Given the religious holidays of Passover and Easter it seemed appropriate to remind of the evidence and legal requirements to have a strong religious discrimination case. It is critical for attorneys to protect the religious freedom guaranteed in our Constitution and statutes. Under Title VII of the Civil Rights Act of 1964, (42 U.S.C. § 2000e, et seq.), religious discrimination claims generally involve two primary theories: failure to accommodate and disparate treatment.

Failure to accommodate refers to a religious practice that an employer could reasonably accommodate but refuses to do so. Generally, a reasonable accommodation is one that does not cause a substantial burden overall to the employer's business. Some very common examples of possible reasonable accommodations involve job restructuring, flexible work schedules, modified or part-time schedules, reassignment, or modifying equipment or devices.

Disparate treatment is intentional discrimination where an employer treats a group of individuals differently because of their religion or religious practices. That could involve any employment practice inclusive but not limited to hiring, promotion, and wages. It generally requires demonstration that other individuals not in your religious group were treated more favorably.

Do You have Facts to Meet the Elements?

The necessary elements can be found in a very helpful case, EEOC v. Geo Grp., Inc., 616 F.3d 265 (3d Cir. 2010). To date it has been cited 77 times, including by one district court in the 11th Circuit, Leigh v. Artis-Naples, Inc., No. 2:22-cv-606-JLB-NPM, 2022 U.S. Dist. LEXIS 233789 (M.D. Fla. Dec. 30, 2022). In the Geo Group case, the employer which ran the prison employed several Muslim female employees. Geo Group had a dress code policy that did not permit hats or caps unless part of the uniform. It developed a new policy that also precluded scarves, hooded jackets or sweatshirts. This impacted Muslim women whose Islamic religious belief required them to wear a khimar. That is a head covering that covers the head, hair, neck, and often the upper chest, leaving the face visible. This no scarf policy was interpreted to include the khimar. In this case the elements of religious discrimination are easily seen:

1. First, there must be a sincerely held religious brief involved. Courts may presume this unless there is some obvious suspicion that it is not true or there is evidence to the contrary. The three Muslim ladies contended wearing the khimar was a religious practice. That was not questioned.

2. Second, there must be evidence of the employer's knowledge of the practice and the conflict involved. Three ladies at Geo Group sought an exception to the rule, which constituted a request for an accommodation.

3. Third, there must be an adverse action, such as discipline or termination, directly targeted toward religious beliefs or practices. In the Geo Group case, a memo from the employer was provided clearly precluding the khimar.

4. Fourth there must be a failure to reasonably accommodate. The ladies at Geo Group requested an exception to the rule but the employer refused. Instead, it offered the ladies to wear a hairpiece which the employer contended met Islamic requirements to cover hair. In a previous case, the Third Circuit found that the wearing of a khimar for police personnel could be prohibited. However, matters are decided on a case by case basis.

Can you Counter the Typical Defense?

Finally, it is also helpful to anticipate a common employer defense called the “undue hardship defense. That is basically an argument that the accommodation sought will involve significant difficulty for the employer or significant expense. The Geo Group case at 273 noted that “An ‘undue hardship' is one that results in more than a de minimis cost to the employer. Webb, 562 F.3d at 260 (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S. Ct. 2264, 53 L. Ed. 2d 113 (1977)).”

Here Geo Group convinced the court that there was an undue hardship because the scarf could be taken from the employee by inmates and then used as a restraint or to choke the female employee. Further the khimars were barred by the general “no headgear policy” adopted by Geo Group to prevent the smuggling of any contraband by employees into the facility. The court found these risks sufficient although it was a close case. It ruled against the EEOC which was acting on behalf of the Muslim women.

The elements for religious discrimination are not difficult. However, it can be very challenging to anticipate and overcome the undue hardship defense as evident with this case. Accordingly, a strong religious discrimination case will anticipate that defense and lay out several reasonable accommodations that would pose minimal hardship on the employer before proceeding with the lawsuit. It will help to require the employer to take a specific position on the requests before suit is filed.

At this time of year, let's remember the fragility of the right to religious freedom. Regardless of your own religious belief, if the rights of some are not protected, it may impact your freedom as well. Protecting that right is up to each of us.