Religious discrimination claims on the rise in Michigan
Employers often aren’t aware of ‘non-traditional’ practices.
Religious discrimination claims in Michigan rose 24 percent from 2012 to 2013, according to data collected by the U.S. Equal Employment Opportunity Commission.
In 2013, the EEOC received 94 charges of religious discrimination in Michigan, up from 74 charges in 2012.
Andrea Bernard, an attorney at Warner Norcross and Judd, said those numbers mean Michigan businesses need to pay attention to the EEOC’s recently updated religious accommodation guidelines.
“The EEOC has several pages of content and a number of examples that are laid out in great detail, including a number of examples based on specific filings that the EEOC has handled of late — which means that it is really on the EEOC’s radar,” she said.
Bernard said Grand Rapids’ strong tradition of Judeo-Christianity has led its employers to generally be sensitive and respectful of employees’ religious beliefs, but, at the same time, it might mean employers are less aware of the customs of other religions, particularly those that are less well known.
“As Grand Rapids and West Michigan becomes increasingly diverse and increasingly global, which I think we really are, employers need to sensitize themselves and sensitize their managers to issues of religious accommodation — particularly of faith traditions that are outside our own norm,” Bernard said.
She provided a couple of unique examples highlighted in the EEOC’s guidelines.
“There was one example that the EEOC used of a fellow who filed a claim because an employer required him to cover a tattoo,” Bernard said. “That is not an uncommon request that employers make.
“This guy said the tattoo was an homage to the sun god, Ra, who is an ancient Egyptian god, and that he was a member of a religious group that consisted of 10 people worldwide that continue to worship Ra.”
It was his view that being asked to cover the tattoo went against his religious belief, and led him to file the charge with the EEOC. Bernard said the company needed to, at a minimum, have a conversation with the man regarding the tattoo and consider an accommodation.
Another case involved a man who a company believed had violated its “no weapons at work” policy.
“The weapon that this person had was a thing called a kirpan,” Bernard explained. “It’s a miniature sword that is worn by a person who is an orthodox member of the Sikhs religion. It is often worn under the clothes as a symbol of the religious commitment to defend truth and moral values.”
Bernard said it is easy for a manager to make a mistake when it comes to religious accommodation decisions and trying to enforce workplace policies.
“I’ve seen many times where supervisors, trying to do the right thing and thinking, ‘This is my responsibility as a manager to do something here,’ really handled it the wrong way,” she said. “Not because they are malicious but because they don’t know how to handle it.”
One reason is because religious accommodation requirements are not limited to traditions followed by formal religious denominations, which many people don’t realize. Secondly, a manager who begins a conversation by trying to determine whether something is really a sincerely held religious belief or is required by the religion is going down the wrong path and setting the company up for a religious discrimination claim, she said.
“According to the EEOC, it really covers any sincerely held religious, moral or ethical belief or practice,” Bernard said.
“The EEOC actually said it is their position that whether something is truly a sincerely held belief, a protected religious belief or practice, generally won’t be scrutinized. In the EEOC’s eyes, you immediately jump to the analysis of what accommodation is required rather than having an analysis of whether an accommodation is required.”
Companies need to train supervisors and managers to have respectful conversations with their employees and not exhibit personal judgments about the employee’s belief system.
“I can tell you if an employee said, ‘This tattoo is for the sun god Ra,’ and the manager said, ‘Seriously? Come on,’ then, when the employer later comes back and says, ‘I cannot accommodate that,’ the EEOC is going to say, ‘It sounds more like you don’t want to accommodate it,’” Bernard said.
Religious accommodation rules do not mean companies cannot have dress code policies or that there are not circumstances when a company can say no to providing an accommodation, she added.
“If an employer wants to have a particular dress code because it supports their culture or their safety practices or what have you, they need to have it in writing,” she said. “It’s very hard to enforce something you don’t have (in writing).
“Also, you need to support that dress code with objective factors; for example, if it is because of safety that a guy can’t come in with a long beard or a person can’t come in with long sleeves — tie it to objective factors.”
Additionally, any religious accommodation that would require an undue hardship on the employer does not need to be implemented. According to the EEOC, “undue hardship” factors include something that is too costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.
Bernard said something that would not fall under undue hardship is customer or co-worker preference.
“‘I don’t want this employee to be working at the counter because my customers might think it’s odd that I have someone that has to wear a Muslim hijab that covers her head. It just doesn’t look right. My customers might not like that.’ Customer preference is not undue hardship,” she said.
Bernard reiterated that the best way for a company to limit its risk from a religious discrimination complaint is to be aware of the EEOC guidelines, be prepared to have a respectful conversation about someone’s religious beliefs or practices, provide training for all employees on religious accommodation and tolerance, make sure any policy is written down and disseminated to employees, and know when to engage HR or legal counsel.