion that it lacked the power to grant an exception to the fingerprinting requirements required greater exploration during discovery.

The bus company now must go through discovery before it has another opportunity to have the case thrown out short of a trial.

Connecticut employers face the same potential problem, because Connecticut law does not provide an alternative to fingerprinting.

Recognizing that potential issue, it will be important to look for ways to accommodate applicants and employees who raise religious objections.

Certainly, there are persons who cannot be fingerprinted or whose fingerprints cannot be read.  Employers should seek out accommodations and carefully document the steps they take to explore alternative testing techniques.

They must be able to show that the steps to find an accommodation were reasonable and if an accommodation were not possible, why the situation would create an undue burden.

It would be far better to take the time before firing or rejecting an applicant to explore what is possible than to defend a lawsuit.

For more on Kaite v. Altoona Student Transportation, Inc., click here.

 

last jediYesterday, news came out that Episode 8 (I mean, VIII) of the Star Wars series would be named “The Last Jedi”.

Which reminded me about an article in The New York Times I saw a few weeks ago that I had been meaning to write about.

Turns out there are, according a BBC report cited in the Times (I swear I did not make this number up on my own), 177,000 practitioners of Jediism in Britain.

Wait, I hear you saying. Jediism? What is that? Like a religion? For real?

Well, according an application submitted to the Charity Commission for England and Wales:

Jediism draws on “the mythology of Star Wars,” and centers on a belief in the power of the Force,” according to a Temple document used by the Charity Commission to evaluate the application. It also draws on major world religions like Hinduism and Christianity, and on “the existential phenomenology of Heidegger, Kierkegaard and Buber.”

The application as it turns out, was from a group known as the Temple of the Jedi Order that sought nonprofit or charity status because, it claimed, Jediism was a religion.

The Charity Commission, however, disagreed saying it does not “promote moral or ethical improvement” and thus is not a religion.

That is not the end, however, of the Temple — as noted by a new The New York Times article yesterday as well.  Others, including, those in the United States, are still persisting.

Which led me to thinking — what would happen if an employee here in Connecticut asked for a religious accommodation on the basis of “Jediism”?

Lest you think I’m really stretching, no less than the President of the United States (Obama, that is) made remarks about this phenomenon when commending George Lucas on his Kennedy Center honors.  In that December 6, 2015 speech, he stated:  “He created a mythology so compelling that in a 2001 census, the fourth-largest religion in the United Kingdom was ‘Jedi.'”  

So, it’s out there.  But not in the courts yet. A quick search of court decisions has yet to find a case where Jediism is listed.  So, back to the question: what would the courts do if confronted about it?

Probably laugh.  After all, pledging allegiance to the Flying Spaghetti Monster (FSM) was not enough to survive a motion to dismiss a religious discrimination claim.  The federal court that was confronted with the issue took swift note about the origins of the religion and ruled that it wasn’t enough to satisfy the legal requirements:

This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a “religious exercise” on any other work of fiction. A prisoner could just as easily read the works of Vonnegut or Heinlein and claim it as his holy book, and demand accommodation of Bokononism or the Church of All Worlds. 6 See, Kurt Vonnegut, Cat’s Cradle (Dell Publishing 1988) (1963); Robert A. Heinlein, Stranger in a Strange Land (Putnam Publ’g Grp. 1961). Of course, there are those who contend—and Cavanaugh is probably among them—that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not “religious” simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.

Case closed, right? Well, perhaps, but even the EEOC has recognized that legal protections aren’t just for well established religions like Christianity.  In one Q and A, it notes the broad language of Title VII:

For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

So perhaps someday we’ll see this tried in courts. But for now, please don’t tell my kids its not real.  And someone save seats for me at The Last Jedi when it opens.

The long-awaited EEOC v. Abercrombie & Fitch case was released by the U.S. Supreme Court this morning, reversing the Tenth Circuit’s decision. You can download it here.

For anyone following the case, the decision shouldn’t come as a big surprise.  I’ve talked about the case before here and here.

