Religious Discrimination

KStater

[font size="1" color="#FF0000"]LAST EDITED ON 09-27-02 AT 02:33PM (CST)[/font][p]I am the one-person HR dept. for a small company (30 employees) in Missouri. My directors think that since our company is funded by public money, we don't have to comply with Title VII. Specifically, they recently told one of our employees that she could not listen to the Christian radio station she was listening to in her office (it's not loud enough for anyone else to hear and to my knowledge no one has been offended by it) and that she had to remove anything with a religious tone from her walls, desk, etc. The reason is that because we are publicly funded, we must be non-religious. The employee was told this in an employee meeting in front of the whole office staff, on a day that I was out at a seminar. I'm told the employee cried, argued and has since been smoldering.
When I went to the directors to tell then about Title VII, I was told that the radio station was a problem not because of the music, but because there are preachers on the station, and that constitutes worship. We can't worship in a publicly-funded building.
I think my directors are confusing the separation of church and state with the employer's obligation to accommodate the employee. When I tried to explain, I was given examples like no prayer in school, no blessing the food at our board meetings, etc. When I read Title VII, I didn't see any exemption for public employers. So I have two questions:
Am I misunderstanding how Title VII works?
If I'm not, how do I explain to the directors that they need to correct this mistake or risk a future claim?
This employee has not come to me to complain, but the rumor mill says she's furious and looking for another job. As I've read on this forum, a disgruntled employee is more likely to sue, so I'd like to resolve what I perceive as a problem for that reason. I also want to be comfortable in my job, and the thought of working for an employer who is discriminatory is giving me the creeps.
Thanks in advance for your help!
P.S. I forgot to mention that this employee has an office to herself, no customer contact and not a lot of traffic into her office other than her supervisors.

Pork

Title VII requires an employer to reasonably accomodate employees' religious beliefs and practices unless doing so would be undue hardship on the employer's business. Public employers have a special consideration that they do not set religion up as a part of the job. It would appear to me that your company leadership have overstepped The Title VII guidelines and may have jumped on a violation of the 1st amendment. Title VII requires an employer to provide a workplace free of religious harassment. If the reading of a bible or koran or a book on athiest activities (or listening to a religios radio station) interferred with the performance of the individuals position or job task then they would be correct to change the practice or behavior of the employee and the workplace. However, consider the position of "receptionist/switchboard operator" who is hired to wait and respond to the public in person or by telephone. If the reading helps to keep the emloyee alert and happy about her position, then I would let the employee do it. On the other hand, if my company's business would be unduly hurt by offending the customer by the display of the Bible, koran, or atheiest materials then I might not accomodate the activity.

HR EXECUTIVE Special Reports TEN COMMANDMENTS FOR AVOIDING RELIGIOUS HARASSMENT & DISCRIMATION CLAIMS is my ready reference. I'm sure Christy Reeder could put you on to a e-mail reference for you to provide something in writing that is appropriate. May you have a blessed day, Pork

Paul in Cannon Beach

Interestingly, I work for a religious non-profit where the concern is not the employee with the Christian radio station but rather the employee with the country western radio station playing! Our response? We don't make a big deal out of it (although the Achy Breaky heart period was difficult..)

In reviewing the HR executive special report Pork mentioned above, the section on public employers (that includes publically funded employers?) the discussion on page 47 regarding the First Amendment seems to address your situation.

On one hand public employers are prohibited from establishing one religion. On the other hand, public employers "may not adopt rules or practices that directly burden an employee's free excercise of religion unless the employer has a compelling interest in doing so."

I could be mistaken but the actions of the employee in question do not seem significant enough to qualify as the establishment of one religion or imposing one faith on others. However, it could be argued that your employer has violated the employee's free "excercise" of religion by banning the Christian radio and removing all religious items from her desk.

All legal aspects aside, I think what the management did was wrong and the way they handled it was mean.

[email]paulknoch@hotmail.com[/email]

KStater

I think you make a good point, Pork. If it makes the employee happy, it doesn't offend anyone else and it doesn't interfere with her job, aren't those the ingredients to reasonable accommodation? I specifically asked if the music/preaching station was keeping the employee from getting her work done/meeting deadlines, etc. and the answer was no. They just don't think she should be listening to it.

