Problem: Religious Discrimination

Kimberly Cloutier was employed as a cashier at Costco in West Springfield, Massachusetts. The store revised its dress code in 2001 to prohibit all facial jewelry other than earrings. Cloutier, a member of the "Church of Body Modification," was advised to remove her facial piercings. She declined to do so saying that her piercings were part of her religion. The church's approximately 1,000 members engaged in such practices as piercing, tattooing, branding, and cutting. Eventually, Cloutier was fired. She sued Costco claiming she was a victim of religious discrimination in violation of Title VII of the Civil Rights Act of 1964. Costco, however, prevailed when the federal First Circuit Court of Appeals ruled in 2004 that excusing Cloutier from the dress code would be an undue hardship for Costco because the company had a legitimate interest in presenting to the public a workforce that was reasonably professional in appearance. 64

The Law Title VII's protections against religious discrimination and harassment in the workplace include the employer's duty to reasonably accommodate employees' religious beliefs and practices. As was evident in Cloutier's conflict with Costco, reasonably accommodating religious practices often poses challenges for employers. Consider, for example, the employer who must balance an employee's religious practice of proselytizing or discussing religion in the workplace against other employees' right to be free from religious harassment. Employers need not accommodate an employee's religious practice or belief if it creates an "undue hardship"-an unreasonable burden-on the workplace. The leading religious discrimination case is Trans World Airlines, Inc. v. Hardison, in which the plaintiff, who celebrated his religion on Saturdays, was unable to take that day off from his work in a parts warehouse. 65 Efforts to swap shifts or change jobs were unsuccessful. The company rejected Hardison's request for a four-day week because it would have required the use of another employee at premium pay. The Supreme Court's ruling in the case reduced the employer's duty to a very modest standard: "To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship ."

Saturdays off for Hardison would have imposed extra costs on TWA and would have constituted religious discrimination against other employees who would have sought Saturday off for reasons not grounded in religion. So any accommodation imposing more than a de minimis cost on the employer represents an undue hardship and is not required by Title VII. Of course, the lower courts have differed considerably on what constitutes a de minimis cost and an undue hardship. For example, an Ohio court ruled that an employee, a Seventh Day Adventist, was discriminated against when he was fired for refusing to work from sundown Friday to sundown Saturday. The employee could have been moved to an earlier shift at no cost. 66 An employer might be unsure whether employees who request accommodation are sincere in their religious beliefs or merely seeking an advantage such as a longer break or trying to avoid workplace requirements under attendance or grooming policies. The EEOC defines religion broadly as "moral and ethical beliefs of what is right and wrong which are sincerely held with the strength of religious views." 67 This broad view of religious beliefs arguably indicates that employers should err in favor of moving forward to the central issue: Is an accommodation reasonable or would it create an undue hardship?

Questions

1. Resolving job-related religious conflicts can be among the most emotionally demanding management dilemmas. For example, what challenges would you face as a manager if one of your subordinates, as an expression of her religious beliefs, wore to work an antiabortion button displaying a picture of a fetus? How would you address these challenges? See Wilson v. U.S. West Communications , 58 F.3d 1337 (8th Cir. 1995).

2. Yisrael worked as a dump truck driver for a North Carolina company providing paving, grading, and utility services for transportation projects. As a member of the Hebrew Israelite faith, Yisrael observed Sabbath on Saturday. After refusing to work three different Saturdays, he was terminated. The EEOC filed a lawsuit on behalf of Yisrael. What further information would you need to decide this case? Explain. See EEOC v. Thompson Contracting, Grading, Paving, & Utilities, Inc. 499 Fed. Appx. 275 (4th Cir. 2012) (unpub'd op.).

3. An Oklahoma lighting company, Voss, advertised a vacancy for an "operations supervisor" position at its Tulsa location through the website of a Tulsa-area church attended by a Voss supervisor. Wolfe, who had prior operations management experience, learned about the vacancy and applied for the position although he did not himself attend the church. Most of the job interview concerned Wolfe's religious activities and beliefs and whether he "would have a problem" coming into work early to attend Bible study before clocking in. The branch manager seemed hesitant to accept Wolf's answers as truthful. At the time Wolfe was interviewed, Voss had no viable candidates for the position being filled. Wolfe was not offered the job, and after continuing its search, the company hired an individual whose religious ideology matched that of the company's leadership. Wolfe filed an EEOC religious discrimination complaint.68 Decide. Explain.