The main holding of the case is this:

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.
The court is quick to note that some anti-discrimination statutes DO require knowledge, such as the ADA.  But Title VII does not. And in that silence, the court said that it could not interpret the statute to include one.
The opinion, written by Scalia, explains the difference between knowledge and motive:
Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.
The decision is unusually brief — just seven pages, perhaps reflecting the clear-cut nature of the case.
Take note of footnote three too. The case is decided on narrower grounds than is typically laid out in the press:
While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument . It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.
For employers, this decision should not come as much of a surprise.  And for employers, it means remaining aware that accommodating a person’s religious belief doesn’t necessarily require your actual knowledge.  Be understanding in your approach to these issues.
The EEOC’s statement earlier this year on accommodating religious beliefs still holds some sway too.
Some will argue (as they already have this morning) that the decision puts employers in a no-win situation.  I think that overstates it.  Employers should use common sense and discuss the topic if there appears to be an issue with an employer’s existing policy.

In the wake of the United States Supreme Court’s ruling in the Hobby Lobby case, holding that the Religious Freedom Restoration Act provides protection to closely held corporations to refuse, for religious reasons, to provide birth control methods and services to employees under the Affordable Care Act’s contraceptive mandate, the issue of accommodating an employee’s religious beliefs has also been called into question.

In light of that, my colleague Jarad Lucan returns to the blog this morning with this post on reviewing Connecticut’s Fair Employment Practices Act’s (“CFEPA”) religious antidiscrimination provisions.

Let’s start with a “simple” proposition.

Generally speaking, Connecticut’s anti-discrimination laws make it illegal for an employer to discriminate against an employee because of that employee’s religious belief or practice.

While not explicit in the statutory framework, it is also illegal for an employer to refuse to accommodate an employee’s religious belief or practice that may run contrary to an employment requirement, unless such accommodation would cause an undue burden on the operation of the employer’s business.

Sounds simple enough, right?

So what’s the problem? Well for most employers, the problem is determining whether an employee’s religious belief is bona fide. In other words, is the employee’s religious belief “sincerely held?”

Indeed, if a religious belief is not sincerely held, then an employer does not have to provide an accommodation.

For example, an employer may rightfully question the sincerity of an employee’s request to wear a beard as an accommodation from the employer’s grooming policy based on his religious belief, if the employee is a long time employee, has never changed his religion, and has never worn a beard in the past.

While there is no bright line test (there rarely is in employment law) for determining the sincerity of an employee’s religious belief, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance in this area. As a reminder, Connecticut courts often look to federal antidiscrimination decisions and guidance when interpreting the CFEPA.

According to the EEOC, when questioning an employee’s belief, employers should begin with the assumption that any request for accommodation is based on a sincerely held religious belief, even if the employer is unfamiliar with the particular belief or practice.

If the employer has an objective basis to inquire about the employee’s sincerity, the employer may seek additional corroborating information, according to the EEOC. Such additional information does not have to be in a specific form, and it may be a written first-hand explanation without third-party verification. When third-party verification is needed, the third-party does not have to be a religious official or member, but can be another who is aware of that employee’s belief.

Employers are cautioned, however, not to demand unnecessary or excessive evidence to support an employee’s claim that he or she has a sincerely held religious belief.  An employer who improperly demands information may be liable for denying a reasonable accommodation request, and may have its actions challenged as retaliatory or as a pattern of harassment.

After receiving information from the employee, an employer may seek to provide an employee with an accommodation or deny a request for an accommodation based on a determination that the employee’s asserted religious belief is not sincerely held.

Although there are only a handful of court decisions dealing with the issue of sincerity, the following factors, may help determine the sincerity of an employee’s religious belief:

  • Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
  • Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
  • Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

Of course, no factor is dispositive, and as always, an employer should seek additional guidance from a legal professional before making any determination that may lead to a claim of religious discrimination.

Over the past month, after the Supreme Court’s Hobby Lobby decision, much has been made in the press about how it is unprecedented for the court to consider a company’s religious beliefs in making its decisions.

