Religious Discrimination Complaints Up

By: Elaina Smiley, Esquire es@muslaw.com

The number of complaints to the Equal Employment Opportunity Commission about workplace discrimination against employees because of their religion has doubled in the last 15 years. Filings complaining about religious discrimination jumped to a record 2,880 last year. On July 22, 2008, the EEOC issued a new compliance manual on religious discrimination, which offers a comprehensive review of the EEOC’s policies regarding religious discrimination, harassment and accommodation. The EEOC also offers a “Best Practices” book to assist employers.

The Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing or conditions of employment. Employers cannot treat employees of one faith more or less fairly than other employees, nor can they force employees to participate in or not participate in any religious activity.

One of the most difficult issues for employees is the concept of “reasonable accommodation.” Employers must reasonably accommodate the sincerely held religious practices of employees unless to do so would proved to be a hardship to the employer. For example, in a recent Pennsylvania lawsuit, a federal court found that asking an employee to find her own replacement for Sunday work may not be a reasonable accommodation if the reason the employee needed to switch shifts is religious.

Employers should make sure that their anti-discrimination policies specifically define and prohibit religious discrimination and harassment and provide an effective procedure for reporting, investigating and correcting such acts. Employers should also establish policies in dealing with religious accommodation requests and train supervisors and managers on how to best handle religious issues in the workplace.

GINA May Prove Challenging to Employers

By: Elaina Smiley, Esquire es@muslaw.com

A new law that prevents employers from making employment decisions based on genetic information will place another burden of regulatory compliance on employers.

The Genetic Information Nondiscrimination Act of 2008 (GINA), recently signed into law by President Bush, makes it illegal for employers, unions and insurance providers to discriminate on the basis of an individual’s genetic information and prohibits disclosure of such information except in very limited circumstances.

Called by some “the first major civil rights act of the 21st,” GINA prohibits employers from using genetic information when making decisions regarding hiring, firing, compensation, promotions and other terms and conditions of employment.

GINA prohibits employers from requesting genetic information from employees and their families. GINA provides some limited exceptions, such as information employers obtain under the Family Medical Leave Act. However, GINA does not address genetic information that employers may inadvertently receive under other employment laws. For instance, an employer engaging in discussions with an employee who requests an accommodation under the American with Disabilities Act could acquire genetic information covered by GINA.
The U.S. Department of Labor and the Equal Employment Opportunity Commission are in the process of developing the regulations that will tell employers what they must do to comply with GINA. The GINA provisions related to employers do not go into effect until November 2009.