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Investigating Pregnancy-Related Discrimination Complaints by Seena Foster

Friday, November 2nd, 2018

This is an informational paper to assist equal opportunity professionals, and human resource professionals, better understand the differences in disability-based and gender-based discrimination complaints. Given the length of the paper, you may find it useful to download and save in your resource library.

TABLE OF CONTENTS:

An overview

I. Federal laws and pregnancy

A. Disability-related laws

1. In federally-assisted programs and in the workplace

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

B. Gender-related laws

1. In federally-assisted programs

2. In the workplace

II. When to apply disability laws

A. In federally-assisted programs

B. In the workplace

III. When to apply gender laws

A. In federally-assisted programs

B. In the workplace

IV. About Seena Foster

________________________________________________________________

An overview

As the HR/EEO professional for your organization, you receive a complaint from an employee alleging that she was denied access to a workplace training program because she took sick leave, and requested leave under the Family Medical Leave Act (FMLA), for pregnancy-related complications. Or, she was denied access to the training program because her supervisor overheard her say she wanted to “start a family soon.”

Or, you serve as the EO professional for an organization operating federally-assisted programs and activities, and a woman files a discrimination complaint alleging that her application to enroll in an educational program was wrongfully denied because she has medical complications from her pregnancy. Or, she alleges her enrollment application was denied because she’s been pregnant twice over the past three years.

How do you investigate these complaints? Depending on the circumstances giving rise to the adverse action at issue, you’ll investigate the complaint as either a disability-based discrimination complaint, or as a gender-based complaint. How you decide this will, in turn, dictate the information you gather and the remedies (if any) you offer.

This paper is designed to help you understand how to identify the type of complaint you have, and what information you’ll need to gather during the investigation.

I. Federal laws and pregnancy

A. Disability-related rights laws

1. In federally-assisted programs and in the workplace

When we talk about disability-related civil rights laws, we are referring to the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 (ADA), and the Americans With Disabilities Act Amendments Act of 2008 (ADAAA). Importantly, these laws apply both to workplace discrimination complaints as well as to discrimination complaints arising in federally-assisted programs and activities.

Generally speaking, under these laws, “disability” is defined as a mental or physical condition that “substantially limits” one or more major life activities. Disabilities that are both (1) minor, and (2) transient or temporary (such as having a cold), do not meet the definition of “disability” for purposes of the Rehabilitation Act, ADA, and ADAAA.

2. Additional considerations in the workplace: The FMLA and an employer’s leave policies

In addition to the Rehabilitation Act, and the ADA, the Family and Medical Leave Act applies to the workplace. Often, this law is mistakenly thought of as a civil rights law. The FMLA is not a civil rights law, but it was enacted in response to civil rights concerns in the workplace.

Generally speaking, the FMLA provides that, for certain family or medical reasons, an employee of at least one years’ duration may take up to 12 weeks of unpaid, job-protected leave in a 12 month period. These reasons include birth and care of a newborn child, absence due to pregnancy complications, adopting a child or becoming a foster care parent, caring for an immediate family member with a serious health condition, or taking medical leave due to the employee’s inability to work because of a serious health condition.

As noted by the United States Supreme Court in Coleman v. Court of Appeals of Maryland (Mar. 20, 2012):

In enacting the FMLA, Congress relied on evidence of a well-documented pattern of sex-based discrimination in family-leave policies that granted longer periods of leave to women than to men.

Therefore, the FMLA is designed to provide a consistent set of unpaid leave policies to be applied to employees across the board, regardless of gender.

And, the Equal Economic Opportunities Commission offers the following guidance:

An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.

Turning to your organization’s leave policies and procedures, it is important to understand these policies are in place for a reason.

As we see from the history behind Congress’ enactments of the FMLA and the PDA, employers must establish leave policies and procedures (sick, annual, FMLA, and so on) that apply to employees across the board, and managers and supervisors must be consistent in their application of these policies and procedures. So, while these policies are not civil rights laws, deviation from established policies and procedures, or discriminatory policies and procedures established by the employer, renders an organization vulnerable to civil rights discrimination complaints on any covered basis (race, color, national origin, gender, religion, disability, age).

B. Gender-related laws

Sometimes, a pregnancy-related discrimination complaint does not involve disabling physical complications or medical restrictions related to the pregnancy. These complaints would be investigated as gender-based discrimination complaints. Why?

The answer is only women are capable of pregnancy and childbirth. So, let’s take a look at the gender-based civil rights laws that may apply to the complaint filed with you.

1. In federally-assisted programs and activities

There are a number of federal laws that prohibit gender-based discrimination in the delivery of federally-assisted aid, training, benefits, and services. As an example, Section 188 of the Workforce Investment Act prohibits discrimination on the basis of gender in federally-assisted operations, such as job referral activities at our Nation’s job banks, delivery of unemployment insurance benefits, and selection of individuals for training, apprenticeship, and certification programs.

As another example, Title IX of the Education Amendments Act (Title IX) prohibits gender-based discrimination in educational programs and activities, regardless of which federal agency provides the funding. And, the U.S. Department of Education (Education) provides excellent guidance for handling pregnancy-related discrimination issues under Title IX. Notably, unless a complaint alleges discrimination based on disabling medical or physical complications, a pregnancy-related discrimination complaint is a complaint alleging discrimination on the basis of gender. Education’s guidance states the following:

[T]he Title IX regulation at 34 C.F.R. § 106.40(a) prohibits recipients from applying ‘any rule concerning a student’s actual or potential parental, family or marital status which treats students differently on the basis of sex.’ The regulation also states, in part, the following:

A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient. 34 C.F.R. § 106.40(b)(l).
In addition, the Title IX regulation states that, in providing financial assistance to any of its students, a recipient shall not ‘apply any rule or assist in application of any rule concerning eligibility for such assistance which treats persons of one sex differently from persons of the other sex with regard to marital or parental status.’ (See 34 C.F.R. § 106.37(a)(3)).

