RELIGIOUS HARASSMENT IN THE WORKPLACE
(The Alliance for Magical and Earth Religions (AMER) has prepared
the following excellent list of recommendations to cover instances of religious
harassment in the workplace. It was written to help followers of Magical and
Earth- centered religions in the US workplace. But it should be useful to all
victims of harassment everywhere.)
Some Day You May Be Harassed Because of Your Religion
Someday you may be fired from a job because someone doesn't like your religion.
You may have coworkers who constantly harass you, or try to convert you to their
religion. Perhaps a supervisor will express disapproval of your religion or make
it clear to you that you would get better treatment if both of you shared the
same faith.
If this or any other form of religious discrimination or harassment ever happens
to you, then you will be faced with a difficult set of decisions, starting with
this: What do you want? Do you just want the harassment to stop? Do you want a
transfer? If you were fired, do you want your old job back? Do you want the
harassers disciplined? Should you try for compensation for lost wages or other
damages?
Harassment and Discrimination Defined
Before you can make these decisions, you need to understand the law about
discrimination and harassment. There is no official definition of harassment,
but it can be described as being singled out because of your religion for
mistreatment, particularly if it makes it harder to do your job. If you are
harassed by your superiors, this is discrimination.
US Workers Employed "At Will"
According to a 19th Century Supreme Court ruling, commonly called "Employment at
Will," your employer may hire, fire, promote, or demote you at any time, for any
reason , and without stating a reason, unless you have a written contract that
states otherwise. There are generally four exceptions to this: (1) for your age,
gender, ethnic or national origin, religion or any other reason mentioned in the
civil rights acts; 2) for filing workplace safety complaints as covered by the
Occupational Safety & Health Act; (3) for attempting to organize a union,
protected by the National Fair Labor Practices Act; or (4) for any disability
protected under the Americans with Disabilities Act.
The Burden of Proof is On YOU.
However, because your employer does not have to give a reason for his or her
action, the burden is on you to prove that you were fired, mistreated, or not
hired was for one of the reasons given above.
Interview? Say "I Prefer Not to Discuss Religion at Work."
What should you do if you are asked questions about religion, either on a job
application or during an interview? You should remember that there is no legal
reason for an employer to ask you this; we suggest that you leave that field
blank, or if asked, answer only, "I prefer not to discuss religion at work"--and
then stick to it. If they don't hire you, you may have a perfect case for a
religious discrimination lawsuit, so contact the nearest office of the Equal
Employment Opportunities Commission (EEOC) or equivalent agency immediately.
Collect, Preserve Any Evidence.
In the event you are fired or harassed on the job, unless you can produce
documentation that can be presented in court that your mistreatment was
religious discrimination or harassment, you do not have a case. Therefore, if
you think there is any risk that your employment situation may lead to a lawsuit
or formal complaint, the most important thing you can do is to collect and
preserve evidence.
Take Notes in a Spiral-Bound Notebook
Buy a spiral-bound notebook, and after every incident that you consider to be
harassment or discrimination, discreetly write down the name of the person who
harassed you, where and when it happened, what they did or said, and the names
of everyone who saw or heard it. It would be sensible to keep the existence of
this notebook private. If you can do so without calling attention to it, you
might want to use a tape recorder. In most states, it is legal to tape any
conversation that you're part of. If you do end up in court, your attorney will
determine whether or not your tapes can be used as evidence.
Always Get Copies of Your Personnel File
Whether or not you are being harassed now, try to get a copy of your personnel
file at least once a year. You may have no actual right to a copy, but many
employers will give you one if you ask. After all, if you have received
favorable reviews until your religious trouble started, it might help to be able
to prove it.
Coworkers May Not Be Trying to Hurt You
In most cases, the people you work with are not really trying to hurt your
feelings or make you angry. They probably just don't know any better. They may
be trying to make a joke or convert you to their point of view. Many people are
simply more comfortable around persons who share their value system. If you
quietly and privately explain what they have said or done that offended you, and
how it made you feel, they'll probably stop. You need to be discreet and speak
to them alone, with no one else around.
Will a Little Gentle Humor Lower the Tension?
If the situation becomes tense, consider a little gentle humor to lower the
tension. Try not to embarrass them or put them on the defensive. It is better to
act hurt than angry. If you are accused of having no sense of humor, ask them
for example, if they would tell gas chamber jokes or Holocaust jokes to Jews.
DON'T Gossip, Gloat, or Argue Religion
Remember, your complaint is with that person alone. No matter how tempted you
are, don't complain to your coworkers about your treatment. If the offender
apologizes, don't gloat. It is important to treat any apology as sincere. You
must also remember that you are not trying to get into theology discussions, but
rather to stop any harassment. The issue here is harassment, not whose religion
is "better" or more "right."
If Informal Means Fail, Consider a Formal Complaint
Most disputes can be resolved through such informal means. If, however, all of
your attempts to work things out in a reasonable, adult manner have failed, then
you may want or need to appeal to a higher authority.
Winning Won't Guarantee You a Pleasant Place to Work.
If informal discussions do not resolve the matter then you have a difficult
decision to make. As soon as you start a formal complaint the atmosphere is
going to get much more unpleasant. If you think you can find work elsewhere or
if you can endure the present situation, you might be better off doing so. The
law may be on your side but winning a formal complaint or lawsuit won't
guarantee you a pleasant place to work. Of course, if you don't challenge
religious discrimination or harassment, it will keep happening. This is a
decision that nobody can make for you.
Go to Your Supervisor or to Personnel. Don't Go Over Your Boss's Head.
