By Deborah J. Hopkins, November 13, 2023
Religious persecution is on many people’s minds today. With polarizing events happening around the world, most notably the Israel-Hamas war. It’s important for Federal employees to remember this: While they may have strong feelings related to religious beliefs and practices, there are limits on workplace conduct that, if exceeded, could give rise to discrimination complaints on the basis of religion.
As a quick statutory overview, Title VII, 42 USC § 2000e-16, provides that in the Federal government, “all personnel actions affecting employees or applicants for employment … shall be made free from discrimination based on … religion …” This statute was made applicable to Federal agencies by the Rehabilitation Act in 1972.
In addition, EEOC makes it clear that “Title VII defines ‘religion’ to include ‘all aspects of religious observance and practice as well as belief.’ Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, and only subscribed to by a small number of people, or that seem illogical or unreasonable to others. . .” EEOC Compliance Manual Section 12-I, A-1.
A browse through EEOC case law shows us that discrimination based on religion has been implicated in every theory of discrimination. Today, we’ll be focusing on cases involving hostile work environment harassment.
Wicca wasn’t welcome.
The complainant, an electronic technician, filed a hostile environment complaint based in part on his religion (Wicca). According to the case, agency supervisors “restricted him from wearing his religious shirts, jewelry” and displaying “a small cauldron” even though similar restrictions were not placed on employees of other religions. In addition, an agency supervisor counseled the complainant that he should refrain from being so open about his religious beliefs.
The complainant’s co-workers also openly chastised his religious expressions, referring to his religion as “going out East to frolic with the nymphs” and calling him “evil.” EEOC found the agency liable for hostile environment harassment and remanded the case for a damages assessment. Hurston v. USPS, EEOC App. No. 01986458 (Jan. 19, 2001).
Muslims were expected to behave in a certain way.
The complainant, a housekeeping aide, alleged religious discrimination based on his Muslim faith when among other things:
- His supervisors made comments such as “Why don’t you act like a Muslim?” and “Where is your beanie (kufee)?” [sic].
- His direct supervisor once handed him a computer disk labeled “get Osama.”
- His co-workers brought in pictures of the President and the Statue of Liberty wearing disparaging Muslim garb.
- He received approximately 25-30 letters of warning.
When assessing the severity and pervasiveness of the conduct, EEOC noted that the harassment began on Sept. 12, 2001, and continued for several weeks thereafter. It found the agency liable for a hostile work environment. Watson v. Department of Veterans Affairs, EEOC Nos. 01A50731, 01A52680 (2006).
Disparaging comments were made about Islam.
The complainant, a center adjudication officer at the Federal Law Enforcement Training Center (FLETC), was attending a seven-week staff training course at FLETC’s Glynco, Ga., campus. The class instructor made disparaging remarks about Muslims and Arabic people to the class and provided factually inaccurate information about the Islamic faith and Arabic people.
In addition, the instructor told the class, “The goal of a Muslim is to convert you and kill you.” Another instructor told the class the complainant should be “investigated for possible ties to terrorist organizations.” This was so troubling that other classmates who weren’t Muslim or Arabic were uncomfortable and filed reports. EEOC agreed that this conduct created a hostile work environment. Rana v. Department of Homeland Security, EEOC App. No. 0720060056 (Jan. 5, 2007).
One offensive comment constituted unlawful antisemitic harassment.
The complainant, a workers’ compensation claims examiner, received an email from her supervisor in which the supervisor referred to himself as working like “a Hebrew slave.” The complainant filed a hostile environment harassment complaint.
The agency maintained the supervisor’s comment was not severe enough to constitute a hostile work environment because he applied the term to himself. EEOC disagreed and found that, although it was a one-time comment, such language made light of the history of Jewish persecution and genocide and it reminded the complainant about her family’s treatment during the Holocaust, where several of her family members had been killed. EEOC agreed with the AJ, who determined that this comment to a Jewish subordinate was “grossly insensitive, insulting and condescending,” “profoundly inappropriate,” and was severe enough to alter the terms, conditions, and privileges of employment. Lashawna C. v. Department of Labor, EEOC App. No. 0720160020 (Feb. 10, 2017).
Newspaper photo with comments was not a hostile work environment.
Not every case of unwelcome conduct based on religion will meet the bar to prove a hostile work environment. Take, for example, the recent case Kenny M. v. Dep’t of Justice (Bureau of Prisons), EEOC App. No. 2022000449 (Dec. 6, 2022). The complainant, a cook supervisor at a Federal penitentiary, alleged a hostile work environment on the basis of religion (Judaism).
From November 2018 through December 2019, a newspaper article containing a photo of the U.S. attorney general speaking with a man in a black hat was posted in the bathroom with the captions: “The AG and a Jew meet at a gay disco party” and “Who blows Who.” The EEOC found the incident was not sufficiently severe or pervasive to alter the terms, conditions, or privileges of the complainant’s employment. “The anti-discrimination statutes are not civility codes. Rather, they forbid ‘only behavior so objectively offensive as to alter the conditions of the victim’s employment.’” Id, citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (Mar. 4, 1998).
I’ll write more about religious discrimination next month. Hopkins@FELTG.com