This differs from Education’s disability-related guidance:

Although pregnant students may be required to obtain a physician’s certification of fitness to continue in the regular education program or activity, a recipient may do so only if it requires such a certification from all students for other physical or emotional conditions requiring the attention of a physician. (See 34 C.F.R. § 106.40(b)(2)). In fact, the Title IX regulation instructs recipients to treat pregnancy or childbirth in the same manner and under the same policies as any temporary disability. (See 34 C.F.R. § 106.40(b)(4)).

This is consistent with how pregnancy-related complaints should be approached in other federally-assisted programs and activities. So, unless the complaint alleges discrimination based on disabling medical complications or restrictions, the pregnancy-related complaint is investigated as alleged gender-based discrimination.

2. In the workplace

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits gender-based discrimination. However, confusion arose regarding how to process pregnancy-related complaints. As a result, Congress sought to clarify that pregnancy-related discrimination complaints in the workplace generally are investigated as alleging discrimination on the basis of gender. To that end, the Pregnancy Discrimination Act (PDA) amended Title VII of the Civil Rights Act to include pregnancy-related complaints under the penumbra of gender-based discrimination.

As noted by the United States Supreme Court in California Federal Savings and Loan Assoc. v. Guerra, 479 U.S. 272, 107 S. Ct. 683, 692 (1987), leading up to enactment of the PDA, “Congress had before it extensive evidence of discrimination against pregnancy,” particularly in the administration of leave policies and procedures by employers. To see the text of the PDA, to go 42 U.S.C. § 2000e.

II. When to apply disability laws

A. In federally-assisted programs and activities

Jane seeks to participate in an on-the-job training program funded by the U.S. Department of Labor. The program begins in 30 days and requires that participants be able to bend, lift, and stand for most of an eight hour day, five days a week. Jane wants to participate in the program, but provides medical documentation from her physician stating, for the next three months, she will be unable to stand for more than ten minutes, and will be unable to bend or lift anything at all. Her application to participate in the program is denied because her pregnancy-related complications prevent her from being able to start the program in 30 days. She files a complaint with you.

You will process Jane’s complaint as a disability-based discrimination complaint. Here, Jane is unable to bend or lift anything for the next three months, and can stand for only ten minutes at a time, due to her pregnancy. She has a “disability” in that her condition “substantially limits” the major life activities of bending, lifting, and standing. To that end, you will determine whether Jane meets the essential eligibility requirements to participate in the program, and whether any accommodations may be offered to Jane to allow her to participate. With regard to accommodations, you would look at the accommodations available for similarly-situated program applicants with temporary disabilities (such as a broken foot, or temporary back condition). The questions you will ask during your investigation would include:

● What are the essential eligibility requirements for participation in the program?

● Assuming, for purposes of this exercise, you find that the essential eligibility requirements include starting the program in 30 days and being able to lift, bend, and stand, you’ll need to ask, “Was Jane treated differently than anyone else (man or woman) with similar temporary limitations, such as a broken leg or the flu, seeking to participate in the training program?”

For questions in a particular complaint involving allegations of pregnancy-related discrimination, you should check with your EO leadership, or with the civil rights office of your federal funding agency for guidance.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of actual or perceived physical limitations or restrictions leading to the view that the person is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an applicant’s training or apprenticeship opportunities because you believe these positions could result in a miscarriage)

Focus on the essential eligibility requirements for the program or activity at issue, and ensure that the applicant/participant is not denied access to these programs if she meets the essential eligibility requirements. Look for accommodations that may be provided to allow participation where the applicant/participant has a temporary disability.

B. In the workplace

In the workplace, figuring out the proper way to investigate discrimination complaints often is complicated by allegations that leave requests (such as sick leave or FMLA leave) were improperly denied, or that these requests adversely affected an employment decision related to the employee. So, let’s sort out these issues in the context of pregnancy-related complaints.

The U.S. Equal Employment Opportunities Commission (EEOC) provides the following guidance:

If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

We’ll illustrate this point with Joan. Joan suffers from “morning sickness,” and has asked for permission to take sick leave or FMLA leave on days she feels particularly bad. Her supervisor denies both of her requests, and she files a complaint with you.

Joan has asked for sick leave or FMLA leave, and she has let you know she suffers from “morning sickness,” you will investigate this as a disabiity-based discrimination complaint. You will look at the policies and procedures pertaining to employees’ requests for the types of leave at issue here, sick and FMLA. You will ask how those policies and procedures have been applied to other employees with temporary disabilities, and whether Joan is being treated differently from any other employee in your organization, male or female, with similar temporary or transient limitations.

Let’s say that Joan directs your attention to one of her co-workers, Jane who requested, and received approval for, sick leave and FMLA leave when she broke her arm last year. Here, you are looking to see whether Joan and Jane, and any other similarly-situated co-workers with transient or temporary limitations, were treated differently with regard to consideration of their leave requests.

Determinations as to whether folks are “similarly-situated” are made on a case-by-case basis; there are no “bright line” rules. In making such determinations, you want to ensure that your leave policies and procedures are not discriminatory either in favor of, or against, pregnancy-related limitations, and that these policies and procedures are being applied consistently to all employees.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under disability-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of actual or perceived physical limitations or restrictions leading to the view that the employee is disabled because of a previous, current, or potential pregnancy?

    Some examples.

Under the disability-related civil rights laws, “disability” is defined as a condition that “substantially limits and major life activity,” and there is no requirement that an impairment last a particular length of time to be considered substantially limiting (i.e. temporary disabilities may be covered). Think twice before you engage in an adverse employment action because the employee:

● develops a disabling condition as the result of pregnancy or childbirth (such as preeclampsia requiring bed rest)
● has a record of a pregnancy-related or childbirth-related disability (such as developing gestational diabetes during a prior pregnancy)
● is regarded as having a disabling condition (such as limiting an employee’s promotion opportunity because you believe the duties required in the position could result in a miscarriage)

Focus on the bona fide occupational requirements, and the essential job duties, and allow the employee to participate if she meets these requirements. Look for accommodations where the employee has a temporary disability due to childbirth or pregnancy, as you would for someone with a broken foot or the like.

