RELIGIOUS DISCRIMINATION IN EMPLOYMENT

Massachusetts Employment Law Practice Manual

Massachusetts Continuing Legal Education

Harvey Schwartz

Robert Shea

The law regarding religious discrimination against employees can be stated in a sentence: employers can't require their employees to violate their religious beliefs as a condition of employment unless the employer can prove that accommodating the employee would impose an undue hardship.

Despite the apparent simplicity of this statement, the law of religious discrimination presents issues different from all other forms of employment discrimination. The law is complex, and, recently, went through a complete transformation. Religious discrimination cases are rare. When they do walk into your office, however, they are emotionally intense, difficult to compromise and cut to peoples' fundamental core values and beliefs. Unlike other forms of employment discrimination, religious discrimination cases confront a head-on a conflict between two basic Constitutional provisions contained in the First Amendment:

Religious discrimination cases balance on the knife edge that separates these two constitutional provisions. On the one hand, allowing job benefits - the right to miss a day of work without penalty - for members of a specific religious group but not for others, or for nonbelievers, is arguably a law "respecting an establishment of religion." On the other hand, allowing employers to fire an employee who refuses to violate the requirements of his religion places a burden on the "free exercise" of that employee's religion. This conundrum arises in no other form of employment discrimination.

A brief history of Massachusetts law

The Supreme Judicial Court addressed this conflict head-on in Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 668 N.E.2d 1298 (1996). There, two Catholic women were fired from their jobs as parimutuel clerks at a dog track when they refused to work on Christmas. They sued their employer under M.G.L. c. 151B 4(1A), which prohibits employers from compelling employees to violates the requirements of their religion, unless doing so would create an undue hardship for the employer. The Superior Court, in a decision neither the employer nor the employees defended on appeal, examined the Canons of the Roman Catholic Church (under Mass. R. Civ. P., Rule 44.1, which permits a court to construe the law of a "foreign country") and said, "This court rules that Catholic dogma does not require worshippers to abstain from working on Holy Days. The only requirement the church absolutely imposes upon its followers is to attend mass. Plaintiffs were not denied the opportunity to attend mass, and therefore, plaintiffs cannot establish that they were forced to forgo a practice required by their religion."

In defense of the Superior Court judge, he was simply applying the methodology the Supreme Judicial Court itself had established in its earlier cases construing 4(1A). In a trilogy of cases the SJC created a shifting burden of proof for religious discrimination cases. The Court had interpreted c. 151B 4(1A) to protect only an employee following the "the practice of her religion as required by that religion."Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 771-772 (1986). See also New York & Mass. Motor Services, Inc. v. Comm. Against Discrimin., 401 Mass. 566 (1990), and Kolodziej v. Smith, 412 Mass. 215 (1992). As interpreted in these three cases, since the statute "prohibits an employer from requiring an employee, as a condition of employment, to violate or forgo the practice of her religion as required by that religion, it follows that the threshold showing an employee must make is whether the activity sought to be protected is a religious practice and is required by the religion." Kolodziej v. Smith, 412 Mass. at 221. The Court noted that the statute does not deal with "the full panoply of religious beliefs, practices, preferences, and ideals but focuses instead on required religious practices." This analysis focused on the formal requirements of the religious body and ignored the individual employee's own religious beliefs.

Thus, in Kolodziej v. Smith, 412 Mass. at 221, where an employer required an employee to attend a motivational seminar she felt was offensive to her religious beliefs, the Supreme Judicial Court affirmed a finding of summary judgment for the employer, saying, "There was no evidence that Roman Catholic dogma forbade her attendance at the seminar." Under this burden of proof standard, employees claiming protection under c. 151B were required to offer evidence of the formal requirements of their religion and the judge or jury was required to make findings of fact as to the absolute requirements of religious dogma.