KStater

Well, I posted this question on another forum I visited, and their HR gurus suggest that since this employee's religion probably doesn't "require" her to listen to the radio, no violation has occurred. The thing that confuses me is that when I read the excerpts from the employment law newsletters, the common reference seems to be "the employer must engage in an interactive process" and "the employer must provide a reasonable accommodation to religious beliefs and customs." It doesn't seem like that has occurred in this situation. Other employees in this office are allowed to listen to radios in their office without censorship (no one has ever said anything to me about what I listen to). I have college memorabilia around my office, not to the point of distraction, but it's there. Others have picture of the kids/spouses/grandchildren on their desks. It doesn't seem like this issue should be so muddy, but my head is spinning!!!!!

Theresa Gegen TX

[font size="1" color="#FF0000"]LAST EDITED ON 09-27-02 AT 04:45PM (CST)[/font][p]That is interesting, but I don't think the EEOC would agree that no violation has occured. (I have used that argument in court in defending an employer though, and will gladly use it again). They would probably find the workplace to be hostile to her religious beliefs and the EEOC typically DOES NOT require that that act or practice be required by a specific religion. In otherwords, if this person says "it is important to me" that's good enough for the EEOC (note, many courts would reject the EEOC's position, but that hasn't stopped them from taking it).

The better practice is to allow the employee to have the expressions of her religion in her own area if they are not bothering anyone.

Good Luck!!

njjel

It would seem to me that if other employees are permitted to listen to the radio station(s) of their choice, then this employee must be given the same option. If no other radios are played, management may have a point. I have worked in places where no music was permitted at all and also in another place where everyone could listen to whatever they wished. Neither situation was the right answer.

Crout

[font size="1" color="#FF0000"]LAST EDITED ON 09-27-02 AT 04:37PM (CST)[/font][p]I just dealt with this issue, but with a slight twist. We had an EE who would leave his Bible open on his desk, which is in a high traffic area. Staff and clients started to complain, so I asked him to keep his religious material in his briefcase, and take it out to read only on his free time. He put up quite an argument. His points were 1) The religious material was really no different than someone else leaving a newspaper on the desk. 2) We were violating his constitutional rights to worship freely. The obvious contradictions to these points aside, (if his Bible was really like a newspaper, why would it be protected?) in our meeting it became clear that his intent was not to worship, but to convert clients and co-workers, which is unacceptable. In the end he accepted the compromise.

Gillian

I had to reread a couple of times but I don't think that this is a public employer issue. The company is funded by public money which is not necessarily a public sector organization. In my opinion, as long as this employee is off on her own not bothering anyone, and it isn't impacting her work, I think that the radio is fine. I think that management is way off base when they are using the public money issue as the reason for their dislike of what is coming out of the radio. I don't know whether you have a possible legal problem with this or not, but you certainly have an unnecessary one.

Paul in Cannon Beach

I am curious to know if this employee would be allowed to wear a necklace with a cross?

If the employee's behavior (listening to Christian radio, having Christian items on her desk) is a requirement of her sincerely held religious belief and she makes this know to her employere, it could be argued that they would have to accommodate her unless they can show undue hardship under Title VII.

In that scenario, I am not sure that one could argue that it is a requirement of the Christian faith to do those things. Whereas a Muslim might be required to pray three times a day, Christians have no such explicit requirement that I can think of. We are called to be "witnesses" so one could argue that we are to share the gospel. Listening to Christian radio and having Christian items on ones desk seem matters of preference. (Ok, have I offended everyone yet?)

Still, I feel they have singled her out and done so in such a public, intimidating way that they could be accused of harrassment. Why wasn't this conversation private?

Rockie

The way I look at it, if she is not infringing on anyone else's rights, let her play her radio, etc. If it was loud where others could hear it or she was displaying materials out in the open that might be offensive to others, or attempting to "convert" other to her religion, then what's the harm? If she is working in a communal area, where these items might be offensive or noise is a problem, I can see the issues.

Title VII, EEOC, etc. aside, this type of behavior on an employer's part, creates a very tense, adversarial relationship in the workplace and you won't get as much from your employees as you would if you eased up a little.

We have had occasion where people played radios too loud, etc., and we have had to ask them not to play them loud enough to annoy others. If they persist,then we have asked them to take their radios home. This is a different matter. If nohting of this sort exists, let the lady play her radio!

vmiller MO

In adddition to the other comments, Missouri Human Rights Act (Mo. Rev. Stat. 213, et. seq.)prohibits religious discrimination. The act defines an "employer" to be the state or any political or civil subdivision, or any person employing six or more persons within the state. Exempt from the definition is any corporation or association owned and operated by religious or sectarian groups. Thus if your organization has six or more employees and is not owned and operated by a religious or sectarian group, the Act covers your organization.

