Religious Discrimination

Trick or Treat? Employee Claims Discrimination After Attending Office Halloween PartyBefore you send out that next office-wide invite to a “holiday” party, think twice. Carmelite Lofton has sued her employer, BSN Sports, LLC—a Texas uniform and equipment retailer—when things turned sour after she was forced to attend an office Halloween party. Lofton—an African American and a Christian, says the party was contrary to her religious beliefs and afterward she endured verbal and professional slights due to her race, religion, and disability.

The Legal Issues

The complaint contains claims under the Americans with Disabilities Act, Title VII, and the Lily Ledbetter Fair Pay Act of 2009.  She argues that for the entirety of her employment she was subject to a hostile work environment, discriminated against on the basis of her disability (osteoarthritis), and paid less than her colleagues because of her race and religion. She argues that her termination in March 2017 was unlawful and motivated by discriminatory factors.

          Disability Discrimination Claims. Regarding her disability claim, Lofton alleges that she told BSN about her osteoarthritis at the start of her employment, but was still made to perform strenuous physical activities in direct contravention of her doctor’s orders. Under the ADA, employers are charged with providing reasonable accommodations to workers with known disabilities. Reasonable accommodations can include things such as time off, modified duties, or even a special work area if it will aid the disabled employee in carrying out their job responsibilities.

Here though, Lofton argues that BSN refused to accommodate her and terminated her employment under false pretext. Specifically, Lofton points to being made to stand for over an hour while in “excruciating pain” at the Halloween party and having to clean and pack the BSN office building after it had been damaged in a flood.

          Religious Discrimination Claims. Beyond experiencing discrimination and a hostile work environment because of her disability, Lofton also asserts that her religion was a cause of conflict during her time at BSN. Specifically, Lofton alleges (1) her superiors told her she was “going to hell” for bringing in tootsie rolls, (2) she was told she “didn’t have a choice” of whether she participated in the office Halloween party, and (3) she was intentionally asked to accompany her manager to “Condom Sense” despite the knowledge that it was opposite to her religious ideals.

Lofton recites a series of alleged cringe-worthy incidents ranging from management’s off-handed comments against the Bible to being continually interrupted during private prayer meetings held during her lunch break to being told she should “just have Kool-Aid” when she refused to drink alcohol with her colleagues. Regardless, Lofton’s complaint is chock full of alleged derogatory exchanges in support of her religiously hostile work environment claim.

          Race Discrimination Claims. Lofton claims she was treated differently because of her race. To argue a disparate treatment claim, Lofton must show that her employer intentionally discriminated against her or treated her less favorably because of her race.

Here, Lofton argues that her non-African American colleagues were paid more for doing the same job and/or for doing a job with lesser duties and responsibilities. Further, she asserts that her non-African American colleagues did not have to use PTO when out for injuries or illnesses, whereas she was forced to use PTO for her osteoarthritis surgery. To strengthen her claim, Lofton includes that her superior has previously been accused of racial discrimination, citing a 2015 incident where an email with “a stick figure being hung on a noose” was distributed company-wide.

So What Does This Mean for Employers?

All we know is what Ms. Lofton says in her complaint and we all know that BSN’s version of events is likely to tell a different story. The question now becomes, as employers, what can we learn from this complaint?

  1. Check your policies. For starters, this is an excellent time to re-evaluate your company’s policies and to focus on maintaining a workplace that is welcoming to all, regardless of race, religion, gender, disability, etc. Recognize that an employee’s religious beliefs are protected and make sure they are not the subject of jokes or potentially disparaging comments.
  2. Rethink mandatory holiday celebration. Refrain from forcing any employee, regardless of religious belief, to attend company holiday functions. It is far too easy to blur the line between optional and compelled attendance, but once blurred, you run the risk of facing the same type of problem now facing BSN.
  3. Keep your management and staff up-to-date on non-discrimination policies, have routine sensitivity training, and take the position that discriminatory behaviors will not be tolerated in any form or fashion. Encourage your staff to speak with HR or to use other resources to report instances of what they believe is discrimination.
  4. Do a quick audit. Look around to make sure people who have disclosed potential disabilities are being appropriately accommodated. For employees with obvious disabilities, check to see if they have requested accommodations and haven’t yet gotten them. Check their files to see if they have submitted anything in writing. If you find someone who has been overlooked, find a way to do it…quickly.

Blocked Shot? Employer Runs into Religious Issues with Mandatory Flu VaccinesIf you require your employees to get a flu shot, what do you do with the ones who refuse on religious grounds? As with so much in employment law, it depends. In Equal Employment Opportunity Commission v. Mission Hospital, a federal district court in North Carolina denied the hospital’s motion for summary judgment, finding that there were disputes of fact as to whether the Mission Hospital discriminated against three employees on religious grounds.

