Tag Archives: religion

Favorite Firing: When a Supervisor’s Actions Make a Termination Difficult to Defend


4th cirI am typically suspicious of lawsuits in which a plaintiff employee alleges every possible form of discrimination against his or her employer. It seems unlikely that an employer is motivated by many different forms of bias when deciding on a disciplinary action or termination—race and gender and age and pregnancy can’t all be the basis for the decision, can they?

And yet, when an employer and its supervisors screws up a case so badly with multiple derogatory statements over a lengthy period of time, and when they then fire the employee shortly after she complains about the harassing conduct, the case is likely to get heard on the merits and will cost the company a lot of money to defend.

Such a case, Guessous v. Fairview Property Investments, LLC, No. 15-1055 (4th Cir. July 6, 2016), recently came before the Fourth Circuit Court of Appeals. The Fourth Circuit reversed the lower court’s grant of summary judgment to the defendant, and now the employer must gear up for a trial.

The Facts: In Guessous v. Fairview Property Investments, LLC, Monica Guessous, a female Muslim-American bookkeeping assistant of Moroccan descent, sued her employer, a property management firm, after she was discharged. Her complaint contained multiple claims, including discrimination based on religion, national origin, and pregnancy, hostile work environment, and retaliation.

Shortly after she was hired by Fairview, Ms. Guessous began reporting to a new supervisor, Greg Washenko. She alleged that Mr. Washenko began making offensive remarks when they were first introduced, when he said he had previously worked with a “bunch of Middle Easterners and they are a bunch of crooks who will stop at nothing to screw you.”

As their work relationship continued, Mr. Washenko allegedly discussed Moroccans, Muslims, and Middle Easterners repeatedly in disparaging and offensive ways, and asked Ms. Guessous questions about Middle Easterners, about suicide bombers and other terrorist acts, and about Islam. When Ms. Guessous told Mr. Washenko that Muslims were not terrorists, Mr. Washenko responded, “Yeah, sure. Like my buddy says . . . not all Muslims are terrorists, but most are.”

The Fourth Circuit opinion goes on for pages about Mr. Washenko’s comments. According to the Fourth Circuit, Washenko consistently conflated Ms. Guessous’s identity as a Moroccan Muslim with other Middle Eastern identities, so that the court had difficulty determining whether his remarks related to race, ethnicity, national origin, or religion.

When Ms. Guessous became pregnant, Mr. Washenko didn’t want to grant her a three-month maternity leave, and she had to tell him she was legally entitled to a 12-week leave. When she returned from maternity leave, her work duties had been assigned to other staff. Two months later, she asked Mr. Washenko for her old duties back and complained about his past behavior. Just 75 minutes after this meeting, the company president asked Fairview affiliates if they had openings for Ms. Guessous, because Fairview did not have enough work for her.

Then Ms. Guessous was terminated in March 2013. She was told the company did not have work for her. Her responsibilities were transferred to an outside accountant and to Mr. Washenko.

The Moral: This case demonstrates several problems for employers.

First, of course, is the alleged behavior by Mr. Washenko. In summary judgment rulings, the facts must be considered in the light most favorable to the plaintiff—in this case, Ms. Guessous. It is possible that a judge or jury after a trial will find that Fairview did not discriminate against Ms. Guessous. But with the allegations described in the Fourth Circuit opinion, Fairview is facing an uphill battle on liability.

Second, the Fourth Circuit indicated that the fact that Fairview didn’t have work for Ms. Guessous was not sufficient rationale to defeat her claims of discrimination. The Fourth Circuit said that the lower court had granted summary judgment for Fairview solely because the company did not replace her after she was fired.

“The court offered no elaboration in its opinion, but its logic appears to have been that, because the work was absorbed by Fairview’s other employees, Guessous cannot show that there was enough work to justify keeping her on staff and she therefore cannot prevail. If that is, indeed, the court’s reasoning it is a fallacy: because Fairview has shown it could operate without Guessous does not mean that it would have done so absent the protected activity.”

Thus, once an employer or its supervisors have engaged in discriminatory or harassing behavior, a restructuring of duties to get rid of an employee is also discriminatory. It seems unlikely that an employer can show any evidence to defend itself in such a situation.

