Religious Discrimination. Gina Gomez, a devout Roman Catholic, worked for Sam’s
ID: 449900 • Letter: R
Question
Religious Discrimination. Gina Gomez, a devout Roman Catholic, worked for Sam’s Department Stores, Inc., in Phoenix, Arizona. Sam’s considered Gomez a productive employee because her sales exceeded $200,000 per year. At the time, the store gave its managers the discretion to grant unpaid leave to employees but prohibited vacations or leave during the holiday season—October through December. Gomez felt that she had a “calling” to go on a “pilgrimage” in October to Bosnia where some persons claimed to have had visions of the Virgin Mary. The Catholic Church had not designated the site an official pilgrimage site, the visions were not expected to be stronger in October, and tours were available at other times. The store managers denied Gomez’s request for leave, but she had a nonrefundable ticket and left anyway. Sam’s terminated her employment, and she could not find another job. Can Gomez establish a prima facie case of religious discrimination? Explain. (See Discrimination Based on Religion.)
Explanation / Answer
Title VII of the Civil Rights Act of 1964 prohibits government employers, private employers and unions from discriminating against persons because of their religion.Employers cannot treat their employees more or less favorably based on their religious beleifs or practices and cannot require employees to participate in any relegious activity or forbid them from participating in one.
Religious Discrimination Law: How can a person establish a prima facie case of religious discrimination?
A.REASONABLE ACCOMODATION
An employee can present a prima facie case of discrimination for failure to reasonably accommodate a religious belief or practice if he or she can show that
(1) he or she “has a bona fide religious belief that conflicts with an employment requirement”;
(2) he or she “informed the employer of this belief”; and
(3) he or she “was discharged or disciplined for [failure] to comply with the conflicting employment requirement.
Once the plaintiff establishes a prima facie case, the employer then has the burden to prove either that it reasonably accommodated the plaintiff or that it was unable to do so without “undue hardship.”
B. Extent of the Employee’s Duty to Notify an Employer of His or Her Religious Belief or Practice
1. An Employee Must Inform His or Her Employer of a Bona Fide Religious Belief That Conflicts with an Employment Requirement
In order to establish a prima facie case of religious discrimination for failure to accommodate, an employee must show both that he or she has a bona fide religious belief that conflicts with an employment requirement and that he or she informed the employer of this belief. In many cases there is no question that the employee has informed the employer of his or her religious belief. In some cases, however, employers have argued that they had no obligation to provide an employee with a reasonable accommodation because the employee in question never explicitly requested such an accommodation. Gina Gomez cannot establish prima facie case if there was no evidence that she told her employer of going on a piligrimage to Bosnia.
2. An Employee Does Not Necessarily Have to Request Expressly a Reasonable Accommodation
Two United States Courts of Appeals have held that an employee does not have to explicitly ask for a religious accommodation. However, two more recent decisions in the Tenth and Sixth Circuits have held that an employee must explicitly ask for a religious accommodation.
C. What Is the Extent of the Employer’s Duty to Accommodate?
1.Extent of the Employer’s Duty to Consider Possible Reasonable Accommodations
Employees who seek reasonable accommodations for religious beliefs or practices do not have to suggest a proposed accommodation.Nevertheless, it is often prudent for employers to seek suggestions from employees about possible accommodations, particularly since such dialogue can provide the employee with a sense of ownership in the process.
This does not mean, however, that employers have to merely follow the wishes of employees with respect to possible accommodations. If an employee does suggest proposed accommodations, employers do not have to offer or consider every possible accommodation. Likewise, employers also do not have to offer the accommodation that the employee prefers. Rather, an employer meets its obligations under Title VII “when it demonstrates that it has offered a reasonable accommodation to the employee,” even if the employer does not show that the employee’s preferred or recommended accommodations would result in undue hardship.
Generally, if an employer suggests an accommodation that would still require the employee to violate his or her religious beliefs or practices, such an accommodation is not a reasonable accommodation. However, the Eighth Circuit has held that Title VII does not require an employer to eliminate a religious conflict for which an employee requests accommodation.
Although it is clear an accommodation is reasonable if it eliminates religious conflict, the Eighth Circuit held there is no requirement that an accommodation eliminate religious conflict in order to be reasonable.Title VII was intended to foster “bilateral cooperation”: An employer must make “serious efforts” to accommodate a religious practice, but there are times where the employee must either compromise a religious practice or belief or accept a less desirable position with no conflict.
2. Employers Are Not Required to Offer Accommodations That Would Result in an “Undue Hardship” to the Employer
Employers are not required to offer accommodations if such accommodations would result in an undue hardship to the employer. Generally, a proposed accommodation results in undue hardship if it results in greater than de minimis costs or negative effects on other employees. Likewise, a proposed accommodation generally results in an undue hardship if it requires the employer to violate federal regulations or the bona fide seniority provisions of a collective bargaining agreement.
However, it is not enough for employers to speculate about potential problems posed by a requested accommodation. In order to show that a requested accommodation would result in an undue hardship, actual proof of the hardship must be presented.