What To Do When Religious Beliefs Become an Issue in the Workplace

Transcription

1 What To Do When Religious Beliefs Become an Issue in the Workplace September 8, 2016 Presenter: David J. Riewald Bullard Law (503) Tuesday afternoon Sabbath 2. Annual pilgrimage to Franklin Museum on his birthday 1

2 3. Wear hat on Tuesdays 4. Display Franklin action figure A veritable revolution in the world of action figures! Kids and grown-ups alike can embrace the mental superpowers of one of American history s most eclectic and accomplished characters. This 5-1/4" (13.3 cm) tall, hard vinyl action figure has moveable arms and legs and comes with a plastic kite and key. The real Benjamin Franklin s superpowers included (seriously): + Writing/Editing + Diplomacy + Signing declarations + Swimming + Wit + Scientific curiosity + Fighting fires + Inventing stuff (like bifocals, the rocking chair and his own kinda wacky musical instrument called the harmonium) $10.00 Ben Franklin Action Figure DESCRIPTION A veritable revolution in the world of action figures! Kids and grown-ups alike can embrace the mental superpowers of one of American history s most eclectic and accomplished characters. This 5-1/4" (13.3 cm) tall, hard vinyl action figure has moveable arms and legs and comes with a plastic kite and key. The real Benjamin Franklin s superpowers included (seriously): + Writing/Editing + Diplomacy + Signing declarations + Swimming + Wit + Scientific curiosity + Fighting fires + Inventing stuff (like bifocals, the rocking chair and his own kinda wacky musical instrument called the harmonium) $

3 5. Use quill pen 3

4 Two Themes 1. What constitutes a religion protected by the law is much broader than you might think 2. Its surprisingly easy for an Ee to create a viable religious discrimination claim Three Main Types of Religious Discrimination Claims 1. Failure to accommodate 2. Disparate treatment 3. Harassment 1. When Ee s sincerely held religious beliefs 2. Conflict with job requirements 3. The Er must reasonably accommodate the Ee s beliefs or show the available accommodations would impose an undue hardship on the Er 4

5 1. Sincerely held religious beliefs Do not have to be traditionally religious in nature moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views Do not have to be widely accepted Do not have to be logical or reasonable Do have to be sincerely held 2. Conflict between beliefs and job requirements a. Tuesday afternoon Sabbath b. Annual pilgrimage c. Wear hat on Tuesdays d. Display Franklin action figure e. Quill pen 3. Er must reasonably accommodate Ee s beliefs or show the available accommodations would impose an undue hardship What is a reasonable accommodation? Eliminates the conflict Interactive process required Er need only provide a reasonable accommodation, not the one the Ee preferred 5

6 When is an accommodation an undue hardship? US Supreme Court: When it would impose more than a de minimis cost or burden on the Er Good news under federal and WA law: Is lower standard than under ADA Not so good news under OR law: Is same significant difficulty or expense test used under ADA No bright line test examine the factors Hypothetical / speculative hardships not sufficient Reasonable accommodation / undue hardship? 1. Tuesday afternoon Sabbath 2. Annual pilgrimage 3. Wear hat on Tuesdays 6

7 Reasonable accommodation / undue hardship? 1. Tuesday afternoon Sabbath 2. Annual pilgrimage 3. Wear hat on Tuesdays 4. Display Franklin action figure 5. Quill pen Disparate Treatment Claim Sally must prove: 1. Belongs to a protected class 2. Subjected to an adverse employment action (AEA) 3. The AEA was taken because of Sally s religious beliefs a motivating factor 7

8 Harassment Claim Sally must prove: 1. Subjected to conduct because of religious beliefs 2. Conduct was unwelcome 3. Conduct so severe or pervasive that it created a hostile working environment Harassment Claim 3. Conduct so severe or pervasive that it created a hostile working environment a. Subjective test: Sally found conduct to be hostile or abusive b. Objective test: Reasonable person would find conduct to be hostile or abusive - Has to be very egregious - Severe vs. pervasive sliding scale Retaliation Claims Watch out for Retaliation claims! Sally doesn t have to be right reasonable, good faith belief is enough 8

9 How can you protect against religious discrimination claims? 1. Recognize when Ee is raising a religious issue 2. Engage in interactive process to discuss Ee s needs and potential accommodation options 3. Determine if those options impose an undue hardship 4. Train supervisors to avoid negative comments about Ees religious beliefs 5. Consider having a religious accommodation policy Thank you! David J. Riewald Bullard Law driewald@bullardlaw.com (503)