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Logo of ASI 2015: Lift Him Up

Witnessing In the Workplace: Letting Your Light Shine While Avoiding HR & Legal Pitfalls

Steve Allred
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Whether you’re an employee who desires to witness for Jesus or an employer who wants to let your light shine through your business, this seminar will help you to understand your legal rights and responsibilities and avoid the legal pitfalls. In this seminar, we will explore federal statutory and case law (and some state law) regarding the rights of employers and employees to live out their faith in the workplace. Real-life cases and stories will be discussed and examples given, followed by a time for questions. 

Presenter

Steve Allred

Pastor of Yuba City in California. 

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Conference

Recorded

  • August 7, 2015
    3:30 PM
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Hi My name is Steve already and if you're wondering what some of this is this is witnessing in the workplace letting your light shine. Well avoiding the legal and human resource issues that could be pitfalls. Let me start with myself really quick here. My name is Steve or as I said I am a pastor in northern California at the uber city church and I'm also an attorney I work with the Church State Council which is the religious liberty arm of the Pacific Union conference in the Sacramento office as well as one down in Westlake Village and I'm licensed in a few different jurisdictions and some us want to tell you about really quick here since this is that A.F. I really admire A.S.I. is a free legal aid outreach that we do at our church twice a year and it's just a great way to this is one of our posters from our most recent one to reach out to the community and basically do something a service for them that helps them to get attorneys together you could go to your church I'd love to see as I combine this with their medical clinics because it's just something that people can receive services get advance directives and power of attorney for fine if that kind of thing. A tale about our seminar today we're going to go through a couple of things on our commission is christian something that we know about probably were asked the question Should Christians assert their legal rights and defend the rights of others. Then we'll look at an overview of federal and state law regarding religion in the workplace and we'll talk about religious discrimination of others then we'll look at an overview of federal and state law regarding religion in the workplace and we'll talk about religious discrimination and accommodation of religion in the workplace. Now explain these terms here in a little bit. We'll talk about protecting expression of religion in the workplace talking about your faith. Well also as an employer. Or an employee avoiding being accused of harassment in the workplace enforcement remedies after that and then will take a little time for question answer at the end so getting questions just can't wait. You're free to raise your hand and also you know we can try to answer the question then but I prefer if you can if you wait till the end then we can just get through this and we'll have time for questions at the end. So a little disclaimer here before we get going. The entirety of the presentation that we're going to be having right now is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular situation or issue or problem. So let's talk about the commission that we have as Christians in the book of Acts. Jesus told the disciples when the Holy Spirit comes to you you will receive power. We need that power don't we. We don't have power without Jesus of the Holy Spirit. And then you will be my witnesses in every part of the world that's what we want isn't it. Including in the workplace that's we want to be witnesses there. And of course Jesus himself in the final chapter of Matthew twenty eight gave us what is known as the great commission go and make disciples right. And basically that is our commission as well to be witnesses. Ellen White in the book Christ object lessons book I just finished listening to on Audible dot com Great book. One of my favorites right now. Character is power she said the silent witness of a true unselfish godly life carries an almost irresistible influence. So when a thing doesn't always have to be loud it does not have to be with words could just be how we act and live. And I like that. You'll see why I mention this in the context of some of the cases will be looking at here of people who were trying to witness in the workplace and it kind of came off wrong. I got some questions for you. Should a Christian in four years and him. These are rhetorical questions I hope the law abiding citizens and people of integrity would you think. I think so much as possible right now there is the cabby out there in Acts five twenty nine the well known verse Peter in the other possible said we ought to obey God rather than people so when it comes to a conflict of you know the laws of the land and and principles that God's word tells us to abide by or specifics then of course we choose God's law over man's law. But Peter also remind us in Second Peter to eleven or seventeen that if we suffer for doing what's wrong it doesn't glorify God there's no glory or anything in that so we should be as much as possible law abiding. Should we be industrious hard working you know you ever maybe heard somebody complaining about you know getting bad treatment on the job but you know they're kind of lazy. It doesn't glorify God either. And so of course there are those verses don't be slothful in business Romans twelve eleven Whatever your hands find to do do it with your might. Ellen White again Christ object lessons told you it was a good book. It is the duty of every Christian to acquire habits of order thoroughness and dispatch. I want that there is no excuse for slow bungling work of character. There you go. Should we be respectful of the rights and freedoms of others. The good question is especially applies to any society as diverse and pluralistic as ours is becoming. How respectful should we be of the rights and freedoms of even people we disagree with well. Luke six thirty one of earth I want to share a few minutes into Terry it's the golden rule. What is the golden rule. So think about how you would want be treated if you were in a situation where you were being you know with someone who disagreed with you. All right. What about asserting and defending our legal rights. Now I remember I had someone ask me one time what I did. Four hours. The legal aspect of my work and I said well what I do is we actually help people who are being discriminated against in the workplace. And let's say it's an issue with the Sabbath and they can't get the Sabbath off or something like that will help them to try to negotiate with the employer and if necessary. And if they want to we feel like the Holy Spirit is leading that way we will actually even go to court for them etc and the person is not a bad witness. And and they I think were thinking of this verse here Benj not yourselves Vengeance is mine God says I will repay. But it's not my job to you know take vengeance and I would say absolutely Amen I agree. We should never have a vengeful attitude. Would you agree when it comes to anything honestly that's God's job. And I think love for God or neighbour must motivate all that we do sometimes love for God or neighbor actually as we'll see in a minute here motivates us I believe to even maybe taking some legal action. And I'm not saying that that's always what you do but perhaps you know instead of passively where you don't do anything