The Lawletter Vol 39 No 2
John Buckley, Senior Attorney, National Legal Research Group
Although sexual harassment is now a well‑known pitfall for employers, the potential exposure to liability for harassment based on religion often receives less attention. Recent decisions from state and federal courts show, however, that employers must be proactive to avoid potential claims based on religious harassment. See May v. Chrysler Group, LLC, 716 F.3d 963 (7th Cir. 2013); Cowher v. Carson & Roberts, 40 A.3d 1171 (N.J. Super. Ct. App. Div. 2012).
The case of Detail v. Best Chevrolet, Inc., 655 F.3d 435 (5th Cir. 2011), serves as a cautionary example for employers. In that case, a used-car salesman asserted a claim of religious harassment against his former employer. More specifically, he claimed that when his supervisor learned of his request for time off to attend a church event on the morning of July 4, the supervisor declared, "[I]f you go over there, I'll fire your f‑‑‑ing ass." Id. at 438. The plaintiff claimed that the supervisor's preventing him from attending his church on July 4 under the guise of requiring him to be at work had been pretext, because he had been forced to come in early that day, well before anyone else. Further, when the supervisor admonished the plaintiff early that morning to get out on the floor, the plaintiff replied that he was reading his Bible. The supervisor made other disparaging comments related to the plaintiff's religion, such as "God would not put food on your plate" and "go to your f‑‑‑ing God and see if he can save your job." Id. The plaintiff alleged that these comments created a hostile environment and resulted in his constructive discharge.
The district court granted summary judgment, finding that these and other comments, which were made over a two‑month period, were stray remarks and did not create a hostile environment. The Fifth Circuit Court of Appeals reversed the grant of summary judgment. Although the disparaging comments, considered separately, may not have been sufficiently severe or pervasive to establish an actionable claim, the court explained that a continuous pattern of less severe incidents can create a hostile work environment in violation of Title VII.
A simplistic approach to the issue, such as barring religious expression at work, is more likely to backfire and result in a discrimination claim than it is to insulate an employer from liability. See EEOC v. Univ. of Chi. Hosps., 276 F.3d 326 (7th Cir. 2001) (finding that prohibition of religious articles in office constituted evidence of religious discrimination); Altman v. Minn. Dep't of Corr., 251 F.3d 1199 (8th Cir. 2001) (finding discrimination based on employer reprimand of Christian employees for expressing religious objection to diversity training related to homosexuality). Thus, employers must be circumspect in the promulgation and enforcement of a policy prohibiting religious harassment in the workplace.