In this case, the facts were particularly egregious. As the Fourth Circuit said,

“A reasonable jury could easily conclude, however, that the termination decision was made only seventy-five minutes after Guessous’ complained to Washenko about past comments and treatment, and that it was therefore motivated by the complaint itself.”

Thus, the Fourth Circuit said that a reasonable jury could find that Fairview’s argument that it lacked work for Ms. Guessous was a pretext for discrimination.

The morals to this case, then, are that (1) employers, including all supervisors, should refrain from disparaging comments about employees’ national origin, religion, and other protected categories; (2) employers should provide employees with all mandated leaves and other benefits without question; and (3) employers should not respond to employee complaints by immediately doing away with the employee’s job.

More broadly, the moral of this case is that employers need to be sure that discussions in the workplace about political and newsworthy events remain civil and that no racial, ethnic, or other protected group is mentioned in disparaging ways. A good moral for us all to take to heart in the middle of this political season.

When have you encountered managers who behaved inappropriately?

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Who Must Raise the Topic of Religious Accommodation in the Workplace?


A&F logoI wrote recently about religious accommodation, but the Supreme Court arguments in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., last week keep this issue top of mind. The Abercrombie & Fitch case is one where I have sympathy with both the applicant and the employer.

The issue in this case is whether an employer has any duty under Title VII of the Civil Rights Act of 1964 to try to accommodate an employee’s or applicant’s religious practices if the employee or applicant doesn’t directly request an accommodation. In this case, a Muslim woman, Samantha Elauf, interviewed for employment with Abercrombie & Fitch wearing a hajib. Whether or not she was Muslim did not come up during the interview, but the employer assumed she was Muslim and decided not to hire her, because her appearance did not fit the “look” it wanted for sales employees in its stores.

hijabIt is a shame that this case has reached the Supreme Court. By all accounts, Ms. Elauf has had a successful career since Abercrombie & Fitch rejected her application. Most likely, Abercrombie & Fitch lost a good prospective employee by making a decision without discussing accommodation with this applicant. In fact, Abercrombie & Fitch later changed its policy to permit sales employees to wear hijabs, so the whole lawsuit might have been avoided had the issue been addressed before the retailer rejected Ms. Elauf’s application.

I am sympathetic to the applicant, because I believe that religious practices should be accommodated. As I stated in my February 16 post, this nation was founded to permit a diversity of religious beliefs, and we should give each other a little space to make that happen. The “look” policy, if strictly applied with no flexibility, might not have been the best practice from either a customer service or an employment perspective.

With respect to the specifics of the case, the hiring managers at Abercrombie & Fitch correctly perceived Ms. Elauf’s hijab to be an indication that she was Muslim. Therefore, the Supreme Court could easily rule that the employer should have done more before rejecting the applicant. The company should at least have raised the issue, as the EEOC argues. However, the challenge for the Court might be to do justice to Ms. Elauf without issuing broad rules of law that go beyond the intended scope of Title VII and could make managing a business more difficult.

There are many reasons why the employer’s position is also sympathetic. In my opinion, particularly for customer-facing employees—which retail sales employees are—an employer should be able to set appearance standards. Moreover, placing the burden on the employer to determine whether there might be a religious practice at stake, as the EEOC argued, goes beyond the capability of many hiring managers. How is any particular manager supposed to be aware of all religious practices—for example, whether a particular tattoo is religiously based or simply a style that an applicant likes? It is much more likely that the applicant will recognize when his or her religious practices might be an issue than that the employer representative will.

Moreover, many employers are legitimately concerned about mentioning religion at all during a hiring interview. Whether the applicant is or is not of a particular religion, the employer opens itself up to the possibility of a discrimination claim for “perceiving” the applicant to be of a protected group. Most Human Resources personnel and other management representatives have been carefully trained to avoid bringing up religion unless and until the employee does, and even then to handle the situation gingerly.

Also supporting the employer’s position in this case is that the standard for religious accommodation under Title VII has traditionally been quite low. Unlike under the Americans with Disabilities Act, where “reasonable accommodation” has placed some significant burdens on employers, under Title VII the only accommodations required have been those that do not impose more than a “de minimis” burden on the employer. So, even if Abercrombie & Fitch had raised the issue of Ms. Eleuf’s hijab, the retailer might not have had to change its “look” policy to accommodate her.