when your rights are threatened or aggression that's where you take vengeance for yourself. I think Jesus gave us this for a third way to respond to evil you can read Matthew five thirty nine hundred forty two he talks about loving our enemies and turning the cheek. And what that looks like trying though she doesn't actually mean passive any and you can look at some scholarly work out there and what that meant in their culture it actually means maybe looking the person in the eye and trying to help them realize that you have a shared humanity and attitude I think is really the key with asking the question should we assert and defend our legal rights as Christians. You know some verses to look at if you're interested in this accept hundred thirty seven X. twenty two twenty five to twenty nine and also acts the twenty sixth chapter. Those are stories where Paul actually asserted and. I get volunteer attorneys together and they volunteer to help people it makes me very happy to see that. OK let's see Ellen White chimes in on this test which the church point five page fourteen we are not doing the will of God If we sitting quiet doing nothing to preserve liberty of conscience you know hold your hands and pray and that's all we're supposed to do right. Let there be more earnest prayer we should pray and then let us work in harmony with our precious other quotes as well that talk about this in fact the book the great controversy that we're studying through in a prayer meeting at our church she actually says there will be at the end of time people in high influential positions in government who will basically keep freedom there for the rest of us. So God does use law. He does use legal protections to help his work go forward. Should we defend freedom of conscience for those with whom we disagree what do you think this is a really touchy question nowadays because I actually just helped out a Muslim prisoner recently with a religious liberty issue. But first a council we were working on a case for this guy and some people were very offended that I would help a Muslim person out. And what you think about that but I know if I were in if the positions were reversed I would want his help. So why would I not help him and I think the verse here in Luke six thirty one says it all three does the same way you would want them to treat you agree with that. So what do you agree or not let's just kind of go through some of the federal and state statutes here and what I want to give you just an overview today of course we can't deal with the lot particularly from every state but I can give you a little overview of at least federal law and the Maine laws that deals with workplace issues when it comes to religion and discrimination is what's called Title seven of the Civil Rights Act in one nine hundred sixty four now by the way it's been amended over the years and they've added protections for religion. They likely has an anti-discrimination law for the workplace as well and some of those state laws actually have a lower threshold for businesses for example in California with the law I was talking about. It applies to businesses with five employees or less. And in California the answer's criminal nation laws apply to employees with her business with five employees or less but harassment occurring in any business even with one employee. The law protects that employee that makes sense. So Title seven is the federal law fifteen or more employees I think Washington state if you're from Washington has a lot called the Washington law against discrimination. If I get my mouse to work here it I believe applies to businesses with eight employees Yeah eight employees or more so. OK your state as area may apply to visit your employees. Now here's the link. Religious organizations are permitted to give employment preference to members of their own religion other words religious organizations in every state that I've been able to find at least in under federal law are exempt from Title seven's religious discrimination provisions that is NOT mean that religious organizations can discriminate on other bases though. Basically what the law says is if a religious organization has a religious reason for discriminating then it's OK that makes sense. So if you're an avid cyst a self-supporting ministry and will get into the talking about how do you determine if something is a religious organization or not. In a minute and you want to hire seven people well you should be permitted to do that. This also some people vassal What about with the new gay marriage law. And how's that going to apply you might be asking questions about this later week. Talk about that. But it's my understanding in the least California right now and Washington State as well that again if you're a religious organization and you have a religious reason for discriminating OK then you're allowed to do that but you can't do it if you're just like well I don't like to hire disabled people or you know something like that or I don't like this person because of the skin skin color or their gender. Those things don't fly. So what about religious organizations. What is a religious organization in the eyes of Title seven and under most state laws and there are some wrinkles when it comes to stay into this criminal law to go look at each state individually and it might be different but under Title seven generally speaking and this is from by the way the E O C which is the Equal Employment Opportunity Commission that's the federal agency that's charged with making this law work and also fielding complaints that come under this law. They say this the exception of the words who is a religious organization the exception to the title seventh religious communication applies only to those institutions whose purpose and character are primarily religious. Some factors include. So if you're wondering is my organization is a self-supporting entity primarily religious. Here's here's the thing some factors whether it's articles of incorporation state a religious purpose whether it's a day to day operations are religious and the words are the services that performs the product it produces the educational curriculum it provides directed towards propagation of religion whether it is non-profit or for profit whether it is affiliated with or supported by a church or other religious organization those are some of the factors the courts will use to look at and say Is this a religious organization or not. That makes sense. And so the answer is my organization a religious organization is not always cut and dry. What does title seven. Actually say this is it right here this is the part of it I should say that applies to religion and religious discrimination it shall be unlawful employment practice for an employer. Number one and this is what these two prescriptions here are often referred to as the disparate treatment provision and the disparate impact provision number one the disparate treatment Number two the disparate impact. Number one it's unlawful for an employer to fail or refuse to hire or to discharge that means to fire or terminate an individual or otherwise to discriminate against them with respect to his compensation terms conditions or privilege of employment so there are it does that make sense to everybody. You can't not hire somebody you can't fire somebody you can't discriminate against them and then to pay you less because of these factors we're going to talk about now based upon their race their color and there it is religion right there. This is good right. There are sex that means their gender or their national origin. OK so these factors are these different classes protected classes race color religion sex national origin are things you cannot