III. When to apply gender-based laws

A. In federally-assisted programs and activities

Denial of a service, aid, benefit, or training on the basis of prior pregnancies is a violation of federal civil rights laws. For example, the case of Pegues et al. v. Mississippi State Employment Service et al., 699 F.2d 760 (5th Cir. 1983) involved denial of an employment referral in a federally-assisted workforce development program. The Mississippi State Employment Service (MSES) reviewed applications of individuals who sought employment referrals to available, higher paying jobs at a local factory. One of the female applicants (Plaintiff) alleged disparate treatment in MSES’ classification, and referral, of her and other women to lower paying positions at the local factory as compared to similarly qualified male applicants.

The court stated, to demonstrate disparate treatment in employment referral, the Plaintiff must prove: (1) she is a member of a protected group; (2) she applied for an occupation for which MSES was making referrals; (3) she failed to secure a referral; and (4) MSES later referred a non-member of the protected group.

On examination of the evidence of record, the court found: (1) the Plaintiff was a member of a protected group (women), (2) she applied for a higher paying position with the local factory, (3) her application was denied, and, (4) based on her education and experience, she “was passed over in favor of other, similarly qualified (male) applicants.” Id. at 775. The court then noted:

By way of rebuttal, Defendants elicited testimony from (Plaintiff) as to her five full term pregnancies between 1970 and 1975, and various benefits in the form of training and referral that Defendants had conferred upon her between 1968 and 1970.
Id. at 775 (emphasis added). The court rejected Defendants’ proffer of rebuttal:
Given her factory experience and enhanced education, we do not believe the reasons articulated constitute a legitimate rationale for Defendants’ failure to reconsider her service classification and provide an opportunity for employment at Travenol. She is entitled to relief.

Id. at 775. The court concluded that Plaintiff successfully established gender-based discrimination.

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege denial of a federally-assisted service, aid, benefit, or training because of the views of the agency, organization, or company involved regarding prior, current, or potential pregnancies?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to gender-based discrimination in the delivery of federally-assisted programs and activities. Think twice if you seek to deny services, aid, training or benefits because the applicant/participant:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other applicants/participants with similar temporary limitations)

B. In the workplace

An example of gender-based discrimination in the workplace is found in International Union, et al v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196 (1991). Here, the employer had a policy that excluded women of “childbearing capacity” from holding certain “lead-exposed jobs.” Specifically at issue were certain jobs making batteries. Among the class action plaintiffs were (1) a woman “who had chosen to be sterilized in order to avoid losing her job,” and (2) a woman “who had suffered loss in compensation when she was transferred out of her job where she was exposed to lead.”

Concluding that the employer’s policy was “facially discriminatory” in violation of Title VII’s ban on gender-based discrimination, the Court noted the policy improperly “requires only a female employee to produce proof that she is not capable of reproducing.” As a result, the Court noted that the burden shifted to the employer to demonstrate that this discriminatory requirement constituted a bona fide occupational qualification (BFOQ), which the Court found was not present in the case.

Citing to the PDA, the Court stated, “Unless pregnant employees differ from others in their ability to work, they must be treated the same as other employees for all employment-related purposes.” Said differently, women who are as capable of doing their jobs as their male counterparts may not be forced “to choose between having a child and having a job.” Based on the record before it, the Supreme Court in Johnson Controls found that “[f]ertile women . . . participate in the manufacture of batteries as efficiently as anyone else” such that the employer’s policy violated Title VII’s ban on sex discrimination.

The Court made a point of stating that sex discrimination in the workplace has been allowed only under very narrow circumstances, such as definitive danger to others. The Court stressed, under these circumstances, “the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job.”

    The “safety exception” explained.

The Johnson Controls Court cited its prior opinion in Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977) to illustrate the “safety exception” to gender-based discrimination. In Dothard, it was the employer’s policy to hire only male guards at a maximum-security male penitentiary. The Court held this was permissible as “employment of a female guard would create real risks of safety to others if violence broke out because the guard was a woman.” Under the facts of that case, the Court found that “sex was related to the guard’s ability to do the job-maintaining prison security.” In Johnson Controls, the Court emphasized, “in order to qualify as a BFOQ, a job qualification must relate to the ‘essence’ . . . or to the ‘central mission of the employer’s business.’”

    Tell-tale signs.

So, when reviewing a pregnancy-related discrimination complaint under gender-based nondiscrimination laws, ask yourself: Does this complaint allege an adverse employment action because of the views of the supervisor, agency, organization, or company regarding prior, current, or potential pregnancies, and the “safety exception” does not apply?

    Some examples.

The following list contains pregnancy-related examples of views that may lead to based discrimination in the workplace in violation of Title VII. Think twice if you seek to engage in an adverse employment action because the employee:

● expresses an intention to become pregnant
● is undergoing fertility treatment
● is pregnant
● has been pregnant in the past
● is taking pregnancy or parental leave
● may become pregnant in the future
● uses contraception
● is lactating or breastfeeding
● develops a non-disabling medical condition related to pregnancy or childbirth
● has an abortion
● requests light duty work, modified tasks, or alternative assignments on a temporary basis (if available to other employees with similar temporary limitations)

IV. About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development and educational programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her Web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews.

Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.”

And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster’s series of on-demand webcasts for equal opportunity professionals has received rave reviews, and she offers training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws.

Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “very relevant,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.” Ms. Foster is certified in “Federal Workplace Mediation” through the Northern Virginia Mediation Service.

She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.

NOTICE: This paper is for informational purposes only. We do not offer legal advice. Specific questions should be directed to your legal counsel, or to the civil rights experts within your organization, agency, or company.

On-Demand Civil Rights Webcasts Available: Delivering Public-Facing Programs and Activities in Compliance with Federal Law

Thursday, June 28th, 2018

Delivered by Civil Rights Expert and Author Seena Foster

In 2017, State and local government officials are applauding the webcasts, stating they are “outstanding,” “very informative,” and “extremely useful.” Each webcast is only $29.00.

Available Selection

Compliance with Title VI of the Civil Rights Act: An Overview

Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview

Discrimination Complaint Investigations under the Workforce Innovation and Opportunity Act:  Proper Process and Technique

State and local government officials responsible for the delivery of, or monitoring the delivery of, services, aid, training, or benefits to the public must comply with Federal civil rights laws. These laws also apply to service providers, on-the-job trainers, contractors, and partners that assist in delivering public-facing programs and activities. Our webcasts provide practical training for new and experienced professionals working in the area of equal opportunity.

