Wal-Mart v. Dukes, No Glue in Aisle 23
[Readers: Set forth below is a thoughtful and detailed analysis of the Supreme Court's decision of Walmart v. Dukes. The analysis was prepared by my colleagues, Doug Christensen, Zeb Curtin and Courtney DaCosta. If you have any questions regarding the decision, do not hesitate to contact them at the following numbers and email addresses: Doug, 612.340.8875 or christensen.doug@dorsey.com; Zeb, 612.492.6085 or curtin.zeb@dorsey.com; and Courtney, 612.492.6017 or dacosta.courtney@dorsey.com.
Note, too, that on at 11:00 a.m. on Wednesday, July 20, 2011, the authors will present a free Webinar on the implications of the Dukes decision, "Wal-Mart Stores v. Dukes, the New Landscape for Employment Discrimination Class Actions." If you would like to participate in the Webinar, you can register by contacting Doug, Zeb or Courtney via email, or by accessing our firm's Website, www.Dorsey.com, and clicking on this same article. At the end of the article is a Webinar registration button.
I am hopeful that the detailed analysis below will provide you a clear understanding of the decision and its practical ramifications. Regards, Roy]
Walmart v. Dukes, No Glue in Aisle 23
By: Doug Christensen, Zeb Curtin and Courtney DaCosta
The most sweeping putative employment-discrimination class action in history was not too big to fail. The United States Supreme Court has rejected an effort by three female employees of Wal-Mart to represent a class of some 1.6 million women who had been employed by the company at its 3,400 stores nationwide at any point since 1998 and who allegedly had experienced gender discrimination in the areas of promotions and compensation. The class, proceeding on both disparate-impact and disparate-treatment theories, sought billions of dollars in backpay, as well as injunctive and declaratory relief, to redress Wal-Mart’s alleged violations of Title VII. After the case was filed in 2001, the United States District Court for the Northern District of California certified the class in 2004. The Ninth Circuit affirmed in a 2010 en banc ruling.
For a case to proceed as a class action in federal court, plaintiffs must demonstrate all four requirements of Rule 23(a) of the Federal Rules of Civil Procedure: that (1) the class is sufficiently numerous that “joinder of all members is impracticable,” (2) questions of law or fact are “common to the class,” (3) “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” and (4) “the representative parties will fairly and adequately protect the interests of the class.” Additionally, they must satisfy one of three standards under Rule 23(b). The Dukes class was certified under Rule 23(b)(2), which requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”
A unanimous Supreme Court reversed the grant of class certification on June 20, 2011. The Court did not decide whether Wal-Mart had, in fact, discriminated against the women, only whether they could proceed as a class. Justice Scalia authored the opinion of the Court, concluding that class certification was improper under Rules 23(a)(2)—the “commonality” requirement—and (b)(2). Four Justices joined the Court’s opinion with respect to Rule 23(b)(2) while dissenting on the commonality issue. Read more
Roy’s Analysis of Quirky Question # 158, Reporting Harassment to the Harasser
Quirky Question # 158:
Our company has a sexual harassment policy. The policy makes clear that an employee who feels as though he or she has been harassed should report the problematic conduct to our Director of Human Resources. The policy also provides that, if more convenient, or for any other reason, the employee also can report the harassing behaviors to anyone else in management. Essentially, we’ve tried to make it as easy as possible for an employee to report harassment so our company can address the employee’s concerns effectively.
One of our employees recently filed a Charge of Discrimination with the EEOC. She claims that she was sexually harassed by the Director of Business Development, one of our company’s managers, and describes some pretty serious conduct. In her Charge, she contends that she directly confronted this individual and advised him that his behaviors were unwelcome. She also stated in her EEOC Charge that her direct communications with this individual constituted her “report” of sexual harassment to company management.
Surprise, surprise, our Director of Business Development never said anything to anyone else about this harassment “complaint”. Is this legit? Can the sole report of the harassment by the alleged victim of the harassment be made to the harasser?
Roy’s Analysis:
You pose an intriguing question – does it suffice for a harassment victim to “report” the harassment to the harasser or must she also, or alternatively, register her harassment complaint with someone else in management? You may or may not have realized it but your inquiry raises an interesting aspect of the U.S. Supreme Court decisions of Faragher and Ellerth, which I will discuss below.
