RELIGIOUIS DISCRIMINATION

Religious Discrimination

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A couple wanted to invite friends to use the condominium meeting room to conduct a bible study. Although the association did not require any group to provide insurance to cover damage that might be done by her friends, the board required the couple to purchase an insurance policy which they did believing that it would put an end to the controversy; but, that was not the case. Without notice to the members or to the couple the board decided to prohibit “Prayers and other religious services, observations, or meeting of any nature” to be conducted in or upon any of the common elements, and passed a rule

Not being satisfied with the new prohibition the board ordered the removal of all religious items from the building’s public areas, including a decorative angel fountain and a statue of St. Francis of Assisi donated by a resident in memory of a deceased loved one. A sign appeared on the community organ reading “BANNED” from playing “CHRISTIAN” music 

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(Ch.761 Religious Freedom Restoration Act of 1998)  According to Florida law the “Exercise of religion” means an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief. The prohibition applies only to government action. Essentially in order to limit the free exercise of religion the government must prove that the act it seeks to prevent “is in furtherance of a compelling governmental interest, and government must use the “least restrictive means”; furthermore, the court will apply “strict scrutiny” in deciding the issues of the case. The plaintiff has the initial burden of proving that his free exercise has been substantially burdened. The government’s action must be neutral and uniform in its application. It cannot coerce individuals into acting contrary to their religious beliefs. Protection under Florida law is broader then provided by Federal law.

Churches and other entities may not be required to solemnize any marriage or provide services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, or celebration of any marriage if such an action would cause the individual or entity to violate a sincerely held religious belief.  In other words, a religious institution that considers marriage to be exclusively between one man and one woman need not agree to perform a same sex wedding. The law also provides that an individual need not perform services in connection with a marriage that is not recognized by their religion. 

Attorney’s fees are granted if successful. The effect is to extend the protection of the law to persons who may not be able to afford an attorney.

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The Florida Constitution not only guarantees religious freedom as does the United States Constitution, but the Florida Constitution also prohibits penalizing the free exercise of religion; nevertheless, religious freedom does not extend to acts which are inconsistent with public morals, peace or safety. While the provisions of the Florida Constitution do not allow for public revenues to aid sectarian groups either directly or indirectly, a law does not violate the Florida Constitution which furthers both secular and religious ends where the state could not reasonably have obtained the secular goals by other means. 

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A college student recently was punished for not agreeing with the professor. According to the reports, the professor claimed that there are more than 75 possible human genders. The student maintained that according to biological science from its inception, there are only two gender types, male and female.  Furthermore if the student adhered to a religious belief in only two genders, male and female, religious freedom would be involved. 

One can define “male” “as of or denoting the sex that produces small, typically motile gametes, especially spermatozoa, with which a female may be fertilized or inseminated to produce offspring”. Those who argument against a duality of sexuality point out that there are people who have both male and female genitalia in the same “naturally occurring body”. But of course, these aberrations of nature are not at all natural in the sense that they normally do not occur.  Besides we already have a definition. Such a person with both male and female sex organs are called “hermaphrodites”.  Yet by the traditional definition, if the hermaphrodite can produce spermatozoa, then such a person meets the traditional definition of the male gender.   Since the most basic difference between a man and a woman is the ability to procreate, it would seem compelling to adhere to the traditional definition of who is a man and who is a woman based upon the ability to participate in the biology of procreation.

One could argue that this student’s First Amendment rights of free speech and religious freedom have been violated by State Action. According to the First Amendment to the Bill of Rights ““Congress shall make no law . . .  abridging the freedom of speech, or of the press.”

While the prohibition literally applies to “Congress,” the Supreme Court has held that Freedom of Speech is protected against all government agencies and officials, whether they be federal, state, or local. The rights of students to express themselves has been upheld by the Supreme Court of the United States in Board v Barnette, 319 US 624 (1943), in which the Supreme Court held that students could not be forced to recite the Pledge of Allegiance nor otherwise salute the flag against their will. In Tinker v Des Moines, 393 US 503 (1969), students could not be prohibited from wearing black arm bands to protest the Vietnam War. The Tinker court ruled that freedom of speech is not surrendered while in the classroom. 

In Keyishian v Board of Regents, 385 US 589 (1967), education in the classroom should foster a “wide exposure” to a “robust exchange of ideas”. 

Traditionally the right to speak does not include shouting “fire” in a movie theater. The Tinker case expressed this limit by holding that if conduct of a student “materially disrupts classwork” or invades rights of others, such speech is not protected by the First Amendment. 

