September 7, 2010

RECENT RELIGION DISCRIMINATION RULINGS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

There were four interesting religion cases in August, each of which was decided in favor of the defendants.

In Xodus v. Wackenhut [2010 U.S. App. LEXIS 17917, 8/27/10], Xodus, who was interviewed for a security guard position, was told by a manager that he would have to cut his dreadlocks to get the job. Xodus told the manager it was against his “belief”, and that he was suing another employer for that reason. The district court granted summary judgment for Wackenhut on grounds that the manager was not properly informed of that the “belief” was based on religious reasons, and the 7th Circuit affirmed. The moral of this story is that an employer cannot be blind-sided; the request for accommodation for religious reasons must be clearly stated. The same principle applies in ADA cases.

In EEOC v. GEO Group [2010 U.S. App. LEXIS 15973, 8/2/10], the GEO Group, a private operator of prisons, knew that Muslim females are required to wear head scarfs (or khimars) for religious reasons. However two prison wardens testified it would be an undue hardship to allow this because of safety reasons (e.g., khimars could conceal the identity of the wearer and could be used against prison employees in an attack.) GEO won a summary judgment and the EEOC appealed the undue hardship ruling. However, the summary judgment was upheld in a 2-1 ruling by the 3rd Circuit. The dissenting judge agreed with the EEOC, and argued that a reasonable jury could find that allowing female employees to wear Khimars is not an undue hardship. I would expect the EEOC to continue to prosecute such cases.

In Mitchell v. University Medical Center [2010 U.S. Dist. LEXIS 80194, 8/9/10]. Mitchell, an operating room nurse, calculated the day the earth would end and spread the word to her co-workers on a daily basis. The co-workers complained and Mitchell was instructed to cease her discussions of religion in the workplace. Mitchell claimed she suffered harassment and discrimination for her sincerely held religious beliefs, but District Court Judge John G. Heyburn II granted summary judgment for the hospital. Judge Heyburn ruled that the instruction to stop discussing religion in the workplace did not constitute an adverse employment action, and that it would be an undue hardship on the hospital to allow such discussion to continue because it would interfere with the terms and conditions of employment of Mitchell’s co-workers.

And in Spencer v. World Vision [2010 U.S. App. LEXIS 17602, 8/23/10], three employees were fired for allegedly denying the “Deity of Jesus Christ.” Under Title VII exemptions, churches and church-affiliated institutions are permitted to base such decisions on religious reasons. The question in this case was whether World Vision is entitled to the exemption. World Vision describes itself as a nonprofit Christian humanitarian group, but it is clearly not affiliated with any specific church. Nevertheless, the 9th Circuit supported its exemption in a 2-1 ruling in which the dissenting judge opined that majority “improperly expands the narrow Title VII” because “ Congress intended only that churches and institutions with extremely close ties to organized religion would be free to discriminate in employment based on religion.”

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