Articles Posted in Religious Discrimination

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Last week, on July 6, 2017, the U.S. District Court for the District of Minnesota granted summary judgment in favor of defendant in EEOC v. North Memorial Health Care, finding that a Minnesota hospital had not violated Title VII of the Civil Rights Act of 1964 (Title VII) when it withdrew a nurse’s conditional employment offer after she requested a religious accommodation. The court held that the act of requesting a reasonable accommodation did not, in and of itself, constitute protected activity under Title VII. Consequently, North Memorial’s withdrawal of plaintiff’s job offer, as a matter of law, could never give rise to a Title VII retaliation claim. This decision contradicts the Equal Employment Opportunity Commission’s (EEOC) guidance, which includes requests for religious accommodations as protected activity.

Emily Sure-Ondara, the plaintiff in North Memorial, is a nurse and a practicing Seventh Day Adventist (a Protestant Christian denomination). In November 2013, Sure-Ondara was recruited for a registered nurse position at North Memorial. She applied for the job, and, after a series of successful interviews, North Memorial extended her a conditional offer of employment. According to the terms of the conditional job offer, Sure-Ondara was scheduled to work the night shift—11:00 p.m. to 7:00 a.m.—and weekends, every other weekend.

Upon receiving her proposed schedule, Sure-Ondara contacted North Memorial’s Human Resources (HR) to request a religious accommodation. As a Seventh Day Adventist, Ms. Sure-Ondara observes the Sabbath on Saturdays and was consequently not able to work on Friday nights due to her religious obligations. HR responded that the North Memorial union agreement required all nurses to work every other weekend and that, if Sure-Ondara would not be able to work the proposed schedule, the hospital might “need to offer the position to another candidate.” Sure-Ondara told HR that she would “make it work” and offered to either trade her Friday night shifts with another nurse or—if she could not find a substitute—come in to work anyway, despite her religious obligations.

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Harrison Paige

In Equal Employment Opportunity Commission v. Consol Energy, Inc., a jury found that Consol Energy, Inc., violated Title VII of the Civil Rights Act of 1964 (Title VII) by constructively discharging Beverly Butcher, Jr., after he requested a religious accommodation related to his use of Consol’s new biometric scanning technology. Consol filed post-verdict motions, all of which were denied, then appealed to the U.S. Circuit Court of Appeals for the Fourth Circuit. The Fourth Circuit found in favor of Butcher, finding no fault in the logic or judgment of either the jury or the West Virginia district court.

Butcher worked for Consol for almost 40 years before the company implemented a biometric hand scanner, intended to help the company more efficiently track its employees’ hours worked. Butcher, who is a devout evangelical Christian, was uncomfortable with the new system because he subscribes to a literal interpretation of the authority of biblical scriptures. Butcher explained to Consol that his adherence to the Book of Revelation’s verses regarding the “Mark of the Beast” prohibits him from using a biometric hand scanner because—although the scanner does not imprint any physical mark on the individual using it—using the scanner would nonetheless mark Butcher as a supporter of the Antichrist. Butcher requested a religious accommodation from Consol after the system was implemented, writing a detailed letter that cited Bible verses and explained why he was not comfortable using the scanner. Consol refused Butcher’s request and required him to obtain a letter from his church supporting the requested accommodation.

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On May 9, 2017, the U.S. Court of Appeals for the Second Circuit denied summary judgment in Ahmed v. Astoria Bank, where plaintiff Sherin Ahmed brought religion, race, and national origin discrimination claims against her former employer. The Second Circuit held that the district court had erred in concluding that Ahmed had not presented evidence of discrimination and harassment sufficient to meet the threshold for a hostile work environment claim under Title VII of the Civil Rights Act of 1964 (“Title VII”). As such, the court vacated the lower court’s granting of summary judgment, allowing the case to proceed to trial.

Ahmed, who is originally from Egypt and immigrated to the U.S. in 2001, is a practicing Muslim woman and wears a hijab as part of her religious observance. In 2013, Ahmed interviewed for a quality control analyst position at Astoria Bank, a Long Island City­-based bank serving the New York metropolitan area, and was hired, conditional upon a 90-day probationary period. But, she alleges, Astoria Bank discriminated against her based on her race, religion, and national origin beginning as early as the day of her interview, when Anthony Figeroux, a Vice President at the bank, told her that she and two other Middle Eastern employees were “suspicious” and that he was glad he was “in the other side of the building in case you guys do anything.”