The issue of taking into account a corporation’s religious belief in the workplace has been also catapulted to the center of the discussion regarding consideration of the Employment Non-Discrimination Act (ENDA), a bill which would prohibit discrimination in employment on the basis of sexual orientation on a federal level.

Some are now asking that ENDA, if passed, have an exception for religious organizations.  In response, a number of prominent civil rights groups have withdrawn their support for the bill.

A joint statement issued by several organizations, including the ACLU, said the following:

ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations – including hospitals, nursing homes and universities – a blank check to engage in workplace discrimination against LGBT people. The provision essentially says that anti-LGBT discrimination is different – more acceptable and legitimate – than discrimination against individuals based on their race or sex.

Here’s the thing, rightly or wrongly, the notion of a religious exemption in an employment discrimination law isn’t unprecedented; Connecticut passed one 23 years ago.

And it hasn’t been amended since.

I can now hear from many of you: Wait, what?

Yes, right there in Conn. Gen. Stat. Section 46a-81p is a specific exemption for religious corporations to the prohibition of sexual orientation employment discrimination.

The provisions of sections 4a-60a and 46a-81a to 46a-81o, inclusive, shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.

Now, before you start reading “religious corporation” to include companies like Hobby Lobby, the answer may not be that simple.

For one thing, the sexual orientation anti-discrimination laws don’t define what they are explicitly; elsewhere in state law there is a reference however, to “religious corporations” and societies.  Conn. Gen. Stat. § 33-264a states that: “Three or more persons uniting for public worship may form a corporation or a voluntary association. Such a corporation shall be called a religious corporation and such a voluntary association shall be called a religious society.”

So perhaps including a company like a Hobby Lobby into this definition may not fit.

But what IS meant by “religious corporations” in this particular section on employment law? How do courts define it? Is it just a church or something more, like an organization’s for-profit bookstore? Well, I haven’t located a court case that has confronted the issue head on.

The Connecticut Supreme Court has only cited the statute by off-handed refereces that the legislature made an exemption for “religious organizations.”  But that too is a bit odd, because the word “organizations” isn’t in the statute itself. (See, for example, the court’s use in Patino v. Birken Manufacturing.)

I’ve taken a look at the bill analysis from the Office of Legislative Research from its passage in 1991 and it isn’t all that helpful. It states merely that “the bill exempts religious organizations from these employment provisions but only as to their employment of people to carry out their work.” (There’s that use of “organizations” again.)  An earlier version of the bill had a narrower exemption too, but that was expanded through a bill amendment at the time.

The Connecticut legislature has considered amendments, over time, that would, for example, put the sexual orientation anti-discrimination laws into the more general provisions prohibiting discrimination, but even this year’s Senate Bill 385, which would make that type of change, would keep the language of the “religious corporation” exemption as is.

I suppose that the lack of litigation on the state’s law exempting “religious corporations” from compliance with the anti-discrimination law may be indicative of its general acceptance here in Connecticut or its narrow application. And perhaps a court looking at this will find that for-profit corporations are just inherently different than religious ones and that the use of the language here precludes a broader interpretation.

But I suspect that the lack of discussion of this exemption is also due to the fact that many people are unaware of its existence or the specific language of the exemption either.

Either way, in light of the Hobby Lobby decision from the Supreme Court, perhaps we will see the Connecticut General Assembly revisit this statute. While an exemption for a “religious corporation” may have been a necessary compromise in 1991 at the time of the bill’s original passage, I wonder if legislators believe it should be construed as broadly as some might argue after Hobby Lobby.

After all, if corporations are “people” too, it’s not that far of a leap for someone to argue that they can be “religious corporations” as well.

The U.S. Supreme Court this morning came out with two controversial decisions that will impact employers in Connecticut.

The first one, Harris v. Quinn, dealt with whether non-union public employees could be forced to pay union dues.  The court issued a relatively narrow holding, ruling that “partial” public employees could not be required to do so.  In doing so, it made a distinction with “full-fledged” public employees.

