Belief, business and boundaries: Seminar looks at religion in the workplace

By Steve Thorpe Legal News Have a policy, let everyone know what it is and then stick to it. That was the essence of the advice three attorneys offered to business people on the subject of faith in the office. In the seminar "Employers Shalt Not Discriminate: Religion in the Workplace" attorneys from Dickinson Wright PLLC offered suggestions for employers to avoid pitfalls and minimize company risk. The event was conducted Thursday, Oct. 11, at Automation Alley in Troy. Title VII of the Civil Rights Act of 1964 and Michigan's Elliott-Larsen Civil Rights Act prohibit discrimination on the basis of religion and require employers to reasonably accommodate the religious practices of employees, unless doing so would create an undue hardship on the employer. Dickinson Wright attorneys George Butler III, Kathryn Wood, and Jennifer Newby covered questions and issues as diverse as: * How do you determine if an employee's religious belief is legitimate? Should you try? * An employee wants to wear something that seems outlandish to you because of a religious requirement. Is that OK? * Marijuana or peyote are sacraments of an employee's religion. Can they partake in the break room? * Carrying a weapon, like a ceremonial dagger, at all times is part of an employee's religion. But it conflicts with the company's security rules. What to do? The religious accommodation an employee requests must be based on a "sincerely held" belief. "You can't just announce that, starting tomorrow, I believe I should have a two hour lunch break," Newby said. "The employer has no duty to accommodate that. "But a religious practice doesn't have to be based on an established mainstream religion, either," she added. "For example, Wiccans are recognized and, to the extent that you can accommodate their religious practices, you have an obligation to do so." Newby also pointed out that belief in a supreme being isn't required. Atheists are also protected under Title VII. Wood added that, "Veganism and other 'moral systems' fall under these protections, as far as the EEOC is concerned." There are limits, however, to what the courts will accept as a religious belief. "There was a case out of the Ninth Circuit where the court found that there was not a sincere religious belief," Newby said. "It was a couple engaged in prostitution. When they were arrested, their defense was that the state's prostitution laws violated their free exercise of religion. They called their religion 'The Church of the Most High Goddess' and that they were the high priest and high priestess of the faith. One of the tenets of the church was that a tithe must be paid to engage in sexual acts with the clergy. The court basically said, 'Nice try.'" "What is a religion? That's really the 'threshold issue' here," Butler said. "That will turn on the subjective and heartfelt beliefs of the employee." But even long established religious practices don't necessarily have to be accommodated if they run afoul of the law or stated company policies. A number of southwest U.S. Native American tribes incorporate hallucinatory peyote "journeys" into their religious practices and marijuana is a sacrament to Rastafarians. There is no duty for a company to permit those drugs in the workplace. "Medicinal marijuana" is also becoming an issue but, because it has no religious implications, is usually not a problem for employers to prohibit. The ceremonial dagger that must be carried by Sikhs violates the "no weapons" policies of most companies and, again, a company can ban them from the premises. As an accommodation, some companies have allowed the wearing of the "kirpan," as it's called, as long as it is glued into the sheath and cannot be drawn. The old axiom, "ignorance is no excuse" comes into play in some cases. Wood talked about a case where a company was accused of discriminating against a Muslim manager because of remarks made by employees who may not of known of his faith or that their remarks would offend. The employee was a relatively new plant manager who had been put on a "performance improvement plan" because a company was unhappy with his work. "At some point, his supervisor told him, and I quote, that he wanted to have a 'Come to Jesus meeting.' There's the lawsuit," Wood said. "The supervisor wasn't inviting him to join the Christian religion. He meant, 'We need to get serious and talk about your lack of performance.'" To make matters worse, another employee offered to share his lunch with the eventual plaintiff, probably not knowing he was causing offense. "A coworker, who I believe didn't know anything about the Muslim religion, offered him some pigs feet that he had brought in. The coworker with the food thought he was being kind by sharing, but deep offense was taken." Butler emphasized that a clearly stated company policy, preferably based on the law, helps inoculate companies from claims. "The way to anticipate the issue is that you've got to establish a policy that addresses it," he said. "In that policy you have to make it incumbent on the employee to 'report or ask.' Report any incident that the employee believes is discriminatory and ask for any accommodation. What you don't know can only hurt you. Shift the burden in your policy so that the employee must come forward." The final pieces of the puzzle are to communicate effectively and train your middle managers. A policy won't be effective if no one knows what it is. "As you're doing your normal training of supervisors, you need to remind them of the religious aspects of policy and to be careful how what they say will be received by their subordinates," Wood said. "It's an important component to work into your training." Published: Thu, Oct 25, 2012

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