The offensive comments and discriminatory treatment continued throughout Ahmed’s employment; for example, Figeroux “constantly” told Ahmed to remove her hijab, which he referred to derisively as a “rag,” and Ahmed’s direct supervisor refused to allow her to take time off to observe a Muslim religious holiday. Astoria Bank abruptly terminated Ahmed’s employment at the end of her 90-day probationary period, purportedly because of “poor performance,” though her supervisors had never before raised any performance concerns to her. Ahmed complained to the bank that she believed the firing was discriminatory and, shortly afterward, filed suit in the U.S. District Court for the Eastern District of New York. Astoria Bank moved for summary judgment on all of Ahmed’s claims, which the district court granted; Ahmed then appealed the dismissal of her Title VII hostile work environment claim to the Second Circuit.

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Lucie Rivière and Edgar M. Rivera, Esq.

On Wednesday, March 2, 2016, The Harman Firm, LLP published the first part of its three-part article titled Microaggressions. The second part, which follows below, discusses practical examples of microaggressions and their impact on those subjected to them.

Microaggressions are hidden messages that are sent: (i) verbally (“You speak good English” to Latino or Asian coworker, suggesting that Latino and Asian Americans, because of their ethnicity, are foreigners and not ‘real Americans,’ regardless of their birth place); (ii) nonverbally (clutching one’s purse more tightly when a black man passes on the sidewalk, conveying the belief that Black people are prone to crime and are “up to no good”) and; (iii) environmentally (using American Indian mascots during football games, suggesting that American Indians are savages or otherwise outsiders and demeaning their culture and traditions).

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Yarelyn Mena

On December 2, 2015, the United States District Court for the Northern District of Illinois granted summary judgment to Defendant Elite Protection and Security, Ltd. (Elite), dismissing Plaintiff David Schwingel’s religious discrimination claim against Elite. Elite terminated Mr. Schwingel after he placed a “Men only” sign on a chair he built and then harassed a female co-worker for sitting on the chair. Mr. Schwingel claimed that his termination was due to him being a Messianic Jew.

Since 2010, Mr. Schwingel worked for Elite as a security cargo screener at the O’Hare International Airport in Illinois. During his employment, Mr. Schwingel requested a religious accommodation to work Monday through Friday—unlike most other employees in his position, who worked Tuesday through Saturday—in order to have the Jewish Sabbath day, Saturday, off. Elite granted the request. On May 14, 2011, Elite removed all of the chairs from the security screening stations at its facility, as the cargo screeners did not need the chairs to perform their job functions. For reasons unknown, Mr. Schwingel erroneously believed that Elite removed the chairs because they had been stained from women’s menstruations; he viewed the chairs’ removal as related to Biblical passages concerning the separation of the sexes during a woman’s menstrual cycle. Mr. Schwingel shared his beliefs with one coworker and asked a supervisor for permission to use one of the chairs, but Elite denied his request. In response, he built his own chair from materials in the garbage and attached a cardboard sign to it on which he handwrote:

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Jennifer Melendez and Edgar M. Rivera, Esq.

On September 1, 2015, a Muslim flight attendant for ExpressJet Airlines. Inc. (ExpressJet), Charee Stanley, filed a charge with the Equal Employment Opportunity Commission (EEOC) against ExpressJet alleging religious discrimination after ExpressJet suspended her for refusing to serve alcoholic beverages to passengers. The EEOC is responsible for enforcing the federal laws that prohibit, among things, discrimination against a job applicant or an employee based on their religion.

During Stanley’s three-year employment with ExpressJet, she converted to Islam, but only learned last year that Islam discouraged both consuming and serving alcohol. Stanley requested that ExpressJet provide her with a religious accommodation to not serve alcohol to the passengers. Title VII of the Civil Rights Act of 1964 requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would be more than a minimal burden to the operations of the employer’s business. ExpressJet granted Stanley’s request, directing her to organize an arrangement with the other flight attendant on duty so that she did not need to serve alcohol.

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Yarelyn Mena and Owen H. Laird

When the Supreme Court of the United States affirmed the right for same-sex couples to marry, the LGBT community won a long and hard-fought battle for marriage equality. The Human Rights Coalition (HRC), one of America’s largest civil rights organizations committed to ensuring legal rights for the LGBT community, continues the struggle for LGBT rights by supporting the Employment Non-Discrimination Act (ENDA), legislation aimed at protecting the LGBT community from discrimination in the workplace. ENDA would make it illegal for employers to discriminate against potential or current employees based on their sexual orientation or identity.