discriminate against. So if you're not a religious organization you can't even discriminate on the basis of religion. Number two you cannot impact them differently than other people you can't just actually you know just going to get it but there is or can be an impact of your actions that treat them differently to number two to limit segregate or classify their employees or applicants in any way which would deprive or to deprive any individual of employment opportunities etc etc Again based on the religion and these other factors as well. OK so. Your title seven. Since courts have found that they should have the freedom to believe or not believe it makes sense right. Your absence of religion is just as much a belief about religion as your having religion is right. That's from the southwestern saving loan case which we'll look at in detail a bit later if we have time. This was interesting. The plaintiff's personal religious creed concerning cozy kitchen cat food. The real case can imagine this. This plaintive and I don't recall if I've read this whole case or not but they actually said well it's my belief that I have to eat cat food. I guess they brought it to work and the employer wasn't cool with that. And so when it was actually litigated the court said actually it's not a religious belief that you have to eat cat food. That's just outlandish. Etc etc By the way the game is I believe there's a case about that is not considered a religion either. Now it's interesting you could say why have a religious conviction that I don't eat pork or I don't eat meat or whatever. That's probably a little bit different here than this but this person's religion apparently was based very largely around eating cat food and the courts in the US Just a mere personal preference that's beyond the parameters of the concept of religion as protected by the Constitution. Generally courts don't get into deciding what's a religious belief and what's not. Generally if you say this is my religious belief and if you're part of a church for example denomination that you know it it's not an issue because courts don't want to get into that they don't want to mess with the free exercise Establishment Clause stuff. So when it comes to stuff like this that's kind of out there. I'm just kind of giving an idea of what is religion in the eyes of Title seven. That makes sense. All right. Sources go through here. Some courts recognize these basic causes of action thriller discrimination here in the workplace where we talked about the disparate treatment clause. Title seven right. And then the disparate impact that means discriminatory treatment discriminatory impact of your actions against your employee or if you're an employee of your employer's actions against you. And in this failure to accommodate to a comedy just means to what. Allow something failing to allow that either if you're an employee or an employer. So let's just say you're like dude I was discriminated against right. How do you make the case for that. Here you go right here. Plaintiffs that's the person who's going to do the suing. You're the last of the bring a lawsuit. Shows that he was a member of a protected class member I told you that they're under Title seven you have would you have your gender right. Your color right here your ethnic ethnicity and your religion you are one of those one of those protected classes based on your religion you have to show that hey this is my religion I have a religious belief that's all you're doing. That he experienced an adverse employment action that could be that you were demoted that could be that they were terminated they were not hired and someone else of a similar standing was etc that they were qualified for the job or performing well. Hey you didn't hire me. I was more qualified than the person you did hire I think is because of my religion. And that they were placed by someone outside a protected class or ego or treated differently than similarly situated employees and in lot of cases talk about this but I got that from one particular a lot of you article there by Jennifer throw Brack and Joel Wesley OK how about the case for failure to accounting I was going to go through is really quick. You might be wondering right now will do this is a lot of legal ease. We get to the cases you will have. I think you'll enjoy these cases a lot of interesting detail. So how do you make the case for failure to accommodate an employee shows that she engages in a bona fide religious practice that conflicts with. A job requirement. Let's just take Sabbath. You know you you say I keep the Sabbath and my job requires that I have to work on Sabbath. The employer is aware of the employees practice in the conflict. You tell your employer hey I can't work Sabbath that conflicts with my religion and the employee suffers an adverse employment action for practicing her conflicting religious beliefs they fire you. The burden shifts to the employer who must show that it offered a reasonable accommodation so the employer than a court or before that if you're going to litigate if you're going to settle this out of court in court they've got to show that they offered a reason accommodation said well you can work on Sundays. That would be a reason accommodation right. You'll have to work on Saturday. Will let you work some other time. Or that an accommodation would cause an undue hardship this is usually what happens here a lot of you know employers when once you get to the the level that you're litigating something they're going to say well it would cause undue hardship Now here's the thing. Under Title Seven any accommodation would cost the employer more than a de minimus cost isthmus or no new hardship for the employer. De minimus means very very little right. And so if an employer could show that you know it would cost them an extra five dollars or they'd have to hire somebody for an extra couple hours to do your job. They are off the hook. The new hardship. So honestly for employers to prove undue hardship it's not that hard. So if you're in a ploy and you're like dude I don't know what do I have to make this person's weird religious belief. Not that hard to really show that honestly but we'll talk about best practices for employers in a minute. And what I recommend you do to avoid having to deal with this kind of stuff at all so that you're not going to worry about litigation at all. I want to take if you're a few cases out OK Just to show you some of these actual court cases that deal with both religious criminalization and specifically I want to focus on failure to accommodate because that's often times when it comes to a lot of religious stuff that I feel with it's about a filler too. A comet someone's religious practice. Along with that there is usually a cause of action for discrimination as well but those who are you know we just went through the different things that would be proof of that. So this case Transworld airlines the hardest the T.B.A. the arson case is a seminal case when it comes to the issue of workplace accommodation. One of the first that the Supreme Court dealt with this and honestly it was a very bad case for employees and a very good case for employers. So where we stand that issue and by the way as we go through this presentation know that if you're an employee you're going to glean some stuff. If you're an employer if you're going to glean some things and at the intimate to wrap things up for both of you so that you can see it in a bullet point manner. You know what is recommended for both employers and employees. Larry Hardison was a member of the Worldwide Church of God and he kept the Sabbath on Saturday just like something out of a stew he previously worked as a clerk for a T.V. a store in your