Be Prepared for Religious, LGBTQ Issues in Workplace

By Kathy Gurchiek Nov 4, 2016
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​The number of workers filing lawsuits claiming discrimination based on religious faith or sexuality is on the rise in the U.S.

More than 3,500 charges of workplace religious discrimination, for example, came before the Equal Employment Opportunity Commission (EEOC) in 2015. The number of charges has risen about 44 percent in the last 10 years, according to Michael S. Cohen, partner at Duane Morris LLP in Philadelphia. In 2014, the EEOC obtained $8 million in settlements involving religious discrimination cases.

Cohen led a concurrent session on "Managing D&I: Religion and LGBTQ Issues in the Workplace" at the Society for Human Resource Management's (SHRM's) Diversity & Inclusion (D&I) Conference & Exposition in October.

"These [religious and LGBTQ] cases are happening every day and many organizations, because of the lack of willingness to talk about them, don't have the first clue" as to how to respond when they come up, he said. So, he shared some pointers.

Accommodating Different Religious Beliefs

The broad definition of a "bona fide religious belief," he said, is a sincerely held belief that includes moral and ethical practices and beliefs that fill the role of religion. It includes more than organized and recognized teachings of religion and may include beliefs held by a just few people—or even one person.

[SHRM members-only toolkit: Accommodating Religion, Belief and Spirituality in the Workplace]

Religious beliefs may dictate dress, hair style and length, praying, eating, holiday observances, and proselytizing and/or recruitment of others—all things that may impact the workplace.

Title VII of the Civil Rights Act of 1964 prohibits religious discrimination and requires employers to provide reasonable accommodation of religious observance, practice and belief unless the employer can demonstrate that a reasonable accommodation cannot be made "without undue hardship on the conduct of the employer's business," Cohen said.

Reasonable accommodations commonly include time off for religious observances, rearranging work schedules or allowing employees to swap shifts, modifying dress codes, offering lateral transfers, and exchanging break times for early departure.

"Once an accommodation is deemed to be reasonable," which he said was an extremely low bar for the employee to demonstrate "... we then have the opportunity to show whether there's an undue hardship" on the employer.

Undue hardships may be shown, he said, where the accommodation:

  • Requires more than ordinary administrative costs.
  • Diminishes efficiency in other jobs and causes co-workers to be overburdened.
  • Infringes upon the job rights or benefits of other employees.
  • Impairs workplace safety.
  • Conflicts with another law, regulation or company obligation, such as complying with sanitation or public health regulations.
Cohen said it was critical for employers to talk with their employees to find a workable solution for both parties.

An employer is obligated to consider whether a reasonable accommodation is possible, but it is not required to provide the employee's requested accommodation. However, the employer must consider a reasonable alternative to the work requirement, and the employee is obligated to work with the employer to find a reasonable accommodation, he said.

Cohen peppered his presentations with hypothetical situations: An employee works in a kitchen handling food and is required to have short hair or wear a hair net. The employee refuses to cut his hair or wear a hair net because his religion requires him to wear his hair long and uncovered. In this case, one solution would be making a lateral transfer; doing so would accommodate the employee's religious practice while not violating the employer's kitchen requirements or any governmental regulations.

An employee's religious leanings may change over time, Cohen pointed out. People convert or find religion later in life, so a request for prayer breaks or certain days off from an employee who had never before requested such an accommodation should not be summarily dismissed.

"Don't be that employer that automatically ... doesn't provide the accommodation being requested," he said.

Another hypothetical: An employee tells her supervisor she cannot work her assigned Saturday shifts because Saturday is her Sabbath and her religion requires her to attend church that day.

Before the supervisor can accommodate her, however, he needs more information. Is there another employee with whom she can trade shifts, for example? If not, accommodating the employee could present an undue hardship on the employer.

Learning About LGBTQ Workers

Increasingly, organizations are addressing LGBTQ issues in their workplace, Cohen noted. He shared the following definitions:

  • Sexual orientation is a person's physical and/or emotional attraction to men, women, men and women, other types of gender expression, or people with any gender expression. 
  • Gender identity is a person's sense of being a man or woman or falling outside of, or in between, either of those genders, or combining aspects of multiple genders. 
  • Gender expression is the outward characteristics and behaviors—dress, mannerisms, speech patterns, social interactions—that are socially defined as masculine or feminine.

Employers, by choice and by law, are welcoming LGBTQ employees. As of 2015:

  • 89 percent of Fortune 500 companies in the U.S. include sexual orientation in their nondiscrimination policies. 
  • 66 percent include gender identity and/or expression in their policies. 
  • 25 percent provide transgender-inclusive health care benefits, including surgical procedures. 
  • 22 states and the District of Columbia prohibit discrimination relating to sexual orientation. 
  • 19 states and the District of Columbia prohibit discrimination in private and public employment related to gender identity. 
  • More than 255 local municipalities provide protections in private and public employment against discrimination based on sexual orientation and/or gender identity. 
[SHRM members-only toolkit: Transgender Employees]

A person who is transgender identifies with the gender that is different from the one assigned at birth. Transgender women are people who identify as women; transgender men are people who identify as men.

However, some people who identify as transgender do not identify as men or women, Cohen noted, and some people who meet the definition of transgender do not identify with the word "transgender."

Be ready to respond to common questions—such as those about the existence of LGBTQ employee resource groups and whether the employer offers training on sexual orientation and gender identity—during the interview process, he said. Additionally, organizations should strive for LGBTQ representation among their decision makers.

Restroom usage is an increasingly hot workplace topic. In February, employers in California were issued guidance from the state's Department of Fair Employment and Housing on the rights of transgender employees. In March, North Carolina prohibited localities from enacting nondiscrimination protections for LGBTQ individuals and barring transgender people from using bathrooms that do not match the gender they were born with.

Cohen introduced a hypothetical case of a transgender woman who previously presented herself at work as a male. The employee has not undergone gender reassignment surgery but wants to access the women's restroom.

Jokingly, he challenged HR as to why this would be a concern.

"If this is an issue, what is going on in your bathrooms? Are there naked people running around? If so, you have far deeper concerns than who is in your bathrooms. You all have doors on your stalls? [If so], what is the concern? It is not really all that complicated."

 
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