ENDA resembles Title VII of the Civil Rights Act of 1964 in its purpose to prevent and eradicate discrimination of protected classes in the workplace. The HRC supports passing ENDA because there “is no federal law that consistently protects LGBT individuals from employment discrimination; there are no state laws in 29 states that explicitly prohibit discrimination based on sexual orientation, and in 32 states that do so on gender identity.” Currently, in the states that do not offer protection to LGBT workers, employees and prospective employees face routine and often legal discrimination because of their sexual orientation or gender identity. ENDA will provide LGBT workers with nationwide protection from employment discrimination, filling in the gaps left by state laws. Protection against sexual orientation and gender identity based discrimination is already widespread. According to a report by the HRC, 8 out of 10 voters already believe that discrimination based on sexual orientation and gender identity was illegal, showing that ENDA would provide the legal framework for rights that most Americans already believe exist.

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Ciera Ambrose and Edgar M. Rivera, Esq.

On June 1, 2015, in EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court of the United States (SCOTUS) ruled against retailer Abercrombie & Fitch Stores Inc. (Abercrombie), holding that Title VII of the Civil Rights Act of 1964 (Title VII) only required a plaintiff to show that an adverse employment decision was motivated by unlawful discrimination, and not that the employer had actual knowledge of plaintiff’s status as a member of a protected class.

Samantha Elauf, a Muslim teenager, applied for a sales-associate position at Abercrombie. She alleged that Abercrombie refused to hire her because she wears a religious headscarf. As a result, the EEOC brought religious discrimination charges under Title VII, which prohibits a prospective employer from refusing to hire an applicant to avoid accommodating a religious practice that it could accommodate without undue hardship. The EEOC prevailed in the District Court of the Northern District of Oklahoma, but the Tenth Circuit Court of Appeals reversed, holding that a plaintiff must show that a defendant had actual knowledge of plaintiff’s need for religious accommodation to prevail on his or her claim. On appeal, Abercrombie argued that an “employer cannot be liable under Title VII for failing to accommodate a religious practice unless the applicant (or employee) provides the employer with actual knowledge of [her] need for an accommodation”; therefore, Abercrombie could not be liable because it claimed not to have known that Ms. Elauf wore her headscarf for religious reasons. SCOTUS granted certiorari.

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Ciera Ambrose and Edgar Rivera, Esq.

Recently, the Supreme Court of the United States (“SCOTUS”) heard oral argument regarding whether an employer can be liable under Title VII of the Civil Rights Act of 1964 (“Title VII”) for refusing to hire an applicant based on a religious observance and practice where the employer had no actual knowledge that a religious accommodation was required. In EEOC v. Abercrombie & Fitch Stores, Inc., plaintiff Samantha Elauf, a Muslim teenager, applied for a sales-associate position at Abercrombie & Fitch Stores, Inc. (Abercrombie) and alleged that Abercrombie refused to hire her because she wears a religious headscarf.

Abercrombie, a national chain of “east coast preppy” clothing stores, requires its employees to comply with its “Look Policy” (the “Policy”), which forbids black clothing and caps. If a question arises about the Policy during an interview, or an applicant requests a deviation from the Policy, the interviewer must contact the corporate human resources department, which then determines whether an accommodation should be granted. Ms. Elauf wears a headscarf every day, and did so in her interview, but she neither mentioned her headscarf during her interview nor indicated that she would need an accommodation from the Policy. The interviewer contacted the district manager who directed the interviewer to lower Ms. Elauf’s rating on the appearance section of the application because she wore a headscarf, which resulted in her not being hired.

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It is common knowledge that the sustained political activism of Martin Luther King, Jr. over the decade leading up to the passage of the Civil Rights Act of 1964 (CRA) were crucial to its passage . Perhaps somewhat less well-known is that the Act created the Equal Employment Opportunity Commission (EEOC), or that about 12,000 to 20,000 federal civil cases are filed each year alleging employment discrimination in violation of Title VII of the CRA.

These facts alone reveal why King left an indelible mark on our nation’s labor laws. With the passage of the CRA, it became illegal for employers to discriminate against employees on the basis of race, color, religion, sex, or (later) age.

Most people also do not know that Dr. King was extremely active in defense of a different law, the National Labor Relations Act (NLRA), which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages. King spent much of his time joining, speaking to, and leading labor actions; in fact, this is what he was doing in Memphis when he was killed.

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