As you describe, your company has a sexual harassment policy. (Every company should but not every company does.) Further, as you point out, your policy is designed to facilitate the reporting of problematic behaviors. Your employees can report their concerns to the Director of Human Resources or others in management. Of course, this verbiage in your policy is what, at least in part, has caused the problem. Read more
Favoritism or Discrimination? Quirky Question # 149
Quirky Question # 149:
A female employee of our company filed a Charge with the EEOC that she has been discriminated against because one of our executives is involved in a relationship with a subordinate female employee. Our employee argues that this person is receiving preferential treatment and that she is being deprived of opportunities as a result. She claims that this is gender discrimination in violation of Title VII. We have confirmed that the executive is involved in a relationship with the other female employee. But, we do not understand how this could constitute a violation of Title VII.
Roy’s Analysis:
Your perplexity is justified. Most courts that have examined this issue agree with your observation that this type of “favoritism” does not violate Title VII. In my view, the issue is easier when the complaining employee is the same gender as the employee allegedly receiving preferential treatment. (At the end of this analysis, I’ll entertain the idea of whether a male employee could assert a claim of discrimination based upon his boss’s romantic relationship(s) with one or more female employees, assuming they were accompanied by some tangible employment benefit for which he otherwise might have been eligible.)
Before turning to the specifics of your question, let me address generally the questions that can arise when there is a relationship between an executive and one of the executive’s subordinate employees. Since your fact pattern described a male executive and a female subordinate, I will use that gender alignment for my discussion. Of course, the same issues could be implicated if the executive was a woman and the subordinate was a man. Ditto with respect to relationships among individuals of the same gender.
The first issue you need to consider is whether the relationship between your executive and his subordinate is “welcome”. As you likely know, this should not be confused with “consensual”. As the U.S. Supreme Court made clear in the first sexual harassment case to reach the high court in 1986, Meritor Savings Bank vs. Vinson, even a “consensual” relationship can constitute a violation of Title VII if it is not “welcome”. As the Supreme Court pointed out in that case, there was substantial evidence that the sexual relationship between the executive and his female subordinate was not “welcome” even though the two individuals had had sexual relations on multiple occasions over a protracted period. Thus, now that you know there is a relationship between these two employees, you need to assure yourself (and the company) that the relationship truly is welcome.
Let’s assume that the relationship is being enthusiastically pursued by both members of the couple. This leads to the second issue you may need to monitor. What will happen if one member of the couple wants to end the relationship? This problem could be exacerbated if the subordinate female employee wants to end the relationship and the male executive wants to continue the relationship. Will he penalize her in any way? Will he retaliate against her for ending the relationship? Will he simply start treating her negatively? Or, will he pressure her, either through threats or promises of benefits, to continue in the relationship? You need to ensure that your female employee knows she has a reporting option if the relationship comes to an end and she feels the end of the relationship is adversely affecting her professionally. And though I suggested that the problem is exacerbated if the subordinate female employee is the one who ends the relationship, your company may not be in the clear even if the executive is the one who decides to terminate the relationship. In this context as well, there could be problems associated with the relationship’s end. For example, if the subordinate employee is not selected for a promotion or for a particular assignment, will she conclude that she missed out on those opportunities because her boss decided to end the relationship? Will the executive, either intentionally or unintentionally, treat her differently once the personal relationship between the two of them has ended? Will he try to minimize contact with her, perhaps with a corresponding loss of opportunity for her, even if his motivations are to reduce the tension between them?
A third issue that you may wish to monitor is the possibility that the executive becomes involved in serial relationships with subordinate female employees. As you can imagine, this behavior can be quite disruptive in the workplace. Even worse, there are a host of potential problems if the executive is involved with more than one person at a time, or if one member of the “couple” considers it more exclusive than the other. Needless to point out, these situations inject a variety of problems into the working environment that neither the company nor its Human Resource professionals should have to contend.