Because the webcasts are on-demand and certificate-based, they provide a convenient and inexpensive way to acquire and document training of staff, contractors, service providers, and partners.

How to register:
To register, simply click on the “Webcast Registration” icon on the left side of this blog. Or, go to https://engage.vevent.com/rt/titleviconsulting.

Cost-effective.  Only $29.00 each. No travel costs.  No lost time from work. These webcasts are absolutely the best value for your dollar!

Content-rich.  Each webcast is packed with useful information, guidance, and helpful tips. Each participant receives a copy of the detailed PowerPoint presentation for the webcast, which may be used as a checklist going forward.

Certificate-based.  Within three to five weeks, each participant who registers and attends the webcast will receive a personalized, signed “Certificate of Completion” to document the training.  

Title: Compliance with Title VI of the Civil Rights Act: An Overview
Description:
This popular webcast provides an informative overview of how to comply with the nondiscrimination mandates of Title VI of the Civil Rights Act of 1964. Title VI applies to the administration, oversight, and delivery process of all state and local programs and activities that are federally-assisted. In this webcast, we’ll focus on the scope and meaning of Title VI of the Civil Rights Act, and we will touch on a variety of compliance-related issues, including environmental justice, serving limited English proficient populations, contracting and procurement, discrimination complaints, harassment and hostile environment, training, monitoring, and data collection. Participants will understand the meaning of race, color, and national origin-based discrimination through Ms. Foster’s use of a variety of easy-to-understand examples. And, participants will learn about surprising federal enforcement policies to include certain types of religious-based discrimination as prohibited under Title VI. A detailed PowerPoint is available for download to viewers of this webcast.

Title: Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview
Description: 
This webcast provides a wealth of information, guidance, and tips to help you ensure compliance with the nondiscrimination and equal opportunity provisions of Section 188 of the Workforce Innovation and Opportunity Act (WIOA), and related Federal civil rights laws that apply to the administration, oversight, and delivery process for WIOA Title I-financially assisted programs and activities. In this webcast, we’ll cover a broad range of compliance issues, including taglines, assurances, Equal Opportunity officers (their selection and duties, and the recipients’ obligations in support of EO officers), serving persons with disabilities, serving LEP populations, differences between program complaints and discrimination complaints, harassment and hostile environment, and data collection, including requirements for the discrimination complaint log and storage of medical information. A detailed PowerPoint, updated after promulgation of the final version of the WIOA regulations at 29 C.F.R. Part 38, is available for download to viewers of the webcast.

Title: Discrimination Complaint Investigations under the Workforce Investment Act:  Proper Process and Technique
Description:
This webcast covers the discrimination complaint investigation process from start to finish, including determining jurisdiction, developing a complaint investigation plan, framing the issue of an investigation, developing interrogatories, preparing a letter of acceptance, gathering and analyzing information, interviewing the parties and witnesses, and writing the notice of final action.  Each participant of this webcast will receive a set of templates that they may customize and use for their investigations, including a jurisdiction checklist, sample complaint investigation plans, sample notices rejecting a complaint, a sample letter of acceptance, and a sample notice of final action. Complaint investigation templates and a detailed PowerPoint are available for download to viewers of the webcast. Complaint processing templates and a detailed PowerPoint are available for download to viewers of the webcast.

About Seena Foster
Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting in Alexandria, Virginia, provides expertise and guidance in the areas of compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one-hour on-demand webcasts, full-day and half-day in-person training sessions, discrimination complaint investigation assistance, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Federal non-discrimination laws are complex, and they affect our workplaces as well as the delivery of our Federally-funded programs and activities. Her book, Civil Rights Investigations under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.

Her background includes 24 years as Senior Legal Advisor to the U.S. Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.

In 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by CRC Director Annabelle Lockhart, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act.

In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

Ms. Foster is a graduate of the George Washington University Law School, and she carries certification in federal workplace mediation from the Northern Virginia Mediation Service as well as mediation certification from the Defense Equal Opportunity Management Institute (DEOMI). Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association. You may contact her at seena@titleviconsulting.com.

EEOC’s Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities (March 6, 2014)

Tuesday, March 11th, 2014

This fact sheet provides basic information about how federal employment discrimination law applies to religious dress and grooming practices. A full-length question-and-answer guide is available at http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

In most instances, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices. Examples of religious dress and grooming practices may include: wearing religious clothing or articles (e.g., a Christian cross, a Muslim hijab (headscarf), a Sikh turban, a Sikh kirpan (symbolic miniature sword)); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of wearing modest clothing, and of not wearing pants or short skirts); or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

Title VII prohibits disparate treatment based on religious belief or practice, or lack thereof. With the exception of employers that are religious organizations as defined under Title VII, an employer must not exclude someone from a job based on discriminatory religious preferences, whether its own or those of customers, clients, or co-workers. Title VII also prohibits discrimination against people because they have no religious beliefs. Customer preference is not a defense to a claim of discrimination.

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or assumed customer preference.

Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.

Requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.

An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship.

When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
Neither co-worker disgruntlement nor customer preference constitutes undue hardship.

It is advisable in all instances for employers to make a case-by-case determination of any requested religious exceptions, and to train managers accordingly.

Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.

Title VII prohibits workplace harassment based on religion, which may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment, or for example, when an employee is subjected to unwelcome remarks or conduct based on religion.
To locate the EEOC office in your area regarding questions or to file a charge of discrimination within applicable time deadlines, call toll free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information. Federal sector applicants and employees should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling. For more details, see “How to File a Charge of Employment Discrimination,” http://www.eeoc.gov/employees/charge.cfm.

In addition to Title VII’s prohibitions on religious, race, color, national origin, and sex discrimination, the EEOC enforces federal statutes that prohibit employment discrimination based on age, disability, or genetic information of applicants or employees. You may contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or with more specialized questions, by calling 1-800-669-4000 (TTY 1-800-669-6820), or sending written inquiries to: Equal Employment Opportunity Commission, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.