If you are going to file a harassment complaint about a coworker, the first
formal conversation should be with your supervisor. If you need to file a
harassment complaint about your supervisor, your conversation should be with
Personnel or Human Resources. Don't jump the chain of command and go over your
boss's head. If your supervisor wasn't very helpful, see if your company has a
policies and procedures manual, and then follow its advice on how to file a
complaint. If not, ask to see whoever is in charge of personnel. When in doubt,
go to them--it is their job to assist you.
If You Are In a Union, Talk to Your Union Rep.
There is an important exception to the previous two paragraphs: If you are a
member of a union, your contract may provide you with specific rights, remedies
and procedures to follow. In this case your first conversation should be with
your shop steward or other union representative.
Call the EEOC Before the 300 Day Deadline.
If it has been nearly 300 days since you were last harassed or discriminated
against and you still have received no satisfaction through informal or
corporate channels, call the nearest office of the United States Equal
Employment Opportunity Commission (EEOC) and explain your situation to an
investigator. Ask the investigator for advice. If he or she recommends that you
file a formal complaint, ask whether you need to file separately with your
state's equivalent of the EEOC. You do not have to wait until the corporate
procedures have been exhausted. In most cases there is a 300 day deadline for
filing a complaint with the EEOC or state agency.
Use Informal Means, Formal Complaint, and EEOC
First!
If you have not exhausted informal means, made a reasonable attempt at using
corporate remedies, gone completely through the EEOC's procedures and their
complete appeals process, then filing a lawsuit would be futile.
Now You Need a Lawyer if You're Going to Go On.
If you have reached this point and gotten no relief, you must retain a lawyer if
you want to go any further. You and your lawyer need to determine what your
objectives will be in filing a lawsuit. Remember, you are not entitled to the
free services of an attorney even if you have been fired from your job. You are
filing the complaint, and your employer is the defendant. And remember: Because
the employer is the defendant, the burden of proof is on you!
Help Finding a Lawyer
If you need help finding an attorney contact your state's Bar Association's
Lawyer Referral Service which is listed in the phone book. You may also wish to
consult such organizations as your local chapter of the American Civil Liberties
Union which should also be listed in the phone book.
IMPORTANT: Report Actual Threats to the Police!
It is important to note that if at any time during the resolution process,
either formal or informal, the harassment escalates to the point of assault,
physical threats, slashed tires, stalking, or anything else where a reasonable
person would fear for their safety, you must call the police! This has now gone
beyond the realm of harassment into criminal activity. Don't feel embarrassed
about calling the police for something that started out with a joke or whatever.
A well-timed complaint could save your life.
Contact AMER
Feel free to contact AMER for general advice and support in the early stages of
your dispute and please keep us up to date on your case's progress. You can
reach AMER at our voice mail box, (314) 994-1026 or by writing to: Alliance for
Magical and Earth Religions P.O. Box 16551 Clayton, MO 63105. Our electronic
mail liaison is Chris Carlisle The AMER Guide to Handling Religious Harassment
at Work is copyright © 1993 by the Alliance for Magical and Earth Religions.
Permission is granted to reprint this document in its entirety. All other rights
reserved.
Religious Discrimination: Keeping the Faith at Work
Lawsuits charging religious discrimination on the job are on the rise -- but
courts are uneven in praising them. Find out why.
In the last few years, there has been a notable increase in the number of
religious discrimination lawsuits. Theologians hail this burst in litigation as
a sign that Americans are returning to the fold. Pessimists say that workers are
just looking for another excuse to work less.
Title VII of the Civil Rights Act and most state laws prohibit employers from
discriminating on the basis of religious beliefs. Where workers articulate a
need to express their religious beliefs and practice in the workplace, employers
are generally required to accommodate them.
However, employers have some flexibility in how they accommodate employees. An
employer is not required to accept whatever accommodation the employee suggests,
nor to spare the employee all expenses in making the accommodation. For example,
your employer might give you the day off for religious observation, but do so
without pay.
In addition, employers are not required to make accommodations that would cause
them undue hardship. As in all other claims when the term comes up, the meaning
of undue hardship in this context gives employers and courts cause for pause.
Generally, an accommodation that would require more than minimal cost to the
employer, considering its size and resources, will be considered an undue
hardship.
The U.S. Supreme Court has offered some guidance on this issue:
In Trans World Airlines Inc. v. Hardison (432 U.S. 135 (1977)), an airline
employee claimed that his religion, the Worldwide Church of God, forbade him
from working on Saturdays. In Subsequent meetings, TWA union officials argued
that allowing the employee to change shifts would violate a collective
bargaining agreement that banned the arrangement for workers without sufficient
seniority. The Court agreed, holding that the union agreement was more
sacrosanct than the religious practices.
Nearly a decade later, the Court again heard the pleas of a member of the
Worldwide Church of God -- this time arguing that he needed six days off per
school year for religious observance. The sticking point again was a collective
bargaining agreement providing only three days of paid leave for religious
observation. The Court waffled some on its opinion, holding that the court below
would decide whether providing unpaid leave to make up the balance was a
reasonable accommodation (Ansonia Board of Education v. Philbrook, 479 U.S. 60
(1986)).
Since then, the lower courts that have faced the issue have reached differing
conclusions about what is an undue burden for employers. A Florida police
officer's request for Saturdays off was denied "for public safety reasons." But
a California court shot down an employer's order that banned religious artifacts
in all worker's cubicles and prevented them from any type of "religious
advocacy" on the job.
For now, employers and employees grappling with the issue would be best served
to work together to reach an accommodation -- and keep the issue out of the
uncharted territory of court decisions.