The Supreme Judicial Court did an abrupt about face in Pielech and declared the Massachusetts statutory scheme, as the SJC itself had previously interpreted and applied it, unconstitutional and in violation of the Establishment clause of the First Amendment. It should be noted thatPielech was the product of a highly divided Supreme Judicial Court. A minority of four justices would have upheld the statute by interpreting it as protecting all religious beliefs, not just those of organized religions. The decision left Massachusetts employees with no state law protection against religious discrimination through the 1996 holiday season.

The legislature stepped in early in 1997 with a revised statute, which was approved by the Supreme Judicial Court in advance of enactment. Opinion of the Justices to the House of Representatives, 423 Mass. 1244, 673 N.E.2d 36 (1996). The revised statute changed the employee's initial burden of proof. No longer would employees be required to offer evidence of the formal requirements of their religious denomination. Under the revised statute the employee's burden is to prove "any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religion."

II. CONTROLLING AUTHORITY

A. M.G.L. c.151B 4 (1A) states, in relevant part:

It shall be unlawful discriminatory practice for an employer to impose upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a Sabbath or holy day and the employer shall make reasonable accommodation to the religious needs of such individual.

Thus, the law imposes two distinct legal obligations: (i) a prohibition against disparate treatment based upon creed or religion, and (ii) a duty to make reasonable accommodation.

The present burdens of proof

violate, or forego the practice of, his creed or religion as required by that creed or religion including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or holy day.

Keep in mind that the 1997 revision to the statute defines "creed or religion" to include "any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religion." Critics of the new law predicted a flood of one-person religions such as the Church of Not Working on Mondays. Those predictions have yet to come true.

The statute itself, however, provides some assistance in construing the two phrases. "Reasonable accommodation," as used in the statute, "shall mean such accommodation to an employee's or prospective employee's religious observance or practice as shall not cause undue hardship in the conduct of the employer's business." The statute then defines "undue hardship" to mean

the inability of an employer to provide services which are required by and in compliance with all federal and state laws, including regulations or tariffs promulgated or required by any regulatory agency having jurisdiction over such services or where the health or safety of the public would be unduly compromised by the absence of such employee or employees, or where the employee's presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee of substantially similar qualifications during the period of absence, or where the employee's presence is needed to alleviate an emergency situation.

There is not a great deal of case law construing these phrases in religious discrimination cases. The Supreme Judicial Court attempted to describe a "three-part inquiry in any case involving allegations of religiously-based discrimination" in New York & Mass. Motor Services, Inc. v. Comm. Against Discrimin., 401 Mass. at 575-6, but the "three-part inquiry" involves just two steps. In the first step, the employee must show that the employer required him to violate the requirements of his religion (and that he gave the statutory notice). In the second (and apparently the third) inquiry, the employer must prove that accommodating the religious needs would create an undue hardship. The Court noted that "in addressing the issue of undue hardship, the commission also must focus on whether the employer could have exercised its managerial discretion in such a way that the employee's religious obligations could have been reasonably accommodated." Id.

New York & Mass. Motor Services is instructive on the level of scrutiny the court will engage in while making the undue hardship determination. The court examined the staffing levels the trucking company required, the cost of hiring a substitute truck driver to replace the plaintiff while he missed time for a religious holiday and past instances where a driver was given time off. The court noted that "New York-Mass could show undue hardship if it could establish that [plaintiff's] absence would cause staffing levels to fall below the minimum level needed to operate the business." In the absence of convincing evidence of hardship, the employer failed to meet its burden of proving that accommodation would impose an undue hardship.

Title VII religious discrimination claims

The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.

Similarly, 2000e-2(a)(1) makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion."

The Title VII standards and burdens are now virtually identical to the Massachusetts standards and burdens for proving religious discrimination. The leading case construing Title VII in this regard is Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53L.Ed.2d113 (1977). There, an airline mechanic who was fired for refusing to work on Saturday, his Sabbath, claimed he had been discriminated against because of his religion. The Supreme Court found for the airline, holding that it did not have to violate its seniority system to accommodate his religious needs and that allowing Hardison to be exempt from work on Saturdays would impose an undue hardship on the airline, which required employees on a 24-hour, 365-day basis. The Court created a low threshold for undue hardship, saying, "To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship." 432 U.S. at 84, 97 S.Ct. at 2277.