question accommodation to keep Sabbath. He was subject to a seniority system based on this airline union they had the seniority system collective bargaining agreement thing and after unsuccessful attempts to accommodate him he was fired. So the Supreme Court held that number one the seniority system itself as set out in collective bargaining agreements represent a significant accommodation by the employer to the needs both religious and secular of all airline employees basically say hey you know since you guys have a union and you've had this collective bargaining agreement agree upon. The employers already gone the extra mile just even have this to begin with. So this may not apply in your particular situation because most of you if you have a small business I'm sure you don't have a union. You're having to deal with necessarily but just to kind of give you a little foundation here. Secondly the the court held him by the way just a little tidbit of information that's interesting is the J.. Just as that wrote this particular case Justice Byron White is actually a cousin of a Seventh Avenue pastor who I worked with for a few years. Interesting in this case was against us out of people not very friendly toward them. The airline could not be faulted for having failed itself to work out a ship for drugs shift basically for this guy. Basically the court here was saying he should work something out of self you know something players ball. And thirdly you know basically the seniority system it would have required that to accommodate this guy the seniority system would been violated. He was lower insinuate in the people above him who would have had to change their schedules in order to accommodate him. So basically the court was saying that you know you don't need to do that and you know this the security system is not unlawful employment practice even if it has some discriminatory consequences and the airline was not permitted to allow him not required to allow him to work a four day week he said hey I don't want to work Saturdays could U.S. economy you know can I work less time. No And of course that's fine an employer can say that. So that's kind of that case. All right this is interesting cases were also involving the Worldwide Church of God member name is Joseph Cook This is out of California Ninth Circuit case employer com It is sad observance by having other employees work his Friday night shift. But did not pay them overtime. Case you see what's happening here. This guy works for this company. He says I can't work Friday nights or Saturday nights they say OK we'll find some other people to work for you. They do but instead of paying those people overtime as they would have and under normal circumstances they just said would you work for this guy at night and apparently they agreed to do this for a while after a while the other employee said we're not willing to do this anymore without you paying. So over time and so the employer thought we want to accommodate our our man Joseph Cook so they were very proactive and they offered cook another position and the court ultimately found after that this this company was a very practical and a very good job. They looked around and called other other plants Hey can you put him on over there on on Sabbath hours can you do this and that the other very proactive and the court actually found employer had basically bent over backwards to try to reasonably accommodate cook very very nice company to do this and I think the outcome there was was correct. This is another case. African-American deputy sheriff for the Jefferson County sheriff's office down in Kentucky he was also a Baptist minister and Mr Urban requested a transfer to a unit or the sheriff's office that operated twenty four seventh's but he wanted accommodations that he could still function as a minister at his church on Sundays. So when he was a night accommodation at the new position he sued for racial and religious discrimination and we just kind of tell you one more detail about this case. So he had worked for me was like a bailiff in the courtroom and that allowed him to work Monday through Friday didn't require him to work on the weekends and he was fine with that. He requested transfer to another department. They gave him that transfer and ultimately he requested transfer to this unit that served warrants on people and was out had to be available twenty four seven to go out and do that kind of thing restraining orders that kind of thing. And they said to him Well sure you can have the job. But no we can't accommodate yours your need to keep Sunday holy because we actually need you all the time. So he sued them in that situation. He says but you can go back to your old job. You can still be a bailiff in the courtroom. So what do you think. Let me hear from will feedback do you think he should have won this case. Why not. So I mean under this situation it seems like the employer was being pretty fair right. We got these jobs that actually do accommodate you know difference in pay everything's cool but if you want this particular position within the same company I just doesn't work for your religious beliefs. So actually you're right. The Court found for the sheriff's department a county I think it was and and they found that that Irvin Mr Urban had not established a prima fascia case in that sense it's a basically he didn't even establish the fact they discriminate against him yet established that first of all right. Like we just went through the elements of that earlier in establishing a failure to account to accommodate because they actually had say hey you know we still want to work for us just not right there we can get you over here. So yeah basically it allowed him to go back to the real position a comedy's religious practices and the court said you know the employer is not required to make special provision to accommodate the deputy in the new position. They were already accommodating him elsewhere. All right another case where the courts found no failure to accommodate other words that this is these are all cases that are for the employer. So if I ask you what you think the outcomes I mean you can always go up here and she just think oh it's really employer this gentleman John Harmon was a Catholic you worked in General Electric's machine shop he was also a pacifist and believe in war. He sought accommodation based upon his religious convictions that would not permit him to continue to work in the general electric machine shop because I guess they were making things that had to do with implements of war perhaps. So G.E. try to accommodate him. They continue to pay him for nine weeks when he was not working apparently and made an effort to relocate him to another part of their company. Court held that the employer's attempts at accommodation were more then. Reasonable under those Scituate circumstances. Seems like they did what they could write a couple more here. This is an interesting case of all the Native American Benjamin County v Hennepin and Irene been Jamin worked as a clerical assistant in a part of this county. She alleged among other things that she was not allowed to smudge smudging is. I didn't either until I read this case but apparently it's a religious ritual that they burn some incense or some sage and it purifies the area where they work and so some employees were complaining Hey listen it's kind of smoking in here. This isn't good for our health or a fire hazard etc etc So the employer say hey listen you can smudge after four P.M. when everyone else has gone home. You can even come in to the supervisor by his office you can smudge in there for you one day you just can't do it at your desk during work hours and Miss Benjamin did not like that