Yet a fourth question, close to the inquiry you posed, but nevertheless distinct, is what impact the relationship is having on others in the same business unit. Perhaps they are accepting of the relationship; perhaps not. (From the fact that one of your other female employees believes the relationship constitutes a Title VII violation, it would appear that the latter is true.) You need to understand that these types of relationships can have a corrosive effect on the work environment. Particularly where favoritism is involved, other employees can justifiably become resentful. If they feel they are being deprived of opportunities, or that a “less qualified” person is receiving certain opportunities or benefits, not because of merit but because of her relationship with the boss, this situation can be demoralizing. Of course, these observations hold true for spouses working for the same company, parent/child relationships, or other familial relationships. It is precisely because of the potential difficulties associated with these kinds of situations that some companies have adopted anti-nepotism policies or non-fraternization policies. (I previously have written on the subject of Non-Fraternization policies; use the “View By Topic” bar above to find the Index to past articles and scroll down to “Non-Fraternization”. See Quirky Question # 30.) These policies are not without their own problems, but they at least help minimize the risks of actual favoritism or perceptions of favoritism by other employees.
Of course, short of adopting an anti-nepotism policy or a non-fraternization policy, your company could simply adopt a policy whereby no employee will be permitted to supervise or evaluate a subordinate employee with whom he or she is involved. I recognize, however, that one size does not fit all and for some companies the size of the enterprise will preclude the possibility of a transfer. Moreover, even in larger organizations, there are complicated issues that must be addressed, including questions regarding how to address a situation where the relationship develops after the policy has been adopted, how to respond to employees who attempt (perhaps justifiably to conceal the relationship), how to determine which employee should be transferred to another business unit, etc.
With some of these general principles in the background, let’s consider your specific question. Does it constitute a violation of Title VII for one of your executives to have a personal relationship with a subordinate female employee, even if this relationship results in “favored” treatment of that employee? Most likely, no. Could another female employee, who feels disadvantaged by the relationship and decisions stemming from the relationship bring a Title VII claim? As I have learned through many years of practice, employees can (and do) bring claims for a host of reasons, some legitimate and some not, and there is little an employer can do to stop it. Is your complaining employee likely to prevail or her Title VII favoritism claim? No.
By way of example, some of these issues were addressed last year in an analogous case decided by the Tenth Circuit Court of Appeals, Anderson v. Oklahoma State University Board of Regents, No. 08-6249 (August 17, 2009). Anderson, an employee of OSU, reported that his supervisor, Michael Hughes, was having an affair with a female employee of the University. Anderson complained that this affair led to the female employee receiving more favorable treatment than he and other employees who reported to Hughes received. OSU investigated and concluded that Hughes and the female employee “were not having an inappropriate relationship in the workplace.” (This observation by the court begs the question of whether Hughes and his subordinate female employee were having an “appropriate” relationship in the workplace.)
Anderson claimed that after he reported the affair, he was excluded from management meetings and other departmental activities. Three years after he reported the alleged affair, Anderson was terminated, ostensibly as part of a reduction in force. He sued, claiming that he was fired in retaliation for reporting his boss’s affair and that the RIF explanation was merely a pretext for his illegal discharge. The District Court, however, granted summary judgment, ruling that Anderson’s report of the affair did not amount to protected opposition to discrimination.
As the Tenth Circuit pointed out, it previously had held that “preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination.” Taken v. Okla. Corp. Comm’n, 125 F.3d 1366, 1370 (10th Cir. 1997). The court opined further, “Because the plaintiffs in Taken id not present any evidence that they were denied employment benefits because they refused sexual advances, were subjected to a hostile working environment, or otherwise were discriminated against because of their gender, their allegations that their supervisor selected his paramour/employee for promotion because of their romantic relationship did not state an actionable Title VII claim because the favoritism was based on a voluntary romantic relationship and not gender differences.”
Affirming the District Court’s dismissal of Plaintiff’s claims, the Tenth Circuit emphasized, “the dispositive issue here, as in Taken, is that the supervisor’s affair and related favoritism are not, without more, actionable under Title VII.” Although the court referenced one circuit’s inconsistent holding, it pointed out that the 2nd, 4th, 5th, 7th, 8th and 11th Circuits all have held that “favoritism” of an employee, based on a consensual romantic relationship, is not actionable under Title VII.