EEOC Issues New Publications on Religious Garb and Grooming in the Workplace Practical Guides Will Assist Employers and Employees (March 6, 2014)

Tuesday, March 11th, 2014

This publication by the U.S. Equal Employment Opportunity Commission (EEOC) answers questions about how federal employment discrimination law applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area.

Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

In most instances, employers are required by federal law to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices.

1. What is the federal law relating to religious dress and grooming in the workplace?

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended (“Title VII”),prohibits employers with at least 15 employees (including private sector, state, and local government employers), as well as employment agencies, unions, and federal government agencies, from discriminating in employment based on race, color, religion, sex, or national origin. It also prohibits retaliation against persons who complain of discrimination or participate in an EEO investigation. With respect to religion, Title VII prohibits among other things:

disparate treatment based on religion in recruitment, hiring, promotion, benefits, training, job duties, termination, or any other aspect of employment (except that “religious organizations” as defined under Title VII are permitted to prefer members of their own religion in deciding whom to employ);
denial of reasonable accommodation for sincerely held religious practices, unless the accommodation would cause an undue hardship for the employer;
workplace or job segregation based on religion;
workplace harassment based on religion;
retaliation for requesting an accommodation (whether or not granted), for filing a discrimination charge with the EEOC, for testifying, assisting, or participating in any manner in an EEOC investigation or EEO proceeding, or for opposing discrimination.

There may be state or local laws in your jurisdiction that have protections that are parallel to or broader than those in Title VII.

2. Does Title VII apply to all aspects of religious practice or belief?

Yes. Title VII protects all aspects of religious observance, practice, and belief, and defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, 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 may seem illogical or unreasonable to others.

Religious practices may be based on theistic beliefs or non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views. Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Moreover, an employee’s belief or practice can be “religious” under Title VII even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.

The law’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. For example, an employer that is not a religious organization (as legally defined under Title VII) cannot make employees wear religious garb or articles (such as a cross) if they object on grounds of non-belief.

Because this definition is so broad, whether or not a practice or belief is religious typically is not disputed in Title VII religious discrimination cases.

3. Does the law apply to dress or grooming practices that are religious for an applicant or employee, even if other people engage in the same practice for non-religious reasons?

Yes. Title VII applies to any practice that is motivated by a religious belief, even if other people may engage in the same practice for secular reasons. However, if a dress or grooming practice is a personal preference, for example, where it is worn for fashion rather than for religious reasons, it does not come under Title VII’s religion protections.

4. What if an employer questions whether the applicant’s or employee’s asserted religious practice is sincerely held?

Title VII’s accommodation requirement only applies to religious beliefs that are “sincerely held.” However, just because an individual’s religious practices may deviate from commonly-followed tenets of the religion, the employer should not automatically assume that his or her religious observance is not sincere. Moreover, an individual’s religious beliefs – or degree of adherence – may change over time, yet may nevertheless be sincerely held. Therefore, like the “religious” nature of a belief or practice, the “sincerity” of an employee’s stated religious belief is usually not in dispute in religious discrimination cases. However, if an employer has a legitimate reason for questioning the sincerity or even the religious nature of a particular belief or practice for which accommodation has been requested, it may ask an applicant or employee for information reasonably needed to evaluate the request.

EXAMPLE 1
New Observance

Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli’s observance can be sincerely held even though it is recently adopted.

EXAMPLE 2
Observance That Only Occurs at Certain Times or Irregularly

Afizah is a Muslim woman who has been employed as a bank teller at the ABC Savings & Loan for six months. The bank has a dress code prohibiting tellers from wearing any head coverings. Although Afizah has not previously worn a religious headscarf to work at the bank, her personal religious practice has been to do so during Ramadan, the month of fasting that falls during the ninth month of the Islamic calendar. The fact that Afizah adheres to the practice only at certain times of the year does not mean that her belief is insincere.

5. Can an employer exclude someone from a position because of discriminatory customer preference?

No. If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.

EXAMPLE 3
Employment Decision Based on Customer Preference

Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew’s business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh’s perceived religion. Adarsh’s termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.

Employers may be able to prevent this type of religious discrimination from occurring by taking steps such as training managers to rely on specific experience, qualifications, and other objective, non-discriminatory factors when making employment decisions. Employers should also communicate clearly to managers that customer preference about religious beliefs and practices is not a lawful basis for employment decisions.

6. May an employer automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy or preference regarding how employees should look?

No. Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business. Fact patterns illustrating whether or not an employer is aware of the need for accommodation appear below at examples 4-7.

For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act (ADA) undue hardship defense to disability accommodation.

When an exception is made as a religious accommodation, the employer may nevertheless retain its usual dress and grooming expectations for other employees, even if they want an exception for secular reasons. Co-workers’ disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference.

EXAMPLE 4
Exception to Uniform Policy as a Religious Accommodation

Based on her religious beliefs, Ruth adheres to modest dress. She is hired as a front desk attendant at a sports club, where her duties consist of checking members’ identification badges as they enter the facility. The club manager advises Ruth that the club has a dress code requiring all employees to wear white tennis shorts and a polo shirt with the facility logo. Ruth requests permission as a religious accommodation to wear a long white skirt with the required shirt, instead of wearing shorts. The club grants her request, because Ruth’s sincerely held religious belief conflicts with the workplace dress code, and accommodating her would not pose an undue hardship. If other employees seek exceptions to the dress code for non-religious reasons such as personal preference, the employer is permitted to deny their requests, even though it granted Ruth a religious accommodation.

7. How will an employer know when it must consider making an exception to its dress and grooming policies or preferences to accommodate the religious practices of an applicant or employee?

Typically, the employer will advise the applicant or employee of its dress code or grooming policy, and subsequently the applicant or employee will indicate that an exception is needed for religious reasons. Applicants and employees will not know to ask for an accommodation until the employer makes them aware of a workplace requirement that conflicts with their religious practice. The applicant or employee need not use any “magic words” to make the request, such as “accommodation” or “Title VII.” If the employer reasonably needs more information, however, the employer and the employee should discuss the request. In some instances, even absent a request, it will be obvious that the practice is religious and conflicts with a work policy, and therefore that accommodation is needed.

