by: Lauri F. Rasnick and Margaret C. Thering*
Title VII of the Civil Rights of 1964 (“Title VII”) not only prohibits employers from discriminating against employees or prospective employees because of their religion, but it also requires employers to “reasonably accommodate” the religious practices of employees provided that such reasonable accommodations do not cause the employer “undue hardship.” According to the EEOC Compliance Manual, reasonable accommodations may include, among others, scheduling changes, voluntary shift swaps, lateral transfers, and other workplace policy/practice modifications.
The topic of religion can pose tricky issues for employers. Often, issues involving religion come up before the employment relationship is even cemented. The EEOC seems to be taking a significant interest in such matters, as it recently filed two lawsuits against national companies for religious discrimination against prospective employees.
On March 3, 2012, the EEOC filed a Title VII discrimination case against Convergys in the U.S. District Court for the Eastern District of Missouri. EEOC v. Covergys Corp., (E.D. Mo. 2011).
Convergys placed an advertisement stating that applicants for a customer service position should be able to work a flexible work schedule and overtime. A Jewish applicant informed the company’s recruiter during an interview that he would not be able to work on the Jewish Sabbath. The recruiter allegedly responded that if applicant could not work Saturdays, the interview was over.
The complaint alleged that the company violated the law by refusing to hire the Jewish applicant or other employees based on their refusal to work on Saturdays because of their religious beliefs. The EEOC sought, among other things, injunctive relief to enjoin Convergys from refusing to hire on the basis of religion and denying reasonable religious accommodations to its employees. The EEOC claimed that given the large size of the call center (approximately 500 employees), it would not be impossible to give an employee an alternative work schedule. According to the EEOC, the company violated Title VII by refusing to hire the applicant without even discussing possible accommodations for his religion.
Convergys settled the case by agreeing to pay $15,000 and entering into a two-year consent decree which obligates the company to make sure that its recruiters are trained on religious discrimination. The company must also provide a notice to all future applicants that accommodations may be available for their religious beliefs.
In June 2012, the EEOC filed another religious discrimination complaint against Voss Electric Co. d/b/a Voss Lighting In this case, one of the company’s supervisors listed an employment opportunity for Voss on the Internet board of the First Baptist Church of Broken Arrow. An applicant who heard of the opening through a client who was a member of the church applied for the job. After a successful first interview, the applicant’s name was passed on to the branch manager who communicated with the applicant at length about his religious affiliations and ties to First Baptist Church of Broken Arrow. The branch manager asked the applicant to identify every church he recently attended, where and when the applicant was “saved,” and whether the applicant was willing to come into work early to attend Bible study. The branch manager openly disapproved of the applicant’s (negative) answers, and the position was not offered to him.
As the open position involved no religious duties whatsoever and the EEOC believed that the job was not offered because of the applicant’s religious beliefs, it found the company’s decision not to hire the qualified applicant discriminatory. The EEOC is therefore seeking to enjoin the company from refusing to hire on the basis of religion and denying reasonable religious accommodations in addition to monetary damages.
The Take-Away for Employers
Both of these recent lawsuits should remind employers to put in place non-discriminatory policies and procedures at the recruitment stage. Employers should:
- Train recruiters and other personnel conducting interviews about what questions can and cannot be asked and what considerations should be made in the hiring process.
- Interviewers cannot ask any questions about a potential employee’s religious beliefs, affiliations, and/or current or future practices.
- Interviewers can ask if potential employees are available to work on weekends or overtime but cannot ask whether employees observe specific religious holidays.
- Not automatically deny positions to applicants who cannot work the required/preferred hours because of their religious beliefs – employers must consider alternatives and engage in an interactive process.
- Use various methods of recruiting.
- Adopting recruitment practices, such as word-of-mouth recruitment, that have the purpose or effect of discriminating based on religion can violate Title VII and state and local laws.
- Advertising on church or other religious bulletins could have the effect of discriminating against other religions, especially if other recruitment channels are not used.
- Establish written objective criteria for evaluating candidates and apply the criteria consistently.
- Publish policies prohibiting religious discrimination and providing that the company accommodate religious accommodation requests from applicants and employees.
*Anisha Mehta, a summer associate, assisted in the preparation of this blog posting.