In short, the clear weight of federal judicial authority does not recognize the type of claim that your employee has asserted. (Note, however, that it is beyond the scope of this analysis to assess how state courts, interpreting their parallel state statutes, might assess this issue.) Your intuition that a welcome romantic relationship, even one accompanied by some favoritism, does not constitute a violation of Title VII, is consistent with most judicial opinions on this subject.
At the outset of this analysis, I suggested that, perhaps, an employee who is the same gender as the supervisor would have a more colorable claim of discrimination. Clearly, as the Anderson case illustrates, this would be an uphill battle at best. But, for example, hypothetically, a male employee making the claim of discriminatory treatment as a result of his male boss’s involvement with a subordinate female employee would have a more viable claim that he was being denied certain opportunities on the basis of gender (unless his boss was bi-sexual). The complaining male employee could argue that he would never be considered for a romantic relationship with his heterosexual male boss, and therefore, would never be eligible for the favored treatment enjoyed by his female colleague.
Perhaps this point can be illustrated by a less emotionally charged example emanating from the work environment. By way of analogy, if a male supervisor was an avid golfer but only took subordinate male employees golfing, and if those who golfed with the supervisor received preferential treatment with regard to benefits, promotions, work opportunities, etc., arguably a female subordinate excluded from the “golf group” would have a colorable Title VII claim. Now, let’s assume that there really was evidence that the male supervisor favored, in tangible ways, the female employee (or employees) with whom he had romantic relationships, even if they were welcomed. Would the male subordinate employees excluded from the “romantic partners group” have a colorable claim? Based on the judicial decisions in this area, the answer is likely no. But the claim may not be as farfetched as might first appear.
Discrimination on the Basis of Color, Quirky Question # 134
My company is planning a reduction in our workforce, which largely consists of African-Americans. I understand that when a company conducts a mass layoff, it should make sure the layoff does not disproportionately affect older workers, women or men, or employees of a particular race, or else the company risks being accused of discrimination. But doesn’t the law also protect employees from discrimination based on color? If so, do we also need to worry about letting go a disproportionate number of “dark-skinned” or “light-skinned” employees? How would we even go about measuring this? I know our African-American workforce consists of a broad spectrum of skin tones.
Joel’s Analysis:
[Readers: Quirky Question # 134 was posed to my colleague Joel O’Malley. Joel’s analysis is set forth below. If you have any comments, do not hesitate to contact Joel at 612.492.6727 or at omalley.joel@dorsey.com. Additional information about Joel is available at http://www.dorsey.com/omalley_joel/. If you have any questions or comments, please send me a note at ginsburg.roy@dorsey.com. Regards, Roy]
You raise a good question about whether a “disparate impact” claim can successfully allege discrimination based on color. While intriguing in theory, I think for practical reasons such a claim could not succeed, so I do not believe that you need to agonize over your employees’ varying skin tones when planning your reduction in force. To reach my conclusion, it is best to begin with a brief summary of anti-discrimination law.
As you note in your question, anti-discrimination law prohibits discrimination against individuals in certain protected classes, based on characteristics such as age, sex, race, national origin, or color. Employees generally can assert discrimination claims under two legal theories: disparate treatment and disparate impact. Disparate treatment claims alleging race, sex, age, or national origin discrimination typically involve an employee in the protected class claiming her employer intentionally treated her less favorably than persons outside of the employee’s protected class. For example, a female employee might sue claiming her employer denied her a promotion, instead advancing a less-deserving male coworker. In such a scenario, the distinction between the allegedly disfavored plaintiff and the favored coworker is based on a clear and evident difference—the employees’ sex.
Disparate impact claims do not allege intentional discrimination, but rather encompass the type of scenario you describe here – a facially-neutral policy (e.g., a reduction in workforce based on financial or business reasons) that disproportionately affects individuals in a protected class. For example, a female employee might sue after a mass layoff claiming that the group of terminated employees included too many females, while too few female employees were spared termination.
Cases involving alleged color discrimination are relatively rare, and typically are brought under a disparate treatment theory. In color-based cases, the aggrieved employee can be – and often is – the same race, sex, age, and national origin as the allegedly favored coworkers and the allegedly discriminatory supervisor. That employee, however, claims she is, in the employer’s eyes, “too dark” or “too light” in color. The cases, while different than those involving other protected classes, are straightforward. To determine the merits of such cases, the court must, among other things, compare the relative skin tones of an individual plaintiff and a limited number of her coworkers.
