Administration and Leadership, Columns

Pro Bono: Religious Discrimination & Harassment in EMS

Issue 3 and Volume 41.

We seem to have come so far as a nation in recent years in the acceptance and tolerance of others who may have religious beliefs and practices different than our own. But the attacks in Paris and San Bernardino in late 2015 and other recent world events by ISIS-inspired terrorists seem to have led to an increase in religious discrimination in the United States.

This discrimination can be fueled by statements by public figures such as the recent call to issue a temporary ban on Muslims entering the U.S. When people vying to be our leaders are espousing positions that may be seen as invoking disparate treatment on the basis of religion for national security reasons, it certainly does get America talking.

This article is intended to promote neither a particular religious nor a particular political viewpoint, but merely to set the stage for where we are today and what we all need to continue to do to comply with our current laws.

It sounds easy enough, but the law in this area is surprisingly unsettled. The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces federal antidiscrimination laws, largely takes an approach of encouraging accommodation of religious beliefs whenever and wherever possible unless doing so would create an undue hardship. But courts have wrestled with religious accommodation issues. With respect to public safety employers, courts tend to favor employers, noting, “When the employer’s business involves the protection of lives and property, courts should go slow in restructuring its employment practices.”1

In fact, we as attorneys don’t always agree on what the law actually requires EMS employers to do in dealing with certain types of religious accommodation issues. If an employer or employee face any religious accommodation issues we encourage discussion with counsel knowledgeable on this area of the law, as these issues are very fact-specific and may also invoke state antidiscrimination law as well.

RELIGIOUS DISCUSSIONS

In our open and increasingly “instant news-hyped” society we talk more about religion now than we have in the past-with our friends, our family and our co-workers. In EMS, odds are you frequently work long hours and spend lots of time with your co-workers. There’s a lot of time to discuss many topics, including religion. Although it’s not against the law to discuss religion in the workplace, doing so is generally not a good idea as it can lead to charged emotional reactions, and potential discrimination and harassment claims could result if those conversations go bad and are perceived as affecting workplace decisions.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination and harassment based on (among other things) religion, ethnicity, country of origin, race or color. Illegal harassment can extend beyond the typical school-yard bullying that many of us think of when we think of harassment. It can extend to making someone uncomfortable with comments based on religion and either not stopping when asked or frequently espousing a differing religious viewpoint from your co-worker, making that person uncomfortable.

“But, it’s just EMS,” some of you may be thinking. “We’re strong personalities who don’t hesitate to share our opinions about just about anything at work!” It’s time for these types of attitudes to change. EMS organizations aren’t your home away from home. They’re workplaces in the eyes of the law and must follow the same employment laws and regulations that all businesses follow.

Just like our country is a melting pot of many races, religions, ethnic backgrounds, colors, and genders, so is our industry. We need to appreciate and respect the differences of all our co-workers, not just the ones who look and think like us. Although discussion of religion in the workplace may not lead to inappropriate comments, the safest workplace practice is to save the religious discussions for outside of the workplace.

WORKPLACE RULES & POLICIES

As EMS attorneys, we frequently receive questions from EMS organizations across the country about compliance with federal employment laws. With respect to religion, one of the frequent concerns we get deals with facial hair and beards. Certain religions prohibit shaving of beards. Meanwhile, many EMS organizations have “no facial hair” policies, which are typically set forth in personal appearance policies as well as exposure/infection control plans and infectious disease prevention policies.

Employers must satisfy many requirements to comply with U.S. Occupational Safety and Health Administration (OSHA) laws and regulations. Basically, OSHA requirements ensure that employers provide their employees with a safe and healthful workplace. Personal protective equipment (PPE) is equipment worn to minimize exposure to serious workplace injuries and illnesses, such as gloves and protective masks. In EMS, a protective mask should be worn whenever there’s a possibility of contracting an airborne pathogen as well as whenever there is a possibility of a patient’s bodily fluid splashing into the nose or mouth.2

These masks vary in cost, and a more expensive mask may be the only mask that works effectively for the bearded employee. Let’s go back to our employee whose religious beliefs may prevent him from shaving. Title VII requires an employer, once on notice that this employee has a problem with shaving due to his sincerely held religious beliefs, to reasonably accommodate the employee, unless providing the accommodation would create an undue hardship. However, Title VII’s “undue hardship” is defined very differently than the “undue hardship” defense for disability accommodation under the Americans with Disabilities Act (ADA). Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden, which is a far lower standard for an employer to meet than undue hardship under the ADA-defined in that statute as “significant difficulty or expense.”3

“De Minimis” is not defined in statute or regulation, but generally means “insignificant.” Spending several hundred dollars to buy a special respirator for the employees who can’t shave because of their religion could be seen as more than an insignificant amount of money (“de minimis”) to many cashstrapped EMS organizations.

On the other hand, perhaps spending the several hundred dollars in the name of promoting religious tolerance and acceptance to employees may be money well spent. The organization is certainly going to need to spend more than that amount if it needs to go before the EEOC or a court of law to prove the expense presented an undue hardship for the organization. Although the law may be on the employer’s side, accommodation of religious beliefs that conflict to a small extent with the workplace may help avoid charges of discrimination and can foster a workplace environment of tolerance.

OTHER HARASSMENT/DISCRIMINATION ISSUES

Other dress code issues that may arise with respect to religion involve the wearing of hijabs, piercings, tattoos, long hair (for men), or skirts for religious reasons. There may be requests for time off to attend religious services or time off in observance of the Sabbath. There may also be requests for prayer time at work or to be excused from pre-meeting prayers or flag ceremonies.

Again, Title VII protects workers from employment discrimination and harassment based on religion, and requires employers to provide a reasonable accommodation for employees’ sincerely held religious beliefs, observances and practices, when requested, unless the accommodation would impose an undue hardship (of more than a de minimis cost or burden) on business operations.

There are three important considerations that may arise with respect to compliance with Title VII’s protections against religion discrimination and harassment:

  1. Whether the employee professes a sincerely held religious belief and asks for an accommodation. The religion might be something really unusual that you’ve never heard of (e.g., the Church of Body Modification) but as long as the employee sincerely practices that religion, it must be considered.
  2. Whether providing an accommodation would impose an undue hardship of more than a de minimis cost or burden upon the business operations of the employer.
  3. Weighing the first two considerations and coming up with a workable solution that respects the religious views of the employee, while not disrupting business operations or imposing some other type of undue hardship (such as maintaining adequate staffing), and while not putting the employee’s, other co-workers’, or patients’ safety at risk.

Deciding what constitutes a sufficient disruption of the employer’s business operations or what may be an undue hardship to the employer is easier said than done, as what EMS employers are legally permitted to do in this area may largely depend on where the company is located, as courts around the country have issued different opinions on these issues.

The Supreme Court has recently weighed in on the subject of religious discrimination in employment, stating in EEOC v. Abercrombie & Fitch Stores, Inc. that:

“Congress defined ‘religion,’ for Title VII’s purposes, as ‘includ[ing] all aspects of religious observance and practice, as well as belief,’ 42 U.S.C. § 2000e(j). Thus religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated. “

” Title VII does not demand mere neutrality with regard to religious practices-that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse or hire or discharge any individual ” because of such individual’s’ ‘religious observance or practice.’ An employer is surely entitled to have a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an ‘aspec[t] of religious practice,’ it is no response that the subsequent ‘fail[ure] . . . to hire’ was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”4

This case involved Abercrombie and Fitch refusing to hire an employee who wore a hijab to an interview because the hijab would violate its dress code policy, even though the employee had never actually asked the employer for an accommodation. The Supreme Court found that the employer didn’t have to have actual knowledge of the need for an accommodation in order to have potentially discriminated against the applicant.

This Supreme Court case is too new to fully appreciate the effect it may have on future religious discrimination cases in the lower courts across the country. What it does show is that this Supreme Court appears to favor employers making reasonable efforts to accommodate their employees’ needs for religious accommodation.

CONCLUSION

The best thing an EMS employer can do to avoid potential claims of religious discrimination and harassment simply boils down to implementing policies prohibiting religious discrimination and conducting meaningful training on those policies while creating a workplace atmosphere that demonstrates respect for and tolerance and acceptance of people with differing viewpoints, including their religious beliefs. To achieve this, EMS organizations should be willing to consider making reasonable workplace accommodations for religious practices that don’t put an undue burden on the employer.

Workplace training should make it clear that crude jokes, derogatory comments, and invasive or disrespectful personal questions aren’t tolerated and will result in immediate corrective counseling and possible disciplinary action. The training should also cover how employees can report when they believe they’re the victim of workplace harassment or discrimination or if they’ve witnessed what they believe to be a staff member being harassed or discriminated against by another staff member.

It’s also important to train supervisors to properly handle these allegations and complaints. Supervisors should be trained on how to properly handle the investigation process, how to properly implement corrective action and discipline, and how it’s prohibited to retaliate in any way against the accuser who makes a good faith report of alleged discrimination or harassment.

Every person at every level within an EMS organization needs to strive to create a workforce that’s inclusive regardless of individual differences. A zero tolerance policy for any type of discrimination, offensive words and harassing behavior is essential. And an extra effort by management to respect and use their best efforts to not force employees to have to choose between their job and their religion will send a loud and clear message that the religious convictions of all employees are respected.

REFERENCES

1. Beadle v. City of Tampa, 42 F.3d 633 (11th Cir. 1995).

2. National Personal Protective Technology Laboratory. (March 1, 2012.) Respirator trusted-source information. Section 3: Ancillary respirator information.Centers for Disease Control & Infection. Retrieved Jan. 18, 2016, from www.cdc.gov/niosh/npptl/topics/respirators/disp_part/respsource3selection.html.

3. EEOC. (July 22, 2008.) Compliance manual. Section 12: Religious discrimination. Retrieved Jan. 18, 2016, from www.eeoc.gov/policy/docs/religion.html.

4. E.E.O.C. v. Abercrombie & Fitch Stores, Inc. 35 S. Ct. 2028 (2015).

Pro Bono was written by Christie Mellott, Esq., an attorney at Page, Wolfberg & Wirth, The National EMS Industry Law Firm. Visit the firm’s website at www.pwwemslaw.com or find them on Facebook, Twitter or LinkedIn.