The regulations of the Missouri Commission on Human Rights (8 CSR 60-3.050) state that an "employer has an obligation to make reasonable accommodations to the religious needs of employees and prospective employees where these accommodations can be made without undue hardships on the conduct of the employer's business."

Generally, the Missouri courts follow the federal interpretations of Title VI when considering the meaning of the MHRA.

As a result, your organization should also consider the impact of the State statute on its position, especially if your organization is "organized under the laws of the State of Missouri."

If your organization concludes that it is a governmental entity, it then should consider the implications of the First Amendment to the Constitution of the U.S. There is a case out of Iowa involving the First Amendment, the State of Iowa, and a state employee who wanted religious artifacts in the employee's office. My recollection is that the State of Iowa lost the case.

On the flip side of this issue is the question of how far an employer has to go to accommodate religious beliefs. Both Title VI and the MHRA require "reasonable accommodation." The Supreme Court (US) has held that "reasonable accommodation" means de minimus action. The Supreme Court held this way in order to avoid a First Amendment problem. What reasonable accommodation means is not necessarily easy to determine and you should consult with your lawyers.

Further, the EEOC has a difficult time dealing with this issue and its positions and guidence are not necessarily in sync with the courts.

Of course, if your organization has less than six employees, it does not legally matter.

Paul in Cannon Beach

Kstater,

Interesting situation. I for one would like to know of any further developments in the situation.

[email]paulknoch@hotmail.com[/email]

Crout

[url]http://laws.findlaw.com/7th/011486.html[/url]



The link above is for the U.S. Court of Appeals (7th Circuit) that highlights a Title VII religious discrimination case. What you may find useful are the examples the court uses to define "resonable accomodation." Among other things, allowing an employee to listen to a religious radio station was seen as a reasonable accomodation. Therefore, to my mind, the reverse MAY be true, and not allowing your employee to listen to a religious radio station may violate his/her rights under Title VII. Just something to ponder.

KStater

WOW!! Thanks to everyone for continuing to respond to this thread and to answer Paul's question, YES, it's still ongoing. The rumor mill is that the employee has taken her radio home, and another employee has done the same in a show of solidarity. Thanks to VMiller and Crout for the reference material; we have copies of the MO revised statutes right here in our office (obviously the directors have not read that particular reference). Also thanks to Pork - I found the Ten Commandments and I'll probably give it to the directors as a reference, IF they'll use it. The problem is, they believe they're right. I think that belief is based on their misunderstanding that "separation of church and state" is the same as how employers treat employees in religious accommodation. If their contention is that we're a public employer, then my understanding from the Ten Commandments is that they're DOUBLY responsible because the First Amendment comes in to play (I haven't EVEN gone there yet). The trick is how to get them to recognize their misunderstanding. The last time I tried to explain Title VII, I was stopped dead in my tracks (because they think they already understand it). I mean the brick wall went up, and one of them seemed to take the whole religion in the workplace issue very personally. I'm waiting for Margaret to join this strand and tell me that telling my supervisors they're wrong might be a "career limiting experience," but I also don't want to be complicit in harassment or discrimination. Add all that to the fact of what Rockie pointed out, the work environment is very tense now. This alleged discrimination took place in a STAFF MEETING in front of EVERYBODY. Other employees have expressed to me that they think it was wrong and unfair, but I'm the only one (to my knowledge) going to the directors with a copy of Title VII in my hand. I'm supposed meet with them again tomorrow ...
I'm hoping to appeal to their desire to do the right thing, because I think it's there. It just seems that they don't understand their obligation.

Paul in Cannon Beach

HR in action... It's a beautiful thing! Good on you for doing the right thing over the easy thing!

Crout

When you say that the directors consider your company to be "publicly funded" what EXACTLY does that mean? Are they suggesting that your company has the same status as a State-run agency? If that's the case then they are flat-out wrong. If your company is a non-profit corporation that does business with state and local governments, then you are most definitely NOT publicly funded in that sense, and their spearation of church and state argument falls right to the ground. If the above description is correct, your company is simply a vendor, selling a service to the government. I'm guessing that your company is an "at will" employer, and can fire people for little or no reason. That would not be the case for a true, "publicly funded" agency, which is duty bound to ensure your constitutional rights, e.g. you could sue if you were fired for exercising your freedom of speech, etc.