and she said they failed to accommodate her religious practice and of course found the employee of the court found that the employer had accommodated for purpose under Minnesota state law which is cellared title seven here in this particular case the employees request the smudges and again they gave her these different options. So this is are you getting the picture of what an accommodation looks like. That's I'm trying to do help me understand one accommodation in practical real life cases looks like it's usually the employer being reasonable. So one more case I think that goes into this this is oral writes a Seventh Day Adventist. He was a truck driver for the defendant this was out in Georgia where this happened this is a district court case from Georgia. He requested to have Sabbath off. OK And you notify the supervisor of his newly found convictions now here we are now we've gone from no filler to accommodate appear to now we're going to failure to accommodate so. Before it goes to trial they say hey let's let the judge decide based upon all the evidence that's been put in here now and they can make a decision based on this out of having to go to a jury and the Court found for Mr Rice here that they held it said the employer made no effort to accommodate him even though there were accommodations available that would have removed the conflict and cause the employer no undue hardship on the employer to done something about this. They were just being a jerk basically and they didn't want to do anything couple other cases here on failure to a county this is where the court now found for the employee OK I want to show you I'm showing you what it looks like what it doesn't look like to accommodate this one here is about a Jehovah's Witness and it was Lester Young California fair employment housing commission versus Gemini aluminum Corp says in California call for a state court case works for the defendant for nearly thirty years and had attended a witness convention something to do with his church. Every year almost all the time he missed a couple years. Attainable his convention was part of his religious faith it was considered something that his church required or at least strongly encouraged. This particular year he again requested time off for a Friday and Saturday to attend this and they denied his request he said hey listen it's part of my faith and by the way that's really important when we're talking about accommodation here notifying the employer that it's actually part of one's faith not just something you know that you want the weekend off so you can go play at the beach or something. He went to the convention anyway. And when he returned to work he was suspended for ten days now. He said listen this isn't right because other people have missed a day of work and you only suspend him for like three days let's say Why ten days for me you guys or discriminate against you treat me different than the person who doesn't ask for religious reasons. You know by the supervisor he intended to file a complaint and once he did that they fired him. You're not very smart employers. Just think about how they're dealing with this OK. The court held that Gemini had that's the employer failed to initiate reasonable accommodation efforts and I give you some tips as employers I think that their health or having dealt with employees and seeing how employers have treated them and what leads that employee to want to complain and eventually sue the employer. It seems like an employer can do some pretty simple things to really avoid that in this case you can kind of see how they could just say hey let's let's work with the amount they retaliate against him in a failed to prevent discrimination the court found a couple more cases here on where the employer failed to accommodate Kenny the amatory center of Miami Florida. This lady Mark Kenny was a Catholic nurse. She brought an action against her employer hospital following her demotion for refusing to assist with abortions she said I don't want to have you know participate in abortions. And the hospital said well we're going to have to cut your paid and put you in a different apartment. So they thought it was you know so this is necessary for financial reasons and they're not no one's willing to swap duties with her and so it went to court the Pella court after a hit. I think I forget who lost at the district level but on appeal. Mark anyone an employer they said must reasonably accommodate an employee's religious practice unless again there's that undue hardship thing which by the way again very low bar very low bar in most places Californians will be higher. OK unless they show they can suffer a new hardship. The evidence including the fact that eighty four percent of nursing duties at the hospital did not involve going to logical procedures demonstrated that additional efforts by the employer to accommodate Miss Kinney's religious belief would not of cause undue hardship for their words if what you're doing doesn't involve this you could probably find something this lady to do full time that doesn't involve you know. Being involves abortions and so they said she was entitled to reinstatement to reform position before she was demoted unpaid wages damages cetera couple more cases Kentucky Commission on Human Rights. This is another Jehovah Witness work for less go as a secretary this is kind of interesting this might apply to some Your small the smaller businesses here are you folks. Whatever dude answer the phone with Merry Christmas. Let's go now if you think about Jehovah Witnesses they don't believe in Christmas right. Or a lot of holidays or even birthdays I think right and I respect the who witnesses and that saying that derogatorily but they she was not like this right. And she objected and then they fired her and it was it's a long story but you know they eventually said no you're out the door because you want to say Merry Christmas. So you might say well hey that's the employer's right well maybe it was but apparently this had to do with her very you know firmly held religious belief and so she filed a complaint down there in Kentucky with the state commission that deals with the same things as the federal C. does and she and they found that she had suffered a religious criminal and they were her them to pay back pay the wages she lost and she was fired and damages Basically that means money for her emotional suffering etc compensatory damages. She appealed the company appeal and the appellate court they agreed with the Kentucky Commission on Human Rights and they found the employer could have accommodated her religious beliefs without hundred hardship I don't know exactly what the reason they're like well you could have had her answer the phone with something else or not answer the phone at all. But basically it wasn't going to cost you guys any money or make you lose business to not have her answer the phone. Merry Christmas. Now this is a really more recent case you might have heard about the Abercrombie case at the Supreme Court. That and it had to with a Muslim gal. Samantha. He laughs I guess I don't know how to say her name exactly she wanted to wear a headscarf. This is part of her religious conviction. So she goes to an interview at Abercrombie and Fitch. She sits down with the interviewer and they do the interview. Currently she did well they know so she has this you know religious headdress on so the the lady to the interview calls up her e-mails her supervisors hey there's a skill came in you know basically felt like they're going to hire. But she wears this you know funny headdress. The president can't do it. She doesn't fit our look policy and now keep in mind that all along of the employer Samantha all of the