EEOC Regulations

The EEOC also offers guidance on what will be considered an "undue hardship" for an employer. While acknowledging the rather low standard established in TWA v. Hardison, the EEOC offers its own interpretation of the concept of "de minimis cost," as follows:

The Commission will determine what constitutes ``more than a de minimis cost'' with due regard given to the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation. In general, the Commission interprets this phrase as it was used in the Hardison decision to mean that costs similar to the regular payment of premium wages of substitutes . . . would constitute undue hardship. However, the Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing a reasonable accommodation. Further, the Commission will presume that generally, the payment of administrative costs necessary for providing the accommodation will not constitute more than a de minimis cost. Administrative costs, for example, include those costs involved in rearranging schedules and recording substitutions for payroll purposes.

Summary of legal standards

for religious discrimination in employment

Statutes - Claims can be brought under c. 151B 4(1A) and 42 U.S.C. 2000(e) (Title VII). Keep in mind, of course, the mandatory filing requirements for any discrimination claim with the M.C.A.D. and the E.E.O.C., together with their short filing deadlines and minimum number of employee requirements.

G.L. c. 151B 4(1A)

42 U.S.C. 2000(e)

Advance notice requirement not less than ten days in advance of each absence None
Obligation to make up lost time any such absence from work shall, wherever practicable in the judgment of the employer, be made up by an equivalent amount of time at some other mutually convenient time. None
Definition of "religion" any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization. all aspects of religious observance and practice, as well as belief.
Employee's right No employee shall be required to remain at his place of employment during any portion of a day that, as a requirement of his religion, he observes as his sabbath or other holy day, including a reasonable time prior and subsequent thereto for travel between his place of employment and his home. Employer may not refuse to hire, discharge or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion
Employer's defense unable to make reasonable accommodation to the religious needs of such individual unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business
Applicability Employers with six or more employees Employers with fifteen or more employees
Filing deadline Six months (with MCAD) 300 days (with EEOC)




III. TYPES OF CLAIMS

Religious discrimination claims typically allege disparate treatment based upon creed or religion and/or failure to make reasonable accommodation. Most cases arise from employers' refusal to give an employee time off for a religious observance. The employees' demands range from specific religious holidays to specific days of the week to lengthy periods of time. For example, in New York & Massachusetts Motor Service, Inc. v. Massachusetts- Commission Against Discrimination, 401 Mass. 566, the employee requested a week off "in order to observe holy days of his religious institution, the Worldwide Church of God." The plaintiff prevailed in that case. In Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, however, the employee was fired after she took an unauthorized two-month leave to do missionary work abroad. The employer prevailed.

Some other cases involve workplace requirements that an employee believes violates her religious beliefs. For example, in Kolodziej v. Smith, 412 Mass. 215, an employee was required to attend a motivational seminar with other employees that was based on passages from the Bible and included "a videotape presentation centered on a woman's proper place in the family." She complained that the seminar violated her religious beliefs. The Supreme Judicial Court found that since "[t]here was no evidence that Roman Catholic dogma forbade her attendance at the seminar," the judge correctly allowed the employer's motion for directed verdicts. It is questionable whether this remains good law after the 1997 revision to the statute.

IV. DEFENSES

A. As noted above, the employer has the burden of proving that an accommodation will cause undue hardship in the conduct of the employer's business. The statute itself gives four types of undue hardship: (i) "the inability of an employer to provide services which are required by and in compliance with all federal and state laws;" (ii) "where the health or safety of the public would be unduly compromised by the absence of such employee or employees," (iii) "where the employee's presence is indispensable to the orderly transaction of business and his or her work cannot be performed by another employee of substantially similar qualifications during the period of absent" or (iv) "where the employee's presence is needed to alleviate an emergency situation." However, these four types of undue hardship are not exclusive and the statute gives no further guidance on the parameters of the defense.