As an example, in one older case, a light-skinned Pakistani employee sued his Pakistani employer, claiming darker-skinned Pakistani employees were favored. Ali v. Nat’l Bank of Pakistan, 508 F. Supp. 611 (S.D.N.Y. 1981). Another, more recent case involved a light-skinned Native-American employee claiming that her employer favored darker-skinned Native-American employees. Nettle v. Cent. Okla. Am. Indian Health Council, Inc., 2009 U.S. App. LEXIS 14470 (10th Cir. July 1, 2009) (unpublished). In yet another case, an employer defended itself against an employee claiming that light-skinned employees were favored, by arguing that it had in fact replaced the dark-skinned plaintiff with a darker-skinned worker. Brack v. Shoney’s, Inc., 249 F. Supp. 2d 938 (W.D. Tenn. 2003). The congressional discussions leading to the enactment of the anti-discrimination laws specifically noted the laws’ applicability to cases like these, expressly noting the law would apply when, for example, an employer refused to hire an African-American because her skin pigmentation was “too dark,” even if the employer was also an African-American. See Cong. Rec., Feb. 8, 1964, at H-2552-2555.
Unlike these intentional discrimination cases, there do not appear to be any published court decisions involving claims that an employer’s facially-neutral practice or policy had a disparate impact on persons of a particular color. In theory, such a claim could exist, like the previous example of a female worker suing her employer following a mass layoff. In your situation, a dark-skinned African-American employee could argue your company’s layoffs, while ostensibly based on neutral criteria, resulted in the termination of too many darker-skinned employees, while too few darker-skinned employees remained employed.
Perhaps the chasm between theory and reality with these color-based disparate impact cases stems from the practicality of enforcing a claim. First, there is the problem of classifying skin-tone. Even scientists have a difficult enough time categorizing the wide variety of skin pigmentation in the human race – first using the complicated 36-tone Von Luschan chromatic scale, then more recently using the six-tiered Fitzpatrick scale (primarily for grading sunburn risk). We cannot expect an employer to do much better. While it is relatively simple to determine whether an employee is male or female, of one race or another (though the idea of race does have its complexities), or to determine in the disparate treatment context whether a single plaintiff is darker or lighter than a few allegedly favored coworkers, categorizing large numbers of employees based on skin tone is not a “black or white” question.
Second, even if scientists (and employers) could perfect the practice of color-grading, doing so at the workplace or in the courts seems rather distasteful. In fact, despite Congress’s apparent approval of color-based discrimination claims, several courts, even in disparate treatment cases, have cautioned the judiciary to be wary of “the unsavory business of measuring skin color and determining whether the skin pigmentation of the parties is sufficiently different to form the basis of a lawsuit.” See Sere v. Bd. of Trs. of the Univ. of Ill., 628 F. Supp. 1543 (N.D. Ill. 1986); see also Franceschi v. Hyatt Corp., 782 F. Supp. 712 (D.P.R. 1992) (noting that courts have “shied away from grappling with cases that deal with subtle degrees of intra-racial discrimination”); Walker v. I.R.S., 713 F. Supp. 403 (N.D. Ga. 1989) (observing the “genuine and substantial” difficulties in comparing skin pigmentation).
An additional problem with color-based disparate impact claims is the lack of a legal demarcation instructing an employer how to test the lawfulness of a facially-neutral practice. For sex, the employer can easily determine whether men or women are disproportionately impacted. Likewise, determining race or national origin represented in the workforce may be accomplished without much difficulty. Even age – which, like color, exists in the workplace in a broad range – contains a bright-line cutoff under federal law, with individuals age 40 and older afforded protected from discrimination. In contrast, skin color does not have any clear cutoff.
