Wednesday, December 9, 2009

Religion, the Workplace and Justice

An article in BNA’s US Law Week (available on the BLS Library’s E-Journals & Databases A-Z list) reports that the US Court of Appeals for the Second Circuit, with Brooklyn Law School’s former Dean and current Eastern District of New York Judge David G. Trager, sitting by designation, allowed the Equal Employment Opportunity Commission (EEOC) to seek more information about how UPS Inc. handles religious exemptions to its nationwide ban on beards for certain employees. The November 19 decision, Equal Employment Opportunity Commission v. United Parcel Service Inc., reversed the lower court's refusal to enforce the EEOC’s subpoena after concluding that “how religious exemptions to the UPS Appearance Guidelines are (or are not) granted nationwide was not relevant to the charges being investigated.” Before the ruling by the Second Circuit, employers cited the EEOC v. UPS lower court ruling for the proposition that an EEOC subpoena must be limited to what was relevant to the underlying charge.

At issue for UPS was its Uniform and Personal Appearance Guideline prohibiting employees in public-contact positions from wearing any facial hair below the lower lip. Until 1999, UPS did not place employees who wore facial hair below the lower lip in public-contact positions. In 1999, UPS adopted a formal religious accommodation policy that allowed employees an exemption from the Appearance Guidelines for religious reasons. The suit on which the Second Circuit ruled involved the EEOC's investigation of two cases, one from Buffalo and the other from Dallas, with a Muslim job applicant who alleged that he was denied a public-contact driver position because he refused to shave his beard and a current UPS employee, who claimed that he was denied a public-contact driver position because he refused to shave his beard and that when he requested a religious accommodation form and an accommodation, he was denied both.

The EEOC subpoena sought (1) all documents related to the Appearance Guidelines and a list of all jobs which are subject to the Guidelines; (2) identifying information for all job applicants denied employment because of their refusal to adhere to the Appearance Guidelines since January 1, 2004; (3) identifying information for all employees who requested a religious accommodation exemption from the Appearance Guidelines and the outcomes of those requests since January 1, 2004; and (4) identifying information for all employees who were terminated for reasons relating to the Appearance Guidelines since January 1, 2004.

An employer's obligation to make reasonable accommodations to the religious views of its prospective and current employees is one of the most contentious and difficult areas for employees and employers to navigate. In a diverse and religiously pluralistic society, conflict is bound to occur not only about appearances but also about religious beliefs. Consider the case of Buonanno v. AT&T Broadband, LLC, 313 F.Supp.2d 1069, 93 Fair Empl.Prac.Cas. (BNA) 1204 (D.Colo. 2004) where the employer workplace diversity initiatives included acceptance of gays and lesbians that one employee found offensive on the basis of religion. The employee told his employer that his sincerely held religious beliefs against homosexuality conflicted with his employer's requirement that he sign a code of conduct that contains a diversity policy requiring each employee to “fully recognize, respect and value” differences among co-workers. He claimed that there was a conflict because he claimed he cannot value any “difference” that is “contrary to God’s word.” The District Court awarded $146,269 to the former AT&T Broadband worker after the company fired him for refusing to sign the diversity policy.

In reviewing that decision, an article entitled The Duty of Accommodation and the Workplace Religious Freedom Act of 2003: From Bad Policy to Worse Law at 55 Labor Law Journal 155 (Fall 2004) (Call #P L12 and online in ProQuest Central in the Library's A-Z list) captures some of the difficulties in serving both the interests of employees in the exercise of their religious beliefs and the interests of employers in the exercise of their legitimate managerial prerogatives. With the Second Circuit broadening the subpoena powers of the EEOC in the enforcement of Title VII religious accommodation duty, employers face even more of a challenge when dealing with religious views in the workplace.

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