In New York & Massachusetts Motor Service, Inc. v. Massachusetts-Commission Against Discrimination, 401 Mass. 566, the SJC held that to prove undue hardship an employer must show that the requested accommodation will cause some financial loss or be disruptive of its business. The Court noted that the employer "could show undue hardship if it could establish that [the plaintiff's] absence would cause staffing levels to fall below the minimum level needed to operate the business." Finding no such disruption, the court found for the employee.

On the other hand, the law cannot be interpreted to require an employer to bear more than a "de minimus" burden. In Trans World Airlines, Inc. v. Hardison, 432 U.S. at 84, the employer contended that accommodation would be an undue hardship because it would have impaired the functioning of the work area and having another employee do the plaintiff's work would have undermanned another work area or required the employer to pay overtime wages. The Supreme Court agreed with the employer, holding that "[t]o require [the employer] to bear more than a de minimis cost in order to give [the employee] Saturdays off is an undue hardship."

The EEOC's guidelines on religious discirmination suggest a greater burden for employers who assert the undue hardship defense. According to the guidelines, the "Commission will determine what constitutes more than a de minimis cost with due regard given to the identifiable cost in relation to the size and operating cost of the employer, and the number of individuals who will in fact need a particular accommodation." 29 C.F.R. 1605.2(e). The Commission said that it interprets the phrase "more than a de minimis cost" as it was used in the Hardison decision to mean "that costs similar to the regular payment of premium wages of substitutes . . . would constitute undue hardship." The Commission said that it "will presume that the infrequent payment of premium wages for a substitute or payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing a reasonable accommodation." (emphasis supplied). The Commission said further that it "will presume that, generally, the payment of administrative costs necessary for providing the accommodation [e.g., costs involved in rearranging schedules and recording substitutions for payroll purposes] will not constitute more than a de minimiscost."

IV. STRATEGY OPTIONS CHECKLIST

Plaintiffs -

If the employee contacts an attorney in advance of the request for time off for a religious observance the employee should be advised to strictly comply with the statutory requirement of ten days advance notice. Further, the employee should be counseled to propose some form of reasonable accommodation the employer can make, such as arranging in advance to swap work schedules with another employee or an opportunity to make up for the lost time. The employee should be advised that the employer is not required to pay the employee for the lost time so it might be better to use vacation or personal time, rather than making a demand under the religious discrimination statute. Finally, if the employee anticipates resistance from the employer, the attorney should be prepared, well in advance of the ten day notice period, to inform the employer of the requirements of the law.

If the employee contacts the attorney after the fact, after being turned down for time off or after being fired or disciplined for taking time off for a religious observance, the attorneys should ensure that the employee complied with the statutory notice requirements before taking action against the employer. Unless the employee has been fired, damages for a statutory violation may be small, a day's pay and some emotional distress. On the other hand, the MCAD has awarded its highest emotional distress award - $300,000 - for a violation of an employee's religious rights in which the out-of-pocket damages were just $1,998. In Said v. Northeast Security (Lawyers Weekly No. 22-088-96), MCAD Commissioner Charles Walker awarded those emotional distress damages to a Muslim who was harassed by a fellow employee because of his religion.

The attorney's first task is to determine what relief the employee seeks. An employee who still has his job may only want to make sure that he is allowed time off for the next religious holiday. In those circumstances, an MCAD complaint or a law suit may be counterproductive to achieving that goal and gentle negotiation, perhaps with a prod from the employer's attorney, may solve the problem in the future. If the employee has lost his job, however, litigation may be the only course. In that event, check to ensure that the statute has been complied with, keep the six month statute of limitations in mind, and file with both the MCAD and the EEOC .