Without such a cutoff, we cannot expect employers to ensure employees throughout the skin-tone spectrum are equally affected or disaffected by an employment practice. Courts in age-based disparate impact cases have declined to accept employees’ requests for a protection against such “subgroup” discrimination. For example, in EEOC v. McDonnell Douglas Corp., 191 F.3d 948 (8th Cir. 1999), employees claimed that a workforce reduction, while not disproportionately affecting employees age 40 and older, disproportionately affected employees age 55 and older. The Eighth Circuit Court of Appeals rejected this argument. The court explained that “if disparate-impact claims on behalf of [age] subgroups were cognizable . . . , the consequence would be to require an employer engaging in a [reduction in force] to attempt what might well be impossible: to achieve statistical parity among the virtually infinite number of age subgroups in its workforce.” Id. at 951. Given courts’ reluctance to allow a disparate impact claim based on an age subgroup, courts would likely also recognize the analogous difficulties with a color-based theory. Certainly the Eighth Circuit’s reasoning applies to color-based disparate impact lawsuits: it may well be impossible for an employer implementing a neutral practice or policy to achieve parity among various categories of skin tone (be they six or thirty-six distinct subgroups) in its workforce.
For all of these reasons, I am skeptical as to whether a legitimate color-based disparate impact case could ever be properly pled in court. In sum, then, continue to test for whether your company’s layoff has a disproportionate impact on employees with respect to age (forty and older), gender, race, and national origin. But there is little reason, and inherent practical difficulty, in also testing for color-based disparate impact.
Another Religious Accommodation Issue, Quirky Question # 122
I read the religious discrimination question posed to your colleague in Seattle. We have a slightly different issue. All of our employees are required to wear identification tags when they are in our buildings. The IDs have their pictures on them. One of our employees recently advised us that it violated his religious beliefs to have his photo taken or to include his photo on the ID tag he wears. He has asked us to accommodate his religious beliefs by foregoing our requirement of photo IDs. We believe that the photo IDs serve a number of important purposes at our company. Must we accommodate his request to provide him special treatment on this issue.
Roy’s Analysis:
You pose an interesting question regarding whether you are obligated to accommodate one of your employee’s religious beliefs by allowing him to disregard your policy requiring to display his photo on your company ID tag. As a prefatory comment, I’d start with a refrain you’ve heard from me in previous Blog analyses – much of employment law involves a balancing act between two (or more) competing societal interests. If an employer and employee cannot amicably resolve how these conflicting interests should be reconciled, courts will assume the responsibility for sorting out which societal interest should predominate. At times, general principles can be articulated that will have widespread application. At other times, however, the governing principles will be entirely dependent on the specific facts of a case.
Let me illustrate the above observation with an example. In general, as you may have seen from my other Blog pieces addressing accommodating genuine religious beliefs, courts often focus on whether the requested accommodation would cause the employer an undue hardship. But that general principle can be dramatically affected by the specific facts of a particular case.
You did not describe the nature of your business. If, for example, your company manufactured hockey sticks, and there were not significant theft or security issues that mandated your company’s use of photo IDs, the accommodation sought by your employee might seem reasonable. If, however, your company was a private security contractor with responsibility for guarding spent nuclear fuel rods, the requirement that every employee wear an identification card, with his or her picture, may be absolutely essential. Accommodating an employee’s religious beliefs in this job environment would involve a dramatically different calculus than it would for a hockey stick manufacturer.
A recent case from the Eastern District of Pennsylvania, Cherry v. Sunoco, Inc., No. 07-cv-2235 (August 17, 2009), involved some of these issues. The plaintiff, John Cherry, worked as a refinery operator at Defendant Sunoco’s Philadelphia refinery. When he was hired in early 2001, he informed his employer of his religious beliefs, which were grounded on the Church of the True and Living God, a sect of Hebrew Israelites, that apparently prohibits its members from posing for pictures or photographs or from carrying such pictures or photographs on one’s person. At the time of Cherry’s hiring, Sunoco was willing and able to accommodate his religious beliefs, and issued him an employee ID without a photograph.
Even after the events of September 11, 2001, the defendant employer still was able to accommodate plaintiff’s religious beliefs and did not compel him to pose for or carry a photo ID. Sunoco did require plaintiff to report to security when he came into work, and, at times, plaintiff’s supervisor would have to verify his identity if the security guard on duty did not recognize him.