EXAMPLE 5
Employer Knowledge Insufficient

James’s employer requires all of its employees to be clean-shaven. James is a newly hired employee, and was hired based on an online application and a telephone interview. When he arrives the first day with an unshorn beard, his supervisor informs him that he must comply with the “clean-shaven” policy or be terminated. James refuses to comply, but fails to inform his supervisor that he wears his beard for religious reasons. James should have explained to his supervisor that he wears the beard pursuant to a religious observance. The employer did not have to consider accommodation because it did not know that James wore his beard for religious reasons.

EXAMPLE 6
Employer Knowledge Sufficient

Same facts as above but, instead, when James’s supervisor informs him that he must comply with the “clean-shaven” policy or be terminated, James explains that he wears the beard for religious reasons, as he is a Messianic Christian. This is sufficient to request accommodation. The employer is permitted to obtain the limited additional information needed to determine whether James’s beard is worn due to a sincerely held religious practice and, if so, must accommodate by making an exception to its “clean-shaven” policy unless doing so would be an undue hardship.

EXAMPLE 7
Employer Believes Practice Is Religious and Conflicts with Work Policy

Aatma, an applicant for a rental car sales position who is an observant Sikh, wears a chunni (religious headscarf) to her job interview. The interviewer does not advise her that there is a dress code prohibiting head coverings, and Aatma does not ask whether she would be permitted to wear the headscarf if she were hired. There is evidence that the manager believes that the headscarf is a religious garment, presumed it would be worn at work, and refused to hire her because the company requires sales agents to wear a uniform with no additions or exceptions. This refusal to hire violates Title VII, even though Aatma did not make a request for accommodation at the interview, because the employer believed her practice was religious and that she would need accommodation, and did not hire her for that reason. Moreover, if Aatma were hired but then instructed to remove the headscarf, she could at that time request religious accommodation.

8. May an employer assign an employee to a non-customer contact position because of customer preference?

No. Assigning applicants or employees to a non-customer contact position because of actual or feared customer preference violates Title VII’s prohibition on limiting, segregating, or classifying employees based on religion. Even if the employer is following its uniformly applied employee policy or practice, it is not permitted to segregate an employee due to fear that customers will have a biased response to religious garb or grooming. The law requires the employer to make an exception to its policy or practice as a religious accommodation, because customer preference is not undue hardship.

EXAMPLE 8
Assigning Employee to “Back Room” Because of Religious Garb

Nasreen, a Muslim applicant for an airport ticket counter position, wears a headscarf, or hijab, pursuant to her religious beliefs. Although Nasreen is qualified, the manager fears that customers may think an airport employee who is identifiably Muslim is sympathetic to terrorist hijackers. The manager, therefore, offers her a position in the airline’s call center where she will only interact with customers by phone. This is religious segregation and violates Title VII.

As a best practice, managers and employees should be trained that the law may require making a religious exception to an employer’s otherwise uniformly applied dress or grooming rules, practices, or preferences. They should also be trained not to engage in stereotyping about work qualifications or availability based on religious dress and grooming practices. Many EEOC settlements of religious accommodation cases provide for the employer to adopt formal religious accommodation procedures to guide management and employees in handling these requests, as well as annual training on this topic.

9. May an employer accommodate an employee’s religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work?

Yes, if the employee’s religious beliefs permit covering the attire or item. However, requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.

EXAMPLE 9
Covering Religious Symbol Contrary to Individual’s Religious Beliefs

Edward practices the Kemetic religion, an ancient Egyptian faith, and affiliates himself with a tribe numbering fewer than ten members. He states that he believes in various deities and follows the faith’s concept of Ma’at, a guiding principle regarding truth and order that represents physical and moral balance in the universe. During a religious ceremony he received small tattoos encircling his wrist, written in the Coptic language, which express his servitude to Ra, the Egyptian god of the sun. When his employer asks him to cover the tattoos, he explains that it is a sin to cover them intentionally because doing so would signify a rejection of Ra. Therefore, covering the tattoos is not a reasonable accommodation, and the employer cannot require it absent undue hardship.

10. May an employer deny accommodation of an employee’s religious dress or grooming practice based on the “image” that it seeks to convey to its customers?

An employer’s reliance on the broad rubric of “image” or marketing strategy to deny a requested religious accommodation may amount to relying on customer preference in violation of Title VII, or otherwise be insufficient to demonstrate that making an exception would cause an undue hardship on the operation of the business.

EXAMPLE 10
“Image”

Jon, a clerical worker who is an observant Jew, wears tzitzit (ritual knotted garment fringes at the four corners of his shirt) and a yarmulke (or skull cap) in conformance with his Jewish beliefs. XYZ Temps places Jon in a long-term assignment with one of its client companies. The client asks XYZ to notify Jon that he must remove his yarmulke and his tzitzit while working at the front desk, or assign another person to Jon’s position. According to the client, Jon’s religious attire presents the “wrong image” and also violates its dress code prohibiting any headgear and requiring “appropriate business attire.” XYZ Temps may not comply with this client request without violating Title VII.

The client also would violate Title VII if it changed Jon’s duties to keep him out of public view, or if it required him not to wear his yarmulke or his tzitzit when interacting with customers. Assigning Jon to a position out of public view is segregation in violation of Title VII. Moreover, because notions about customer preference (real or perceived) do not establish undue hardship, the client must make an exception to its dress code to let Jon wear his religious garb during front desk duty as a religious accommodation. XYZ should strongly advise its client that the EEO laws require allowing Jon to wear this religious garb at work and that, if the client does not withdraw its request, XYZ will place Jon in another assignment at the same rate of pay and decline to assign another worker to the client.

EXAMPLE 11
“Image”

Tahera, an applicant for a retail sales position at a national clothing company that carries current fashions for teens, wears a headscarf in accordance with her Muslim religious beliefs. Based on its marketing strategy, the company requires sales personnel to wear only clothing sold in its stores, and no headgear, so that they will look like the clothing models in the company’s sales catalogues. Although the company believes that Tajera wears a headscarf for religious reasons, the company does not hire her because it does not want to make an exception. While the company may maintain its dress and grooming rule for other sales personnel, it must make an exception for Tahera as a religious accommodation in the absence of employer evidence of undue hardship.

