It’s the happiest time of year – except for employers facing the potential of a religious discrimination lawsuit from employees due to holiday decorations, gift exchanges, and other festivities.
While it may seem Grinch-like, such lawsuits are not uncommon. Just a few months ago, the Equal Employment Opportunity Commission (EEOC) filed suit on behalf of Shekinah Baez against her former employer, Pediatrics 2000. According to the New York federal court complaint, Pediatrics 2000 violated Title VII by denying Baez a reasonable accommodation for her religious beliefs and terminating her because of her religion.
A Jehovah’s Witness, Baez was instructed to plan the company’s 2018 holiday party. The EEOC alleged that Baez’s employer knew that her religious beliefs prevented her from attending a party for another religion (such as a Christmas party) or attend a party that involved drinking or dancing.
During the planning of the party, Baez learned that it would have holiday-themed decorations and entertainment that would make it inappropriate for her to attend, the EEOC said, such as dancers wearing sexy outfits and encouraging the employees to dance. Although other employees were excused from attendance for reasons unrelated to religion, the complaint accused Pediatrics 2000 of refusing Baez’s religious-based request to skip the bash and instead fired her.
That case is ongoing, but there are some ways for employers to avoid becoming a defendant in a similar action.
Title VII prohibits employers from discrimination based on religion and requires them to “reasonably accommodate employees’ sincerely held religious practices” unless it will cause the employer an “undue hardship.”
During the holidays, concerns about religious discrimination can arise in a host of situations, including the context of requests for time off. A Muslim employee may ask to have a break scheduled after sunset during Ramadan when fasting ends, or a Christian worker on the night shift may seek a night off for Christmas Eve mass. Applying the mandates of Title VII, that means employers should generally accommodate reasonable requests for religious observance unless it would cause an undue hardship.
To help reduce complications with time off, floating holidays might be a good option for some employers. This type of excused absence provides employees with the option to take time off for religious observances that they believe in without being required to take time for holidays they do not observe.
Office décor can also be an issue. The U.S. Supreme Court has actually spoken on the legality of holiday decorations. In 1989, the justices ruled in County of Allegheny v. ACLU Greater Pittsburgh Chapter that trees and wreaths are secular symbols, while decorations like a menorah or a creche send a religious message. The EEOC has adopted this position in its Compliance Manual.
Although that ruling applied to a public employer, leaving private employers with the leeway to endorse a religion and display religious symbols in their workplaces, employers may prefer to avoid any potential issues with holiday-neutral decorations – think snowflakes or candy canes – instead of setting up nativity scenes in the conference room and break area.
Employees interested in decorating their own space raise similar concerns. Prohibiting employees from displaying religious-themed holiday decorations in their own workspace could form the basis of a religious discrimination claim, but other employees working nearby could also be offended by an overt religious display. Employers should be careful not to suppress religious expression if the employee decorates their own personal workspace that is not visible to the public and doesn’t imply the employer’s endorsement of the religion.
Many companies have done away with the annual holiday party for a variety of reasons, from cost to inappropriate behavior by employees to concerns over inclusion. But for those that decide to celebrate the end of the year with their workers, proceed with caution.
To avoid problems, make sure that the party is a voluntary event. Jehovah’s Witnesses don’t celebrate holidays, for example, so requiring an appearance could constitute discrimination. Do not tie the party to a specific holiday and don’t schedule the celebration when it might conflict with a religious observance (such as the night Hanukkah begins).
Food can be tricky, so offer a variety of choices that include vegetarian options as well as items that can meet halal and kosher dietary needs. If alcohol is offered, be sure that nonalcoholic beverages are stocked as well. Similarly, any employer-sponsored gift exchanges should be entirely optional and not holiday-specific – avoid the “Secret Santa” moniker.
A case out of Arizona provides a cautionary tale about many of the dangers of the holiday season for employers. Marcy Rich sued her employer for creating a hostile work environment due to religious discrimination.
Rich, who is Jewish, alleged that her supervisor placed crosses on invitations to a mandatory company holiday party and hired carolers who sang songs with Christian lyrics (like “Christ our Lord”). The supervisor – a born-again Christian – told Rich it was inappropriate to decorate her cubicle with cutouts of a dreidel and a menorah and “Happy Hanukkah” cards.
The employer filed a motion to dismiss the suit, arguing that Rich’s claims were related to Christmas activities, not religion. But the court disagreed.
“This argument lacks merit,” the Arizona federal court wrote in Rich v. Arizona Regional Multiple Listing Service, Inc. “Title VII defines the term ‘religion’ to include ‘all aspects of religious observance and practice, as well as belief.’”
Keeping this principle in mind, employers can strive for a happy holiday season.