The second one, Burwell v. Hobby Lobby, dealt with whether for-profit employers could be required to provide contraceptive coverage under the Affordable Care Act. The court again issued a (relatively) narrow holding, ruling that closely-held corporations (where more than 50% of stock is held by 5 or fewer individuals) can opt out of the contraceptive coverage for religious reasons.

There is going to be lots of coverage this week on the impact of these decisions generally, but I thought I would touch on a few thoughts for Connecticut employers.

First, employers shouldn’t overread the decisions. While these decisions may lay the groundwork for broader decisions from the court in the future, these decisions aren’t as broad as some reports suggest.

Second, a very interesting issue is developing about whether employers could use this decision to discrimination against employees on things like race, gender or sexual orientation based on their religious beliefs. The majority opinion takes pains to discount that notion:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. … Our decision today provides no such shield. The Government has a compelling interest inproviding an equal opportunity to participate in the workforce without regard to race, and prohibitions on racialdiscrimination are precisely tailored to achieve that critical goal.

Third, the decision also raises the question of the impact on state anti-discrimination laws. For sexual orientation and gender identity claims, “religious corporations” are given a specific exclusion of coverage.  Could a company like Hobby Lobby now be considered a “religious corporation” under state law? Or can it claim some other type of exemption given that Connecticut is already excluding some employers? And what is the impact of this decision on the other types of anti-discrimination laws that Connecticut has set up that are much broader than federal law?

It is this last set of questions that I think is most intriguing and necessitate some further review.

Connecticut law also prohibits discrimination against employees because of theirreligious beliefs too. How will the Hobby Lobby decision impact that aspect as well?

Today’s opinions will no doubt have an impact on employers. The real question that remains to be seen in the upcoming months and years is, “How Much?”

As the temperature starts to dip this week and our thoughts start turning from fall to winter, so starts slow climb up the absenteeism ladder.

Around many workplaces, flu shot clinics are starting to pop up.  Not surprisingly, studies show that flu shots reduce the rate of absenteeism.  (Employees who get vaccinated get sick less — go figure!)

The Connecticut Department of Public Health has a whole website devoted to employers who wish to run a flu clinic. And the CDC has lots of information like the button below.

Learn about Who Needs A Flu Vaccine.
http://www.cdc.gov/flu/protect/whoshouldvax.htm

But can an employer mandate that employees get a flu shot? Around Connecticut, numerous healthcare institutions started instituting mandatory vaccinations for their workers…and the local press made it a big issue.

Lost in that so-called debate, however, was the clear-cut guidance that came out from the Commission on Human Rights and Opportunities.  In an article last December, the CHRO said unequivocally that there was no issue with mandatory flu shots.

Charles Krich, principal attorney for the Connecticut Commission on Human Rights and Opportunities, says this corporate policy [of mandatory flu shots] does not violate constitutional rights. It also does not qualify as discrimination.

“About a hundred years ago, the Supreme Court said the state absolutely has the right to require vaccinations of people to protect the public health,” Krich explained.

Despite the undisputed public health benefits to such a policy, State Senator Joe Markley introduced a bill earlier this year into the Connecticut General Assembly that would ban such mandated vaccinations.  Thankfully, the bill went nowhere. 

Employers should, however, still be mindful of federal laws that mandate some accomodation of an employee’s religious beliefs and may, on a case-by-case basis, consider some flexibility.

Many hospitals have created a system to analyze requests for exceptions to the policy and created an exception as follows:  “Those who cannot receive the flu vaccine, whether for religious or medical reasons, will be required to properly wear a protective surgical mask over their mouth and nose when within 6 feet of any patient and when entering a patient room during the influenza season.”

Employers with unions and collective bargaining agreements should also be mindful that some have argued that mandatory flu shots should be a bargained-for term of employer. Last year, the NLRB ruled that a hospital did not violate the federal labor laws when instituting a mandatory policy over the objections of the nurses’ union.  But that decision relied on a broad “management rights” provision so employers should have their own situation reviewed by their labor counsel.