In the post-9/11 world, however, Congress began implementing various statutes to enhance our nation’s security. Among the statutory provisions enacted by Congress was the Maritime Transportation Safety Act (MTSA), with the US Coast Guard adopting regulations to “implement portions of the maritime security regime.” Sunoco, and specifically its Philadelphia Refinery where plaintiff worked (a port facility), was required to comply with the Coast Guard regulations by mid-2004. Defendant developed a Facility Safety Plan that required all employees at the Philadelphia refinery to carry a photo ID. At that point, plaintiff’s religious beliefs, which the defendant employer had accommodated for several years, became problematic.
Sunoco insisted that plaintiff pose for and begin wearing a photo ID. Plaintiff refused, re-explaining his religious beliefs, and proposing several alternative solutions (e.g., fingerprinting; iris scan; escort to job location). After checking with the Coast Guard as to whether any of these accommodations would suffice, and being informed that the photo ID requirement could not be waived, the defendant first suspended and later terminated plaintiff’s employment.
Upon his discharge, plaintiff sued under Title VII and the Pennsylvania Human Rights Act for religious discrimination. As discussed in other Blog analyses, to establish a prima facie case, a plaintiff claiming religious discrimination must demonstrate that he: a) held a sincere religious belief that conflicted with a job requirement; b) notified his employer of the conflict; and c) was disciplined for failing to comply with the conflicting requirement. The district court found that Cherry had established a prima facie case. Once a prima facie case is established, the employer may demonstrate that it made good faith efforts to accommodate the employee’s religious beliefs or that doing so would cause it an undue hardship. Because Sunoco acknowledged that it made no effort to accommodate the plaintiff’s religious beliefs once the MTSA and the Coast Guard regulations went into effect, the central issue in the Cherry case became whether Sunoco could accommodate plaintiff’s religious beliefs without experiencing an undue hardship.
As the trial court pointed out, “Under hardship is requiring the employer ‘to bear more than a de minimis cost’ in order to accommodate the employee’s religious practice. Economic, as well as non-economic costs can impose an undue hardship on employers. The Supreme Court has strongly suggested that ‘the undue hardship test is not a difficult threshold to pass.’”
Relying on analogous precedent, the district court concluded that it would constitute an undue hardship for an employer to require it to violate a valid criminal statute, thereby exposing its administrators to criminal prosecution and the possible consequences associated with prosecution. Because the MTSA and the Coast Guard regulations mandated that all of the port facilities’ employees carry and display a photo ID and because there were potential criminal consequences for violating that requirement, the court concluded that it would cause the employer an undue hardship to accept any of the accommodations proposed by the plaintiff-employee.
The Cherry decision is instructive, though it may not be dispositive of the parallel situation your company is confronting. To summarize, there are several critical issues you should examine when you are being asked to accommodate an employee’s religious beliefs. First, are the religious beliefs sincere? Second, do the employee’s religious beliefs conflict with some work requirement? Third, has the employee notified your company of the conflict? Fourth, can you accommodate the employee’s religious beliefs? Fifth, would accommodating those beliefs cause your company an undue hardship (recognizing that establishing an undue hardship should not be limited to an economic calculus, and may not be a difficult burden to satisfy)? The Cherry decision also demonstrates the importance of considering whether the work requirements or rules to which the employee has objected for religious reasons are based upon any external variables (e.g., federal statutes, state statutes, criminal law proscriptions, common law principles, significant public policies, etc.). It may be that the most compelling justification for rejecting the employee’s request for an accommodation is grounded upon a source external to the employer rules and requirements.
Again, however, it may be perfectly appropriate to accommodate your employee’s request for a religious accommodation, including the specific request relating to your employee’s desire to avoid having his or her picture taken or wearing a photo ID. As is evident in the Cherry case, despite a large workforce (over 1500 employees at the Philadelphia facility), Sunoco was able to accommodate its employee’s request to avoid using a photo ID for the several years preceding the passage of the MTSA and the Coast Guard regulations that altered the ID equation for port facilities. It could be that your company has equally compelling justifications for requiring employees to display a photo ID and it could be that allowing your employee to disregard this requirement would cause your company an undue hardship. But, before you leap to that conclusion, consider the mix of issues carefully. You may discover that this request can be accommodated relatively easily with virtually no hardship, undue or otherwise, to your company.
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