law had not said to them. Oh by the way notice my headdress this is because of my religion. She didn't do that and so when it eventually went to trial Kay So they failed to hire because of a headscarf and violate their look policy. Now the Supreme Court got the Supreme Court eventually and they held that title seven for HIV It's a prospective employer I mean someone who's not yet hired somebody. Those who are you know in this case for the failure to hire case from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. They say you know what you haven't shown that it's going to cause your business even a de minimus amount of financial loss or hardship. Basically to have this lady working in your store you can show us all man our businesses and our you know sales just tanked after this lady with a headdress came in. Well they didn't have anything to show that it was speculative at best. The issue in this case was whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation a whole notice thing right. And so this is an interesting case because it kind of hit on an issue that maybe people were wondering about need to be resolved for the court held that the rule for disparate treatment cases based on a failure to accommodate a religious practice is straightforward. An employer may not make an applicant's religious practice confirmed or otherwise a factor in employment decisions. Notice that it's not something you're ignorant about. OK for you. Yeah. So it goes back to the issue before we talked about two issues number one title seven covers employers with fifteen or more employees. So if that's a very small practice that's under fifty employees then it doesn't apply. OK so it looks at sixteen employees. Title seven then applies to them there's an exception for an organization that is a religious organization. So. So those are where the factors come in that we talked about earlier that they'll look at the Articles of Incorporation the mission statement. What is this company do you know do they maybe do religious stuff they teaching about religion or they affiliated with the church of a nonprofit are they for profit. All those things come into play. I wouldn't I and I have to you know every situations are not going to give you a legal opinion here so much but a doctor's office probably would not be considered a religious organization you know unless maybe there are some you know it's a nonprofit you know like free medical clinic. You know that's kind that's all they do is religious type you know stuff I don't know. You have to. To look at those factors. But and your state law might have a lower threshold. You know again for the number of employees that need to be doing that kind of thing. So yeah these are interesting things to think about right. So what we'll talk a bit more here at the end of this. So in this case notice that the employer suspected that Samantha had a religious issue with the headdress they weren't sure that's probably religious. I think they kind of like right but they said oh we didn't really know we weren't sure. Well if you suspect it and you say I'm a discriminate against them because I think that's some do with their religion let's not hire them or whatever based upon that. That's where it becomes a problem. Now if you say man I got five you know potential hires here and this one just looks one more qualified and nothing to it their religion that person over there maybe they say Well you failed to hire me because my religion well then you know that that's where you can show perhaps that there were other reasons so here are some tips for employers to explore reasonable ways to eliminate the conflict that's a key phrase specially in California that's a key phrase under law under the law there. Eliminate the conflict between the employee's religious practice and belief and the job requirements of an employee comes in says managers need to wear my you know my little crucifix or whatever all the time and maybe it it somehow interferes with the uniform that you have or something like that explore ways that you can accommodate them or you know so I need to go to this religious event on on Friday and and that's a workday explore and see if you can work something out basically when employer requests an accommodation being reasonable and nice this is just common sense right. Will likely help you to avoid litigation down the road. This is that's the thing I see the most is employers who are just kind of nasty you know supervisors that saying nasty things like why would you even deal with a situation like this Well I don't know. People just do that. Oh yeah and this is true too. From what I've seen most religious accommodation discrimination especially religious workplace carnation cases settle prior to trial doesn't mean the employer. Well and who knows who wins. But a lot of them don't even get to the trial. So basically here's here's the take away. See if this works here. Don't be one of these you know. Now I do like donkeys by the way. I had one as a child but I don't want to act like one they're very stubborn and not very nice sometimes. So I want to take it out really quick and see what time we have here. Oh we're really we're didn't close here. Yes right right right right right. This is you're exactly right and we're going to see this tension actually right now because it's the same thing I think with religious expression in the workplace and a hostile work environment issue. It's this tension of well who's right when it's the same thing with gay rights and for this right here. Right right right right right. It's it's an interesting issue. Yeah. And. No honestly. Yeah well so I go find this interesting here I think the expression the workplace Merry Christmas we'll talk about that you know it so you want to say how do we find the balance in this is really the issue here. Religious accommodation and your First Amendment rights Now first I'm in of course some people say well it's my first memory right you'll say whatever I want the workplace let the pin if it's a first man right you was the first man only applies to working or to to to the government right. Think of the first minute tax Congress shall make no law respecting an establishment of religion or preventing free exercise thereof blah blah blah. Who's not supposed to make a law about it. Congress government state plus the state of the forty minute right so when it comes to your private employers your proud employers can tell you that they don't want to talk about you know to do this or that of the other they have the right to do that a lot more than the government does but will talk about you still have religious expression right in the workplace and will talk about how title seven protects that first minute just keep in mind that some of my free speech right well free speech rights it with private employers are a little bit different than with the government and so how do we find about between that a common people's religious expression would say you have a Muslim person OK so we're a lot we're Christians here. Or a Hindu person who says I want to say something on the phone when I answer the phone or I want to wear my particular you know religious garb or have my religious paraphernalia at my desk and maybe you're a couple of hours from your employees are something. How do you balance that with what is the harassment hostile work environment issue. OK someone says Man I'm feeling harassed by the fact this person wants to witness to me all the time but I'm not witnessing in the workplace right. How does that look so here's something for you the witnessing employer and I and some of the stuff here I got from a guy who is actually going to show you three cases here I'll say OK So Title Seven is. Why