 

In the retail and hospitality industries, employers sometimes are searching for that special “look” that can help define them.   Abercrombie and Fitch is certainly one of those types of businesses, and you can think to various hotels, nightclubs or retail stores for other examples.

But is it legal?

That’s the subject of an interesting column in Fisher & Phillip’s Hospitality Update, which notes a recently lawsuit by the EEOC against Abercrombie.  The column’s conclusion? Employers have rights…so long as they don’t come up against the rights of an employee, particularly one with religious beliefs.

[C]ertain “immutable” factors…are off limits because they are protected by federal or state law. These are things such as an applicant’s race, sex, ethnic background or national origin, and religion. …In the area of religion things get a little trickier. Many religions require distinctive garb or appearance and it’s certainly not limited to Muslims. Sikhs, Rastafarians, many Jewish groups, and some Pentecostal Christian groups follow similar dress or appearance guidelines. An employer’s obligation is to never give an automatic “no” to a religious-based request, even if the request violates longstanding company policy.

Instead, the employer is obligated to engage in a reasonable accommodation analysis.  In this analysis — in contrast to the one under the ADA — the employer might be obligated to provide some change to a policy to allow for this.

The subject of dress codes and looks has gone through many changes over the last decade or so, as we’ve gone to a more casual dress in many businesses nationwide.  (Indeed, a good recap is provided by the Proactive Employer blog here.)

Suffice to say that employers who are strictly enforcing a “look” or dress code, should consider the implications of doing so and the costs that may be involved.  It’s not as easy as it seems.

 

The Connecticut Supreme Court today ruled (in a decision that will be effective August 2, 2011) that the ministerial exception found under the First Amendment bars certain employment related claims brought against religious institutions.

Ministerial Exception Applies to More Than Churches

The court’s unanimous decision in Dayner v. Archdiocese of Hartford can be downloaded here.

In doing so, the Court explicitly adopts the rule found in the Second Circuit in Rweyemamu v. Cote — a case I discussed back in 2008 here.

That rule requires a court to consider whether: “1) the employment relationship is religious in nature; and 2) if so, whether adjudicating the particular claims and defenses in the case would require the court to intrude into a religious institution’s exclusive right to decide matters pertaining to doctrine or its internal governance or organization. ”

In this case, the court said that the claims must fail. Victory to the religious employer.

For religious institutions in the state, this case is a must read and will clarify the standards that will (or will not) apply to reviewing employment decisions it makes.   The case — which concerns the dismissal of a religious school principal — will have a more wide-ranging impact than you must first think about.

The case applies to ministerial exception to more than simply discrimination-type claims. Rather, the court applied it equally to common-law tort and contract claims as well.

The case has a lot of interesting tidbits – including some buried in footnotes — and I hope to point out a few of them in an upcoming post. Until then, religious institutions in the state have some new required reading.

Ministerial Exception

With Passover and Easter coming up this week, it seems timely to revisit the laws regarding religious discrimination and accommodation.

Fortunately for you (and me), the Employment & Labor Insider just posted a terrific piece on the subject.  Among the issues that the post flagsis the common situation of an employer who tries to decide what is and is not a proper religious belief.  

In fact, when considering a request for a religious accommodation, the employer should make only two judgments: (1) is the belief "religious" in nature, and (2) does it appear to be sincerely held? The employer should not be assessing whether the religious belief is "valid."

Put another way, it is not necessary to get into theological debates when asked for a religious accommodation. This is the case even if the employee’s belief seems "ridiculous" to the employer

Other issues that may come up are how to verify the need for a religious accommodation, "preaching" to co-workers or subordinates, and banning all talk of religion in the workplace.

Back in 2008, I highlighted a then-new publication by the EEOC about religious discrimination in the workplace. It’s still worth a read today because of its "best practices" section.  Among the suggestions:

Among the suggestions:

  • Employers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
  • Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
  • Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.

For all those who celebrate, have a very Happy Easter and a Happy Passover (Chag Sameach).

The "egg" picture is in honor of both holidays which place special significance on it.