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Issue #52 - 8.19.08
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New Religious Discrimination Guidance Confusing for Employers
On July 22nd, the Equal Employment Opportunity Commission issued its latest guidance on religious discrimination, a major addition to its Compliance Manual. Unfortunately, the EEOC only made the doctor's position more ambiguous, and exposed to liability.
Generally, religious discrimination law follows the tests adopted for other protected characteristics, such as race or national origin. However, this area departs from the traditional tests in that the employer must reasonably accommodate religious beliefs. In this regard, the law aligns more closely with disability discrimination law.
The EEOC guidance, unfortunately, expands the employer obligations to accommodate religious belief and expression, and thus exposes the employer much more to both discrimination and retaliation claims. And, although the EEOC guidance applies to employers of 15 or more employees, states adopt the federal practices in enforcing their own laws—hence, a doctor who employs only a few staff is now exposed.
Let me give you an example of one doctor's unfortunate predicament that arose out of employer-sponsored prayer sessions. Our doctor is a very devoted Christian, and for some time had held office prayer sessions. Of course, she made clear to new hires that the participation was entirely voluntary, and that no adverse consequences would arise from a refusal to participate. Dr. B, as I'll call her, hired a chairside assistant who worked for her for some months. Rebecca was a less-than-outstanding employee, and Dr. B had to counsel her numerous times for poor performance. Like many practitioners, Dr. B had a human resources policy that was old, outdated and inadequate. On an ad hoc basis, Dr. B whipped out a "performance warning" that informed Rebecca she was in danger of termination. Things deteriorated dramatically from that point, and Dr. B had to terminate Rebecca shortly thereafter.
A few months later, Dr. B received a notice that Rebecca had hired lawyers and filed suit, asserting that she had been retaliated against by Dr. B's staff because she declined to participate in the prayer meetings. She asserted that Dr. B knew of, and acquiesced to, the harassment that was severe and pervasive. Without a policy and practice in place that would have documented this as untrue, Dr. B was forced into a "she said, she said" situation.
We assisted Dr. B by immediately obtaining statements from staff that (1) established the lack of harassment and (2) documented the performance issues with Rebecca. We also found for Dr. B a local lawyer with extensive experience in defending discrimination claims. Largely as a result of this quick action, the case settled and Dr. B paid less than $10,000 to Rebecca to make her go away. Unfortunately, she also had to pay her lawyer over $25,000 to defend the case to settlement. And this was a very good result under the circumstances. Without expert guidance and legal counsel, Dr. B would likely have been out-of-pocket six figures.
In advising Dr. B on how to deal with this issue in the future, I strongly urged her to stop any employer-sponsored religious devotional practices in the office. I felt, and feel, that this type of thing creates potentially devastating exposure for the doctor no matter how the practices are conducted.
In the guidance, the EEOC refused to establish a bright line rule. It decided that any such matter would be decided under the "reasonable accommodation" and "undue hardship" tests. Thus, the doctor is now required to address any religious issue on a case-by-case basis.
The "reasonable accommodation" test is pretty easy to deal with in the context of conflict between an employee's work schedule and religious observance off premises. On-premises activities, however, create real problems. The EEOC gives an example of such issues. In one example, a staff member who works in a relatively private area and a front desk employee both belong to the same church. The pastor hands out posters and urges the parishioners to display these at work. Both employees put the posters up. The EEOC guidance states that the employer may not order the back room staff member to take the poster down, but that it may be an "undue hardship" to allow the front desk poster to remain up because it may suggest an endorsement by the employer of the beliefs expressed, which may upset some patients and cause the employer loss of business.
The EEOC, however, also counsels that the employer must take care that co-workers are not discriminated against or harassed by those on staff who are engaging in religiously inspired activities. If the employer is required by law to allow an employee to evangelize her co-workers (perhaps, for example, by passing out literature at work), the employer then risks exposure to a claim of discrimination by a co-worker offended by the conduct.
The agency strongly recommends that every employer implement a strong, clear policy both affirming the duty to provide reasonable accommodation and anti retaliation. The McKenzie Employment Policy Handbook has been written to accomplish these recommendations. In addition to the robust employee concern policy, our handbook provides for exit evaluations that will elicit any concerns of the departing employee about her treatment by the doctor or staff. This gives a heads-up that there may be issues down the road, and allows the doctor to prepare for any future claims. Too often, the doctor's attitude towards a departed employee is "out of sight, out of mind." In the context of discrimination claims—particularly now, with claims of religious discrimination—that attitude can cost many thousands of dollars. An employee has, in most states, a year or more to bring suit for alleged wrongful termination. "Employment at will" is no protection from these claims—this misimpression by many doctors has been costly.
The lesson to be learned from the EEOC guidance on religious discrimination is that the doctor can no longer—if he or she ever could—sail along with either an outdated human resources handbook or none at all. The risk of an employee suit is actually greater today than that of a malpractice claim. If the doctor would not continue in business without malpractice insurance, it makes even less sense to continue exposing the practice to uninsured claims by employees.
Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie's HRSolutions, Mike is the creator of the Employment Policy and Handbook, geared to providing dentists who are unsophisticated in the legal arena with a step-by-step policy manual.
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Email Mike at mike@thedentistsnetwork.net.
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