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Two religious discrimination lawsuits filed by the U.S. Equal Employment Opportunity Commission (EEOC) in late June 2011 illustrate that a predicted trend in equal employment opportunity claims is coming true, according to sources familiar with the issue.
“It is definitely a trend that the number of religious discrimination claims are on the rise and will continue to increase, which we predicted would happen,” said Joyce Dubensky, executive vice president and CEO of the Tanenbaum Center for Interreligious Studies in New York City. “The number of religious bias claims has been on a steady increase over the past decade.”
Dubensky pointed to a survey of U.S. workers conducted by Tanenbaum in 1998 in which nearly two-thirds of the respondents reported that they could identify religious bias in their workplaces. Slightly more than 50 percent of the survey respondents who had experienced some form of religious bias directly said that the discrimination had a major impact on their work performance and productivity.
“The data showed that this is a very serious issue that can have a major impact on employees and employers,” Dubensky said. “And I believe these recent cases filed by the EEOC really just show the tip of the iceberg.”
The latest EEOC lawsuits were filed on June 27, 2011. According to one complaint, filed in U.S. District Court for the District of Columbia (EEOC v. Rent-A-Center, Inc., Civil Action No. 1:11-cv-01170), Rent-A-Center Inc. discriminated against Ferdinand Charles, a store manager, because Charles is a Seventh-day Adventist. The suit alleges that Rent-A-Center discharged Charles because he would not work on Saturdays.
Charles had requested that he be excused from working on Saturdays before sundown as a religious accommodation. According to the EEOC complaint, Charles’ request was denied initially, but after he was transferred to another Rent-A-Center location he was given the religious accommodation. For approximately three months, the company allowed Charles to take Saturdays off. However, his accommodation was revoked when the company reorganized and requested that Charles work on Saturdays. When Charles refused because of his religious beliefs, the company fired him, the suit alleged.
Title VII of the Civil Rights Act of 1964 requires employers to make “reasonable accommodations” to sincerely held religious beliefs of employees as long as doing so poses no “undue hardship” on the employer. According to the EEOC officials, the agency filed suit only after it attempted to reach a pre-settlement with Rent-A-Center. The EEOC suit seeks back pay, reinstatement, compensatory damages, punitive damages and injunctive relief.
“Employers must remember their duty to provide an accommodation to the sincerely held religious beliefs of its employees and applicants,” Lynette A. Barnes, regional attorney for the EEOC’s Charlotte, N.C., district office, said in a written statement. “An employee should not be forced to choose between his faith and his job. This case demonstrates the EEOC’s commitment to fighting religious discrimination in the workplace.”
The second workplace discrimination lawsuit was filed by the EEOC in the U.S. District Court for the Northern District of California. The EEOC complaint alleged that clothing retailer Abercrombie & Fitch violated federal law when it fired a female Muslim employee for wearing a hijab or a religious headscarf. According to the EEOC, in October 2009, Umme-Hani Khan, a 19-year-old Muslim woman, started working for a Hollister store, an Abercrombie & Fitch subsidiary, in the Hillsdale Shopping Center in San Mateo, Calif. At first, the company asked her to wear headscarves in Hollister colors, to which she agreed. Several months later, however, Khan’s manager told her that her scarf violated the Abercrombie “look policy” and said that she would not be scheduled to work unless she removed her headscarf while on the job. According to the EEOC complaint, Khan was fired on Feb. 23, 2010, for refusing to take off the scarf that her religious beliefs compelled her to wear.
“Ms. Khan held a low-visibility position, willingly color-coordinated her headscarf with the store’s brand and capably performed her stockroom duties for four and half months until a visiting manager flagged her hijab as a violation of their look policy,” Michael Baldonado, the EEOC’s San Francisco District director, said in a written statement. “What undue burden did this retail giant face that prevented them from allowing her to practice her faith? Moreover, what kind of statement of intolerance are they sending to their teen customers?”
Khan’s religious bias complaint is the second lawsuit that the EEOC’s San Francisco district office has filed against Abercrombie & Fitch over the retailer’s alleged failure to accommodate employees who wear a hijab. In 2010, the EEOC filed a lawsuit alleging that the company discriminated against a job applicant who asked if she could wear a headscarf while working at an Abercrombie Kids store in Milpitas, Calif. The company’s “all-American look” policy has been the focus of prior EEOC litigation, which resulted in a $40 million settlement paid to a class of African-Americans, Asian-Americans, Latinos and women who were excluded from being hired or promoted by the retailer.
“The company’s ‘all-American look’ policy is un-American because it excludes people because of their race, national origin, gender or religion,” said EEOC San Francisco Regional Attorney William R. Tamayo.
Rent-A-Center has not commented on the litigation.
An Abercrombie & Fitch statement reads: “The diversity of the employees of Abercrombie & Fitch brand stores far exceeds the diversity of the population of the United States. … Diversity and inclusion are key to our organization's success. We are determined to have a diverse culture throughout our organization that benefits from the perspectives of each individual.”
Tanenbaum’s Dubensky said that employers need to take a hard look at policies that run afoul of workplace discrimination laws and examine carefully what might be considered a reasonable accommodation for an employee’s religious beliefs.
“What constitutes a ‘reasonable accommodation’ and an ‘undue hardship’ is certainly a matter of interpretation and can create confusion for employers,” Dubensky said. “But employers that take a proactive stance to craft thoughtful and fair policies on religious accommodations and then put those policies into practice will be able to cut through this confusion and avoid costly litigation. These employers will also have much more productive and happy employees.”
Bill Leonard is a senior writer for SHRM.
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