According to the Equal Employment Opportunity Commission, the number of charges alleging religious discrimination filed with the agency increased by a whopping 100% between the years 1992 and 2007. Accompanying this increase is the ongoing expansion of the definition of “religious discrimination,” as interpreted by the courts around the country. The recent case of EEOC v. Starlight, LLC, 2008 U.S. Dist. Lexis 60257 (E.D. Wash. Aug. 4, 2008) exemplifies this noticeable judicial shift favoring the plaintiffs in religious discrimination suits.
Harper involved an African-American Muslim plaintiff who worked for the defendant restaurant as a waitress. As part of her religion, Ms. Harper wears a headscarf. This practice led Doris Morgan, one of the restaurant supervisors – notably, Ms. Harper’s indirect supervisor – to make several inappropriate, albeit limited, comments. At one point, Ms. Morgan asked Ms. Harper “what [was] the deal with that thing on [her] head” and said that she did not “understand the whole Muslim faith.” On another occasion, outside of the plaintiff’s presence, Ms. Morgan mentioned that she felt hesitant about approving the plaintiff’s promotion to a more lucrative shift because she was unsure that “the head dress and her being Muslim … [was] what we want in the bar.” When Ms. Harper heard about the comment from another employee and confronted Ms. Morgan, Ms. Morgan blurted out, “It’s not – it wasn’t about the race, it was more about your scarf thing … You know how people in Ellensburg are? They’re not going to want to see, you know, a girl like that on the cocktailing shift … It was a business decision, it was nothing against you.”
Ms. Morgan stated that no later than these words had come out, she regretted saying them. In an apparent attempt to make up for what just transpired, she immediately offered Ms. Harper the promotion, but the gesture came too late and, understandably, appeared disingenuous. Ms. Harper declined the promotion and resigned the same day. Ms. Morgan returned to her office “in a near frantic state.” She could not believe that she said what she said and suspected that her comment “could get her in trouble.” She probably could not, however, suspect the form this trouble would take and how extensive it would be. As often the case in these kinds of situations, it was Ms. Morgan’s employer that ended up bearing the brunt of the costly, protracted legal battle that ensued and culminated in a Washington federal court’s recent decision that Ms. Harper’s case could proceed to a jury trial.
Though Ms. Morgan’s comments were certainly ignorant and inappropriate, they do not approach the epithets and insults that typically characterize a successful discrimination claim. Nevertheless, the federal court held that Ms. Morgan’s comments constituted “more than sufficient” direct evidence of religious discrimination for the case to go forward. The court further held that Ms. Harper could proceed with her claim of constructive discharge, i.e., that the work environment became so intolerable that she was compelled to resign. Admitting that this latter decision was a “close” one, the court still concluded that a reasonable fact finder could well find that the plaintiff was driven from the workplace based on Ms. Morgan’s several comments.
Harper should serve as a wake-up call to employers that religious discrimination is an extremely sensitive, current topic both for the workplace and the courts. All it takes is a few ignorant or inappropriate comments and an employee is armed with an actionable claim. Even where the claim eventually proves to lack merit, the road to such an outcome can be long, expensive and filled with uncertainty. This reality requires employers to revisit their policies and practices relating to the treatment of religious diversity in their workplaces.
Specifically, employers should implement policies that strictly prohibit discrimination of any kind, including based on religion, and provide a detailed, effective complaint procedure for employees to report any concerns of religious discrimination without any fear of retaliation. Importantly, having such a policy is only the beginning.
An effective policy is one that is properly enforced. To that effect, employers should require their employees to review the non-discrimination policy during new hire orientation and to sign an acknowledgement form confirming their receipt, review and agreement to abide by the policy. In addition, employers should conduct regular retraining sessions for members of management and for other employees. Managers should know how to recognize religious discrimination in the workplace when they see it and how to respond to it promptly and effectively with a properly conducted investigation followed by, where necessary, appropriate corrective action. Other employees, for their part, should have no doubts that their employers take their commitment to non-discrimination seriously and they should feel comfortable bringing their concerns immediately to the attention of the appropriate person. If you have a question about your policies, you should consult with legal counsel, as nothing can help an employer more in minimizing the possibility of discrimination claims and in defending against any claims that do arise than a solid, working non-discrimination policy and practices.