allayed when an employer or supervisor explicitly or implicitly coerces an employee to abandon alter or adopt a religious practice as a condition of receiving a job benefit or avoiding an adverse employment action does that make sense to you. So if you're using religion in the workplace you're not a religious organization to do any of those things that could be problematic three cases real quick I'm going to go throw it away not time but. So let's just talk about the elements to improve in court case for a hostile work environment so an employee if you're an employee or if your employer hears what they have to prove to establish Katulis rason employment show that the rationale was based on her religion unwelcome sufficiently severe pervasive to alter the conditions of employment by creating intimidating hostile or offensive work environment and there is a basis for employer liability in other words what that last means is that you knew about it. Are you one of your supervisors did or you should have known about it. That's from the E O C compliance manual by the way to get that stuff online if you want to go back and look for this couple quick cases Jennifer Venter's work for the city of Delphi is and I want radio dispatcher. She was eventually fired by the police chief his name was I I was born in Christian God Pentecostal who incessantly lectured Venters about how she'd give her life to God she was kind of a you know Chua's I religious person herself but she was doing some immoral things she had people over house and there was you know rumors they were watching Pernod a few guys that work in this kind of thing and so he told her that she didn't get her life together he was going to trade her which she took to mean get rid of her fire you know. So she was eventually demoted in terminated iván the department claim determination was pronounced in the very reasons you know she did a couple things that could have been give given that impression. Here's some of things he told her that this is an example probably what you should do as an employer. I. As it was the police chief ventures than I One operator he said or hate to be a good employee a person needs to be spiritual holy spirit your whole personality say you know that's nice if they're willing to hear it but if they're kind of resistant he said hey you need to pay attention and when people are ministering to you because a person has a limited number of chances in their life and expect God to be saved and you know you're running out of chances now again if someone's going to hear this go for a ride but in her case she use this against him. Basically you're positing a spirit to doing battle you know kind of my church and this is God's house thinkin if you don't play by God's rules in the county police station office and I get ready. So yeah so they say the court found that such a jury could reasonably characterize Venter's work environment at the Delphi police station as hostile and abusive. Some are judged was inappropriate or words they found for Venters the nine one one operator and this case is also very instructive some of you might be interested in this. Yeah I know she recalled it and I think he acknowledged it at least most of it was true. Yeah those are things that she had recalled as I read as I remember. Yeah this case is a very interesting one and this applies to small businesses and that kind of thing. Jake and Helen Paoli borning Christians they founded this manufacturing company closely held that means small not publicly traded corporation the manufacture of mining equipment. So so far the selling is a religious organization. They manufacture mining equipment. They do but they are boring Christians and they made a coven with God to run their business as a Christian business. It says this organization reflected its founders kind of god several ways for example they enclose the gospel track with all of their outgoing mail right. They print Bible verses on all company knows that they put glow tracks in your in your bills right. This is good stuff. Purchase orders etc etc support to various churches and missionaries and they had a devotional service every week mandatory by the way mandatory devotional service. That's the key by the way in this case they had this weekly devotional service in Florida at their plants about thirty forty minutes. They had the prayer of thanksgiving they also included some business stuff in it and it was required and failure to attend was considered equal it's not sending work. The hair this guy was pelvis. He signed a statement employee handbook I will abide by everything an employee handbook which by the way if you get some of the sign that it doesn't mean that if you include things an employee Hammack there against a law that that gets you off the hook. So he attended the services without complaint for a while and he said Hey I'm an atheist can you excuse me. No you can read the newspaper you know. So at the back you don't have to listen. So finally he filed this charge with the E O C and then he left the company and basically said he was constructively discharged which basically means it's kind of pushed out that it fired him but you know made it hard for him to be there and that's called constructive discharge. And they said no that wasn't the case. The court in this case said Congress intended for Title seven that's why we wrote earlier to apply to Talley's mandatory voters by the way if you read this case in its entirety it's a very fair case I think for both sides. They were very very much wanting to protect the employer's expression of their religion through the devotional services but they were also wanting to protect the employees you know desire to not have to go to that because of his religious convictions. And they also found that the exemption for religious organizations did not apply to this closely held corporation that manufactured mining equipment not a religious corporation. They said But we do hope. That the owners do have certain rights under the free exercise clause that title seven cannot infringe their words we can't you know the government can impose through Title seven on the employer certain things that. So they held that number one the requirement that employer accommodate employees religious objections to postal services by excusing him would cause the employer no undue hardship there. The tallies couldn't show how it would cause their company any hardship to not allow Lewis or to not make a louis pelvis attend. Again the other things I told you not of which corporation and basically said don't make it mandatory. Don't make it mandatory to have people come to this devotional. Yeah. Employee employer should not try to suppress all religious expression in the workplace. So if you have some of these not of your faith you know like I don't agree with what you're saying you're like witnessing you know you're spreading false religion in my work life. Yeah be careful there because there is some proselytization you can say that allowed within the workplace Absolutely. And in determining whether permitting employed to pray proselytize or engage in the forms religiously or an expression in the workplace where would pose an undue hardship relevant considerations may include the effect such expression has on co-workers customers or business operations other words is it causing harassment to take place. We're knocking out time to go through this very interesting case. This is where she wrote. OK Check this out this lady Chelmer to be to on company a virtue and she wrote a letter to her supervisor telling him you need to be saved basically. OK And you need to quit being sinful Well he gets the letter in the mail. OK And he's not home. His wife opens up and she reads