In many jobs for which employers require employees to wear uniforms (e.g., certain food service jobs or service industry jobs), the employee’s beliefs may permit accommodation by, for example, wearing the item in the company uniform color(s). Employers should ensure that front-line managers and supervisors understand that if an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.

11. Do government agencies whose employees work with the public have to make exceptions to uniform policies or otherwise allow religious dress and grooming practices if doing so would not cause an undue hardship?

Yes. Government agency employers, like private employers, must generally allow exceptions to dress and grooming codes as a religious accommodation, although there may be limited situations in which the need for uniformity of appearance is so important that modifying the dress or grooming code would pose an undue hardship. Therefore, it is advisable in all instances for employers to make a case-by-case determination of any needed religious exceptions.

EXAMPLE 12
Public Employee

Elizabeth, a librarian at a public library, wears a cross as part of her Catholic religious beliefs. In addition, after church services she attends on Ash Wednesday each year, Elizabeth arrives at work with a black ash mark on her forehead in the shape of a cross, which she leaves on until it wears off. Her new supervisor directs her not to wear the cross in the future while on duty, and to wash off the ash mark before reporting to work. Because Elizabeth’s duties require her to interact with the public as a government employee, the supervisor fears that her cross and ash mark could be mistaken as government endorsement of religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. He cites the need to avoid any appearance of religious favoritism by government employees interacting with the public, and emphasizes that librarians must be viewed as impartial with respect to any information requests from library patrons. However, because the librarian’s cross and ash mark are clearly personal in this situation, they would not cause a perception of government endorsement of religion. Accordingly, accommodating Elizabeth’s religious practice is not an undue hardship under Title VII.

EXAMPLE 13
Public Employee

Gloria, a newly hired municipal bus driver, was terminated when she advised her supervisor during new-employee orientation that due to the tenets of her faith (Apostolic Pentecostal), she needs to wear a skirt rather than the pants required by the transit agency dress code. Absent evidence that the type of skirt Gloria must wear would pose an actual safety hazard, no undue hardship would have been posed by allowing this dress code exception, and Gloria’s termination would violate Title VII.

12. May an employer bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns?

Yes, but only if the practice actually poses an undue hardship on the operation of the business. The employer should not assume that the accommodation would pose an undue hardship. While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.

EXAMPLE 14
Long Hair

David wears long hair pursuant to his Native American religious beliefs. He applies for a job as a server at a restaurant that requires its male employees to wear their hair “short and neat.” When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs and offers to wear it in a ponytail or held up with a clip. The manager refuses this accommodation and denies David the position because he has long hair. Since David could have been accommodated without undue hardship by wearing his hair in a ponytail or held up neatly with a clip, the employer violated Title VII.

EXAMPLE 15
Facial Hair

Prakash, who works for CutX, a surgical instrument manufacturer, does not shave or trim his facial hair because of his Sikh religious observance. When he seeks a promotion to manage the division responsible for sterilizing instruments, his employer tells him that he must shave or trim his beard because it may contaminate the sterile field. All division employees are required to be clean shaven and wear a face mask. When Prakash explains that he does not trim his beard for religious reasons, the employer offers to allow Prakash to wear two face masks instead of trimming his beard. Prakash thinks that wearing two masks is unreasonable and files a Title VII charge. CutX will prevail because it offered a reasonable accommodation that would eliminate Prakash’s religious conflict with the hygiene rule.

EXAMPLE 16
Facial Hair

Raj, a Sikh, interviews for an office job. At the end of the interview, he receives a job offer but is told he will have to shave his beard because all office staff are required to be “clean shaven” to promote discipline. Raj advises the hiring manager that he wears his beard unshorn because of his Sikh religious practice. Since no undue hardship is posed by allowing Raj to wear his beard, the employer must make an exception as an accommodation.

EXAMPLE 17
Clothing Requirements Near Machinery

Mirna alleges she was terminated from her job in a factory because of her religion (Pentecostal) after she told her supervisor that her faith prohibits her from wearing pants as required by the company’s new dress code. Mirna requested as an accommodation to be permitted to continue wearing a long but close-fitting skirt. Her manager replies that the dress code is essential to safe and efficient operations on the factory floor, but there is no evidence regarding operation of the machinery at issue to show that close-fitting clothing like that worn by Mirna poses a safety risk. Because the evidence does not establish that wearing pants is truly necessary for safety, the accommodation requested by Mirna does not pose an undue hardship.

EXAMPLE 18
Head Coverings That Pose Security Concerns

A private company contracts to provide guards, administrative and medical personnel, and other staff for state and local correctional facilities. The company adopts a new, inflexible policy barring any headgear, including religious head coverings, in all areas of the facility, citing security concerns about the potential for smuggling contraband, interfering with identification, or use of the headgear as a weapon. To comply with Title VII, the employer should consider requests to wear religious headgear on a case-by-case basis to determine whether the identified risks actually exist in that situation and pose an undue hardship. Relevant facts may include the individual’s job, the particular garb at issue, and the available accommodations. For example, if an individual’s religious headgear is or can be worn in a manner that does not inhibit visual identification of the employee, and if temporary removal may be accomplished for security screens and to address smuggling concerns without undue hardship, the individual can be accommodated.

EXAMPLE 19
Kirpan

Harvinder, a Sikh who works in a hospital, wears a small (4-inch), dull, and sheathed kirpan (symbolic miniature sword) strapped and hidden underneath her clothing, as a symbol of her religious commitment to defend truth and moral values. When Harvinder’s supervisor, Bill, learned about her kirpan from a co-worker, he instructed Harvinder not to wear it at work because it violated the hospital policy against weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh code of conduct, and gave him literature explaining that the kirpan is a religious artifact, not a weapon. She also showed him the kirpan, allowing him to see that it was no sharper than the butter knives found in the hospital cafeteria. Nevertheless, Bill told her that her employment at the hospital would be terminated if she continued to wear the kirpan at work. Absent any evidence that allowing Harvinder to wear the kirpan would pose an undue hardship in the factual circumstances of this case, the hospital is liable for denial of accommodation.

