Religion at work: A growing number of discrimination cases center on employees' beliefs

Tuesday, August 28, 2007 By Anya Sostek, Pittsburgh Post-Gazette

For the past 20 years, Samuel Cordes has made his living representing clients alleging discrimination from their employers for reasons such as age, race or gender. But in the last few years, his mix of cases has changed: an increasing proportion is now coming from religious discrimination.

"It's coming up a lot more," said the Downtown-based employment lawyer. "Until 2001, I bet I didn't have more than one a year."

Right now, Mr. Cordes is working on five religious discrimination cases. Nationally, religious discrimination charges by the U.S. Equal Opportunity Commission rose from 1,939 in 2000 to 2,572 in 2002 and have remained roughly at that level ever since. In 2006, the EEOC reported 2,541 charges of religious discrimination.

"There are far more of them than you read about," said John Myers, chair of the labor and employment department at Downtown-based law firm Eckert Seamans Cherin & Mellott. "In 25 years, I never had a case involving an Islamic employee and in the last couple of years, I've observed more decisions and personally picked up a handful of cases."

Under the Civil Rights Act of 1964, employers are prohibited from discriminating against employees because of their religion in hiring, firing or other workplace conditions.

The most traditional cases of religious discrimination in the workplace are those where members of minority religions sue because they have been turned down for a job after the subject came up in a job interview, or were fired from the job. But since Sept. 11, 2001, the claims are becoming more diverse.

"The ones we've seen in the post 9/11 world are a lot of harassment claims," said Mr. Myers, speaking mainly of cases involving Muslims. "It's absolutely no different, legally, than sexual harassment. If they bring it to the employer's attention, the employer has a responsibility to investigate."

In the last few years, Mr. Cordes said he's also been getting a steady stream of cases from Christians and Jews involving accommodations for their religious beliefs. In one such case last year, a born-again Christian woman in Fayette County sued her employer, the Aldi grocery store, because the store scheduled her to work on Sundays even though she told them that it was against her religious beliefs. The case is pending in federal court.

"If we ran a search on just Sabbath issues, there's quite a lot of them, surprisingly," said Mr. Cordes.

"They're much more common than you would think. In the last 10 or 20 years, we've seen a lot more Sunday openings, and it runs into those people's beliefs."

Such cases of accommodation for time off also occur for Jews who observe a Saturday Sabbath and for Muslims who require short prayer breaks during the day, he said.

James Thomas, a partner with the Pepper Hamilton law firm, said the most common questions from the employers that he represents are about accommodating requests for individual religious holidays, such as Yom Kippur or Good Friday, for which an employee wants to take off work.

Under the law, an employer is required to accommodate the sincerely held religious practices of employees as long as doing so does not pose an undue hardship to the business. The threshold for undue hardship is fairly low, said Mr. Myers, and can be reached if the accommodation would cost the business more than ordinary administrative costs or imposes on the jobs of other employees.

For example, said Mr. Myers, an employer would not have to accommodate the request of an employee not to work Sundays if the employer would then have to hire someone else solely to fill that shift, but would have to accommodate the request if there were other employees ready and willing to switch shifts.

The rules also are different for religious institutions, which can have religious requirements for most positions, and for government agencies, which have to allow a greater degree of religious freedom.

Interestingly, the sincerely held religious belief in a religious discrimination case does not have to be one associated with a traditional religion. In one California case, a vegan bus driver won a judgment against a county transit agency for firing him after he refused to hand out "free hamburger" fliers for a fast food restaurant.

"Defining whether a religion is involved or not can be difficult," said Mr. Thomas, noting that the issue could come up in cases of dress code or facial hair rules as well. "They're never straightforward. They're all a gray area."