Mission Hospital’s Flu Vaccine Program

Mission Hospital requires some employees to get flu shots. Foreseeing that some people object to getting flu shots, the hospital provided notices that all employees must be vaccinated by December 1 and that requests for exemption must be filed by September 1. The notice provided instructions specifically about religious exemptions. So far, so good.

The hospital publicized the flu shot requirement in a number of ways—flyers, screensavers, bulletin board postings and other advertisements. It also included the requirement in the offer letter to one of the three employee claimants. So the hospital made clear that it really wanted employees to get the flu shot, and it gave employees a way to get an exemption.

According to the court’s opinion, since 2010, Mission Hospital had granted religious exemptions to 250 employees who timely requested an exemption. Apparently, the claimants in this case all missed the hospital’s deadline to request an exemption and were terminated for failure to get the shot (or obtain a timely exemption). The EEOC said Mission Hospital treated the claimants differently because of their religious beliefs in violation of Title VII and filed a lawsuit.

The Law

As we all know, Title VII prohibits discrimination based on religion. Under the law, “religion” need not be a mainstream or widely recognized or practiced religion. In the Fourth Circuit (which includes North Carolina), to prove a threshold (or prima facie) case of religious discrimination, a plaintiff must establish that he or she (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of the belief, and (3) was disciplined for failure to comply with the conflicting employment requirement. If a plaintiff establishes a prima facie case, the defendant then must demonstrate that it could not reasonably accommodate the employee’s religious needs without undue hardship. Undue hardship in the religious accommodation context is different than in the ADA disability discrimination context. A religious undue hardship requires only that the employer establish that the accommodation would have required more than de minimis cost.

The Court’s Denial of Summary Judgment

The court assumed for purposes of summary judgment that the claimants established a prima facie case and had sincerely held religious beliefs. Again, the religious beliefs were not necessarily widely held. The claimants professed to believe that (1) “injecting the flu vaccine into my body is morally wrong because my body is a temple given by God”, (2) “I am healed by plants, fruits, and grains” (not chemicals), and (3) “injecting chemicals and diseases into my veins is not something God intends and is wrong.” The hospital did not deny the exemptions based on the religious beliefs but because each claimant missed the September 1 deadline to request the exemption.

The court did not probe into whether the claimants’ professed religious beliefs were sincerely held and seemed to suggest that a reasonable jury could find that these are not sincerely held or religious. The court also noted that a reasonable jury could side with the EEOC and find that the hospital’s refusal of the exemption was discrimination based on religion.

Lessons Learned for Your Flu Shot Program

  • If you want to require employees to get a flu shot, expect some push back. Employees with medical issues and religious beliefs should be given a way to opt out.
  • On the religious side of things, don’t get hung up on whether the employee’s reason sounds “religious” to you. The law broadly defines religion, and it doesn’t take much to qualify as a sincerely held religious belief. Don’t do or say (or allow your supervisors to do or say) things that suggest you think an articulated religious belief is bogus. That is a quick way to get the EEOC’s attention.
  • Be sure to treat employees the same whether they want or don’t want the vaccine. In this case, the EEOC said that Mission Hospital gave employees who missed the December 1 deadline for getting the flu shot a grace period, but did not provide a similar grace period for those who missed the September 1 exemption request deadline. The court noted that a jury could find that the hospital was treating employees who did not request a religious exemption more favorably.

You don’t want to be in court over your flu shot program. Be fair, be flexible, and remember that you may have less than 100 percent participation and, absent a compelling argument that everyone must be vaccinated, there is probably not much you can do about it.

Back to Wedding Cakes and DJs----5th Circuit Overturns Injunction against Mississippi Religious Freedom Law Last week, the 5th Circuit Court of Appeals overturned a lower court’s injunction of the enactment of Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act” (HB 1523). As written about in a blog post from July 2016 and one from April 2016, this law was touted as only dealing with state action against individuals who may have strong religious or moral beliefs in how they make service or employment decisions. Many thought that HB 1523 could be interpreted much more broadly and got a court to enjoin it.

The 5th Circuit found that the individuals and groups that obtained the injunction had not yet suffered an adequate injury that would give them standing to challenge the constitutionality of the law. The opinion did not make any judgments on how the court might rule if a plaintiff with an actual injury challenged the law.

It is likely that the plaintiffs in this matter will ask for a rehearing, a stay, or take this case to the United States Supreme Court. As the law was scheduled to go into effect on July 1, 2016, given the 5th Circuit’s ruling, it may be considered effective immediately. As noted in our earlier posts on this matter, it is important for Mississippi employers to remember that this law does not relieve them of any responsibilities or prohibitions under federal laws like Title VII.