In Bethel School v Fraser(478 US 675 [1986]), the Court ruled that a school was not violating a student’s rights when it suspended a student for the use of crude language in a speech to a school assembly. Said the Court: "It does not follow ... that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school... The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board."

A public school is an arm of the State and therefore constitutes State Action. Compelling a student to believe in more than two genders when his religion teaches there are only two, would violate many millennia of religious teaching and beliefs. The Florida Constitution prohibits the State from not only limiting religious freedom, but also prevents punishing the free exercise of religion. 

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Federal law prohibits religious discrimination in the workplace.Title VII, 42 U.S.C. 2000e-21 prohibits disparate treatment based upon religious beliefs or practices, or lack thereof. It is illegal for an employer to harass an employee based upon the employee’s religious beliefs or practices. Retaliation is also prohibited as is the denial of a reasonable accommodation of religious beliefs or practices; furthermore, moral or ethical beliefs are also protected even if they are non-theistic. 

What is “reasonable accommodation”?  An employer must allow for scheduling changes, voluntary substitutes, and shift swaps in order to accommodate religious beliefs or practices. Exceptions to dress and grooming rules must be allowed, as well as a change of job tasks or lateral transfers.  As long as the accommodation would not impose an undue hardship on the employer an accommodation must be made. 

Employers cannot discriminate in recruitment and hiring: Religious discrimination would not apply to a religious organization, but only to a secular one. Refusing to hire individuals who do not share the employer’s religious beliefs is a violation. On the other hand, limiting recruiting sources to a particular religious group is also a violation. An employer may also not discriminate based upon a name or other indicia that might be particular to a religious belief or practice.  It is unlawful to refuse to hire an applicant whose religion does not permit work on Saturday or Sunday. But, what if a person cannot work on Wednesday night? If a person cannot work on Wednesday night, the person must tell the prospective employer because it is not generally understood that Wednesday is a religious attendance day. (Sunday, Saturday are generally known); nevertheless, the employer must advise the applicant of the job requirements so that the applicant has notice of a possible conflict with the person’s religious beliefs.

Neither a specific request for accommodation nor an employer’s certainty of a religious belief or practice is necessary to impose liability on the employer. The employer should ask the applicant if an accommodation is required. Neutral work rules are not a defense for the employer. Disparate treatment is a way to prove illegal employment discrimination. An employee who makes a disparate treatment claim alleges that he or she was treated differently than other employees who were similarly situated, and that the difference was based on a protected characteristic. Employers have a duty to properly train their employees who recruit or interview applicants. If the company has not provided this training, one could argue that it is evidence that the applicant was not properly interviewed and was not properly advised of job duties.

It is not only Christian or Jewish religions that are protected. At least one court has protected the beliefs and practices of “Satanists” and “Wiccans”.  An employer should not ask what religion the employee is. Arguably it could be proof that employee was not hired due to religious beliefs. There should be a logical reason for asking; ask for example, the applicant can work on Wednesday or Sunday or Saturday. If the applicant is wearing a head scarf that is notice of a religious belief and then asking about ability to perform job duties with accommodation is probably advisable. 

What Qualifies as “Undue Hardship”? It must be more than a “de minimis” (insignificant) cost to the employer, or impact on other employees. It is no defense to assert that “If I grant on exception to this person, everyone else will ask for the same accommodation”.  What if an applicant wants to wear dreadlocks and the employer has a policy against it? Then later a Rastafarian whose religious practice is to have dreadlocks applies, while the employer can refuse to hire the person who desires dreadlocks, the employer may not refuse to hire the Rastafarian. 

Religious Discrimination (EEOC)

General Coverage

If a complaint against a business (or some other private employer) involves race, color, religion, sex (including pregnancy), national origin, disability or genetic information, the business is covered by the laws we enforce if it has 15 or more employees who worked for the employer for at least twenty calendar weeks (in this year or last).

Age Discrimination and Coverage

If a complaint involves age discrimination, the business is covered by the laws we enforce if it has 20 or more employees who worked for the company for at least twenty calendar weeks (in this year or last).

Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.

Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion.

Religious Discrimination & Work Situations

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Religious Discrimination & Harassment

It is illegal to harass a person because of his or her religion.

Harassment can include, for example, offensive remarks about a person's religious beliefs or practices. Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Religious Discrimination and Segregation

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or feared customer preference.

Religious Discrimination & Reasonable Accommodation

The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.

Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

Religious Accommodation/Dress & Grooming Policies

Unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee's observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).

When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.

Religious Discrimination & Reasonable Accommodation & Undue Hardship

An employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

Religious Discrimination And Employment Policies/Practices

An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment.