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Ongoing derogatory religious comments and practical jokes against sole Muslim employee by numerous coworkers may be enough to show harassment, even absent any physical threat or behavior.
A black Muslim employee at a construction equipment rental company can move to trial on his claim that he was subject to a hostile work environment because of his religion, the Fourth Circuit Court of Appeals recently held.
The employee was hired soon after September 11 and almost immediately was subjected to comments and jokes about his appearance, because he wore clothing that signified his religion. During his two years of employment as a rental agent, the employee was called “Taliban” on numerous occasions and compared to a terrorist by not only coworkers but several supervisors as well. He was also subjected to ongoing workplace pranks, such as having his computer unplugged and his timecard hidden, particularly on Fridays, when he left early to attend workplace-sanctioned prayer services.
After reviewing all the evidence, the court found the employee had established a hostile work environment claim and that the alleged harassment against him was severe and pervasive, both subjectively and objectively. The court noted that the employee complained to his supervisors, and eventually to HR, after nearly every incident or comment; at least one employee admitted they liked to tease the employee because he took the jokes so personally. Further, there was no question most of the incidents were as a result of his religion. Comments about the Taliban, terrorism and Arabs were plainly religious in nature, and several employees admitted in their testimony that the plaintiff was subjected to more pranks than normal specifically because of his religion and the fact that he left work every Friday to pray.
This case demonstrates the difference between ordinary workplace hijinks and behaviors that are serious enough to be considered harassment. Title VII is not a general “civility code” requiring good behavior in the workplace, but it does protect employees from being the butt of jokes or pranks because of their religion, among other protected characteristics. In this case, nearly daily comments tied to the plaintiff’s Muslim faith, in addition to the ongoing pranks, were enough to make a case of harassment.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see EEOC v. Sunbelt Rentals Inc., -- F.3d --, 2008 WL 836409 (4th Cir., March 31, 2008).
Transgendered male job applicant can go forward with his claim for sex discrimination based on argument he was not hired because he failed to conform to accepted sex stereotypes.
Although recognizing that Title VII does not protect against discrimination based on sexual orientation, a federal court allowed a biological male who dresses as a female to go forward with his sex discrimination claim against a company that refused to hire him.
The plaintiff applied for a job as a scheduler at a medical clinic, submitting a resume containing only a female name but using both his female and male names on his job application. Although he was initially hired, the employer later rescinded the job offer on the grounds that the plaintiff had misrepresented himself by applying for the job as a woman when, in fact, he was a man.
The court explained that Title VII does protect against discrimination based on sex where the employer believes the plaintiff does not conform to accepted sexual norms. For example, discrimination against a woman because she does not act feminine enough or discrimination against a man who is perceived as too effeminate, would both be grounds for finding a violation of Title VII. In this case, the plaintiff argued he was not hired because he did not conform to the employer’s belief about how a male should look and act. In contrast, the employer held that it simply applied its policy of refusing to hire anyone who misrepresented anything in the job application.
The plaintiff countered that he informed the company about his status when he applied for the job, and that several coworkers who recommended him for the position were also aware of it. The court held that there was a question of fact about the real reason the plaintiff was not hired and that a jury would have to decide the issue.
This case gives a good example of the difference between alleging discrimination based on sexual orientation, which is not protected by Title VII, and discrimination based on failure to conform to gender norms, which is protected.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Lopez v. River Oaks Imaging & Diagnostic Group Inc., -- F.Supp. –, 2008 WL 902937 (S.D. Tex. April 3, 2008)].
Employee who refused to work on Sundays could go forward with her religious discrimination claim.
An employee who claimed her religious beliefs prohibited her from working on Sundays or from asking coworkers to take her Sunday shifts could move forward on her claim of religious discrimination, a federal court recently held.
The plaintiff was a cashier for a grocery store. After the store made the decision to begin opening on Sundays, she informed her supervisors it violated her religious beliefs to work on Sundays or to ask others to work for her. She was fired after missing two scheduled Sundays of work.
The grocery store contended that its regular scheduling policy was enough to accommodate the plaintiff’s religious beliefs, because it only required her to work every eight Sundays or so and provided a system for swapping shifts with coworkers. The company also disputed that the plaintiff truly had a religious reason for asking for Sundays off of work, noting the plaintiff admitted she did not attend church and wanted to be able to spend the time with her family.
The court first noted that church attendance was not necessary to show a sincerely held religious belief and agreed the plaintiff’s statements about her adherence to her religion were enough. It next explained that the grocery store did not prove it fulfilled its attempt to accommodate the cashier’s religious beliefs by simply relying on its regular scheduling and shift-swapping policy. The store completely failed to look at plaintiff’s specific needs when it relied on the policy, and the court noted that merely allowing the plaintiff to swap shifts ignored her contention that her religion also prevented her from asking others to work on Sundays as well. It would be up to a jury to decide if more accommodation was needed.
This case explains that employers need to consider requests for accommodation on a case-by-case basis. Here, a neutral scheduling policy and the ability to swap work times with coworkers, while not discriminatory on their face, were not enough to satisfy the accommodation requirement.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see EEOC v. Aldi Inc., 2008 WL 859249 (W.D. Pa., March 28, 2008)].
Employer violated National Labor Relations Act (NLRA) through acts against employees of another company who sought employment with it.
A school bus company violated the NLRA when it refused to hire a number of drivers who had written the school board asking that it not award a bus driving contract to the company, a federal court recently held.
It did not matter that the drivers were not employees of the company in question. They were protected by the NLRA when they engaged in protected concerted activity aimed at making work-related complaints about their potential employer.
The plaintiffs were school bus drivers with a company called First Student; they were represented by a local union. After the school district for whom they drove awarded a bus contract to a different, nonunion company, the union asked its drivers to write letters to the Board, urging it not to award the contract to the winning company, because it had a poor financial and safety reputation, would likely not adhere to the drivers’ current pay and benefit level and would not recognize the union. The contract went through anyway, and the new bus company refused to hire a number of the drivers who had written letters against it.
The court held that the bus company violated federal labor law by refusing to hire the drivers who wrote letters complaining about the new company’s employment practices. It explained that the NLRA protects employees’ rights to engage in protected concerted activity regarding employment relations between an employer and employee. Even though the new bus company was not the drivers’ actual employer, the NLRA’s definition of employer is broad enough to cover the situation, because the drivers were employees of another bus company and were seeking employment with the new company. They engaged in protected, concerted activity by specifically voicing a group concern about whether the successor bus company would honor their current collective bargaining agreement and its wage and benefits terms.
This case shows that the NLRA contains broad protections for employees who voice work-related concerns or issues. Even absent a true employment relationship, the drivers were still protected when they voiced their opinions about a company that might become their employer.
-- Marc Jacobs, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Five Star Transp. Inc. v. NLRB, -- F.3d --, 2008 WL 839758 (1st Cir., March 31, 2008)].