this thing about how he's repent but doesn't really say what and she thinks he's having an affair so she calls him up in the middle of a business deal. Interruption Now are you having affair on me and he's like totally you know messed this guy's life. Because this Christian wanted to preach to him and any way she did to somebody else of the same thing. Sent another letter to him or to this other person and chastising them for having an affair in that case. So her employer said Man you're really messing things up they fired her and the court actually sided with the employer in that case and said you know what. You didn't show us that it was part of your religion to write chastising letters to people first of all. Secondly even if it was you're causing a lot of disturbance and that's not unlike a religious belief that we should have to accommodate you know they players have to accommodate this another interesting case. Born Again Christian this guy interesting work for the county. How does secretary type of this Bible study notes form and so basically he did that he would also cite Bible passages and affirm is Christianity to offer prayers during department means basically the court held that some of that was OK it wasn't OK for a secretary to do work for him during work hours but it was OK for him to pray if people want to post that as a county employee was OK for them to have Bible study groups but not during work time. And he couldn't use county buildings without against county policy for Bible study and things like that but basically was a very good balance they said you know what it's yes you do have some for some rights here county government etc We need to get to our in part here because we get too much stuff. All right. This is praise the Lord God bless you very interesting case there. And those guys actually won. They were employees who would say Praise the Lord God bless you to everybody they met and food service like a fast food thing and the employer was in that case they know what they're not disturb anybody. You know again this one is very interesting case about a lady who want to wear a graphic anti-abortion pin and. Employee of employees were complaining about it and even employees who agreed with her views on abortion said you know it's just not a good way to deal with it and so she lost that case. Are best practices for business really quick. This is important. Employers should have a well publicized consistently applied anti harassment policy that covers religious harassment. Clearly exchange was prohibited describes procedures etc and make sure that you have ways for people multiple ways for people to file those complaints or talk to people. You should allow religious expression long employees to the same extent that you other kind kinds of person expressions that are not harassing or disruptive. OK that's the key here it's that balance again between expression and harassment. Once employers I notice that employee objects to religious conduct is directed at them. Employer to take steps to in the con the conduct because even conduct the employer does not regard as abuse it can become that way if it continues sometimes even your contractors you gotta be careful there if they're doing stuff you have to deal with that. Yeah I mean you intervene encourage your manager to intervene and this is from the E O C compliance and also something you can find online if you google religious harassment title seven IOS e. Now let's talk about employers what you can do. You can witness your customers however you desire. If you have your small business and you're the owner of it you do whatever you want for that goes with your customers. OK How you treat employees very careful to some extent as we talked about. You can do it your company policies and practices provided that you did not give prospective or current employees the perception that employment or advancement requires workers to adopt a certain religious belief. I mean I know a lot of AVONEX medical professionals who have offices and they believe that sure they're in that kind of thing but if you're trying you know you go to therapy Don't pressure your your employees who are not in. Here same beliefs to make them feel like they have to follow your religion etc This is David Gibbs wrote a great article the legal implications of witnessing at work on C.B.S. dot com Christian Broadcasting Network. Great article if you want to read that accommodate their objections don't require them to participate religious services that's from the town we case to legal and it's Haitians on employees what employees can do. Don't allow your religious discussions to interfere with your work. OK that makes sense right. And the second thing is if you're a good employee by the way it's a lot easier for lawyers to help you out later on if you're a lazy employee and it makes it harder. If an if a co-worker is the second thing indicates directly or indirectly that she does not wish discussed matters religion the Christian information to really stop and so on so forth doesn't mean that you can't talk about religion at work as an employee just means that you have to be careful that you're not perceived as harassing someone. And if you're an employee and can I witness to customers. Well that's kind of something that is what your employer would be able to answer for you if they're going to allow that. May finish this real quick and I'll take questions. What are remedies that means remedies the solutions to these issues here. First of all what I say is if there's a problem with any of the stuff we've been talking about talk with the people nicely and try to work it out. Sit down and have lunch you know. You know try to deal with it on that level thousand work if you're an employer employee he or an employer get your well. An employee in this case mean to get your past year localist of the department involved and employers they can help you as well sometimes with the legal aspect of things. If your employee or past can write a letter for you to your employer your list every person can do that. Contact the church state council if you don't have a religious liberty department you can file a charge of the E O C. That's free and it's simple to do and if that course doesn't work there's always lawsuits and then all sorts of damn. Just back pay from pay compensatory and punitive damages that come along with that reinstatement back of the job injunctive relief attorney's fees Oh yeah they like those right. And then we will talk about the Hobby Lobby case very interesting the interest in that I can talk about it later. Interesting case it's definitely protecting religious employers in relation to the Affordable Care Act at least but it's not very broad. We're talk about witnessing in the workplace how to win us like Jesus. I think I like this quote you've read this one Christ method alone right. He mingled as one who desired their good and then after he won their confidence and minister to them he said follow me so I think you know you talk about the lady who wrote the letters you know accusing people of being bad probably not following Christ method in the workplace. Who knows maybe it was she thought she was but. Great quotes here I like this group of people on every point where you can consistently do so let them see that you love their souls and this one here the manner in which Bible truth is resent often as much to do with how it with the impressions made upon minds and with adversity bellwethers gets paid one twenty one. So I think the simple thing is we like media and with my audience through more than the services in industry if you would like to learn something new like free online W.W.W..

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