13. Are applicants and employees who request religious accommodation protected from retaliation?

Yes. Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.

EXAMPLE 20
Retaliation for Requesting Accommodation

Salma, a retail employee, requests that she be permitted to wear her religious headscarf as an exception to her store’s new uniform policy. Joe, the store manager, refuses. Salma contacts the human resources department at the corporate headquarters. Despite Joe’s objections, the human resources department instructs him that in the circumstances there is no undue hardship and that he must grant the request. Motivated by reprisal, Joe shortly thereafter gives Salma an unjustified poor performance rating and denies her request to attend training that he approves for her co-workers. This violates Title VII.

14. What constitutes religious harassment under Title VII, and what obligation does an employer have to stop it?

Religious harassment under Title VII may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment. Religious harassment may also occur when an employee is subjected to unwelcome statements or conduct based on religion. Harassment may include offensive remarks about a person’s religious beliefs or practices, or verbal or physical mistreatment that is motivated by the victim’s religious beliefs or practices. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, such conduct rises to the level of illegal harassment when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment action (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or even a third party who is not an employee of the employer, such as a client or customer.

An employer is liable for harassment by co-workers and third parties where it knew or should have known about the harassment and failed to take prompt and appropriate corrective action. An employer is always liable for harassment by a supervisor if it results in a tangible employment action, such as the harassment victim being fired or demoted.[18] Even if the supervisor’s harassment does not result in a tangible employment action, the employer will still be liable unless it exercised reasonable care to prevent and correct promptly any harassing behavior (such as having an effective complaint procedure) and the harassed employee unreasonably failed to take advantage of opportunities to prevent or correct it (such as failing to use the complaint procedure).

EXAMPLE 21
Co-Worker Harassment

XYZ Motors, a large used car business, has several employees who are observant Sikhs or Muslims and wear religious head coverings. A manager becomes aware that an employee named Bill regularly calls these co-workers names like “diaper head,” “bag head,” and “the local terrorists,” and that he has intentionally embarrassed them in front of customers by claiming that they are incompetent. Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to stop the conduct by anyone under their control.

Workplace harassment and its costs are often preventable. Clear and effective policies prohibiting ethnic and religious slurs and related offensive conduct are essential. Confidential complaint mechanisms for promptly reporting harassment are critical, and these policies should encourage both victims and witnesses to come forward. When harassment is reported, the focus should be on action to end the harassment and correct its effects on the complaining employee. Employers should have a well-publicized and consistently applied anti-harassment policy that clearly explains what is prohibited, provides multiple avenues for complaints to management, and ensures prompt, thorough, and impartial investigations and appropriate corrective action.

The policy should also assure complainants that they are protected against retaliation.

Employees who are harassed based on religious belief or practice should report the harassment to their supervisor or other appropriate company official in accordance with the procedures established in the company’s anti-harassment policy.

Once an employer is on notice of potential religious harassment, the employer should take steps to stop the conduct. To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of abusive or insulting conduct, even absent a complaint.

15. What should an applicant or employee do if he believes he has experienced religious discrimination?

Employees or job applicants should attempt to address concerns with management. They should keep records documenting what they experienced or witnessed and any complaints they have made about the discrimination, as well as witness names, telephone numbers, and addresses. If the matter is not resolved, private sector and state and local government applicants and employees may file a charge of discrimination with the EEOC.

To locate the EEOC office in your area regarding questions or to file a charge of discrimination within applicable time deadlines, call toll free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information.

Federal sector applicants and employees should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling. For more details, see “How to File a Charge of Employment Discrimination,” http://www.eeoc.gov/employees/charge.cfm.

16. Where can employers and employees obtain more information?

In addition to Title VII’s prohibitions on religious, race, color, national origin, and sex discrimination, the EEOC enforces federal statutes that prohibit employment discrimination based on age, disability, or genetic information of applicants or employees. The EEOC conducts various types of training and can help you find a format that is right for you. More information about outreach and training programs is available at http://www.eeoc.gov/eeoc/outreach/index.cfm. You should also feel free to contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or for more specialized questions, by calling 1-800-669-4000 (TTY 1-800-669-6820), or sending written inquiries to: Equal Employment Opportunity Commission, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.

Employee Misconduct During Mediation of Discrimination Complaint Not Protected under Title VII of the Civil Rights Act

Tuesday, July 30th, 2013

In Benes v. A.B. Data, Ltd., ___ F.3d ___, Case No. 13-1166 (7th Cir. July 26, 2013), the court upheld termination of an employee stemming from his misconduct during mediation of a sex discrimination complaint.  The court described the circumstances of the misconduct as follows:

The EEOC arranged for mediation in which, after initial joint session, the parties separated and a go-between relayed offers.  In a separate room mediation, each side (including attorneys and assistants) stays in its own room.  The intermediary shuffles between rooms.  Many mediators believe that this approach prevents tempers from erupting, allows each side to discuss its own position candidly without the adversary’s presence, and facilitates careful deliberation and compromise.  But on receiving a settlement proposal that he thought too low, Benes stormed into the room occupied by his employer’s representatives and said loudly:  ‘You can take this proposal and shove it up your ass and fire me and I’ll see you in court.’
The court then noted, “Within an hour A.B. Data accepted Benes’s counterproposal:  it fired him.”
        Benes claimed the termination constituted unlawful retaliation under Title VII of the Civil Rights Act of 1964.  However, the circuit court upheld the termination stating:
It was Benes who sabotaged the mediation session by barging into the other side’s room.  Mediation would be less useful, and serious claims of discrimination therefore would be harder to vindicate, if people could with impunity ignore the structure established by the mediator.
. . .
We cannot see why misconduct during mediation should be consequence free.  Judges do not supervise mediation, which makes it all the more important that transgressions be dealt with in some other fashion.
The court concluded Title VII “covers investigation and litigation in the same breath” and, since it does not “create a privilege to misbehave in court, it does not create a privilege to misbehave in mediation.”