Nevertheless, it is quite possible, as the EEOC argued here, for the employer to have policies and procedures that the applicant does not know about—such as Abercrombie & Fitch’s “look” policy. It does not seem fair to make the applicant raise the issue of religion because there might possibly be a problem that the applicant knows nothing about. If employers do not need to discuss religion, why should applicants?

Thus, keeping the focus on the job—as Justices Sotomayor and Alito seemed to suggest during oral argument—might well be a workable solution. The hiring managers’ questions can ask about the job requirements and whether the applicant sees any problem performing them. Then, if religion might be an issue, the applicant can tell the employer what his or her religious beliefs require.

My advice to hiring managers was always to keep the focus on the job requirements.

How have you dealt with religious accommodation issues in the past? How do you feel about the issues raised in the Abercrombie & Fitch case?

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A Kosher Deli, A Modern Bakery, and Religious Accommodation


side-images-deli-platterMany years ago I was planning a party at my home for a large crowd. I planned to serve sandwiches, so I called a local deli that had been recommended to me. I discussed the kinds of meat the deli offered, and ordered several pounds of pastrami and corned beef and turkey.

“What about ham?” I asked.

“No ham. We’re kosher,” the proprietor responded.

I hadn’t realized the deli was kosher, but I could do without ham, and I added another pound of pastrami to my order. “And I’d like a cheese platter also,” I said.

“We don’t serve cheese with meat.” Now the proprietor’s tone was curt.

OK Kosher CertifiedI was embarrassed. I knew that keeping kosher meant keeping meat and milk products separate—”thou shalt not boil a kid in its mother’s milk” being one of the dietary commandments in Exodus and Deuteronomy. But I had forgotten. I knew the deli offered both meats and cheeses for sale, but apparently they did not sell them together.

I was a member of the public placing an order with this deli. But it never once occurred to me to insist that I be sold both meat and cheese in violation of the proprietor’s religious beliefs. In fact, I felt I had been insensitive to his desire to operate his business in accordance with his religion. It was my faux pas, not his, I thought, though I did think he could have been a little more gentle in his response to me.

If I did not get indignant at my desire for cheese being refused, why do homosexual couples think that the owner of a bakery who believes gay marriage is not acceptable must sell them a wedding cake?

And why do people wanting birth control medications or devices think that a pharmacist must sell such goods when the pharmacist believes birth control is immoral?

Should I have insisted on getting my cheese at the same place as my meat? I don’t think so. Or canceled my meat order because I couldn’t get the cheese? That was my perogative, but it wasn’t worth bothering. There were plenty of other places to get my cheese.

I recognize that our nation’s history is full of examples of people being refused service because of their race, their gender, their national origin, their religion. I believe that in most of those situations, the business owners were wrong.

But let us also recognize that our nation was founded by people seeking the freedom to practice their religion as they saw fit. Religious freedom is one of our bedrock principles.

In most situations, we should permit business owners to set their own terms for what they will and will not offer for sale and when they will sell certain products. We should accommodate people’s attempts to make their livelihood in a manner that is consistent with their consciences. In a society as pluralistic as ours, there should be room to accommodate our differences.

Why can’t we just give each other some space to live and let live?

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Holiday Parties: Party Like There Is a Tomorrow (Because There Is)


nix mistletoeOne of the things I disliked most about working in Human Resources was my role as social director.  For some reason, managers thought HR should plan any parties that the organization wanted to hold—recognition events, anniversary and retirement celebrations, and, of course, the annual holiday party.

It’s probably too late for this year, but if you haven’t already arranged your company’s holiday party, here are some suggestions:

  • Be sure you follow all applicable wage and hour laws. If employees are required to attend, then they must be paid. If the event is after-hours and voluntary, then be sure no one is penalized or downgraded for not attending. Voluntary must be truly voluntary. And remember that this month is a very busy time for many families.
  • Watch the singing, praying, and any other activities that might give a religious bent to the celebration. I remember a party where everyone sang traditionally Christian Christmas carols. Some people loved it, but non-Christians were made to feel very uncomfortable.
  • Remember that alcohol is not a good mixer with work. Unless your event is at the end of the work day, off company premises, AND you are willing to monitor your employees’ behavior and arrange for rides home for those who imbibe too much, you shouldn’t serve alcohol. Sorry, folks, but it’s not worth the risk of bad behavior at and after the event.
  • Avoid dancing and mistletoe. See above regarding alcohol. Combining alcohol with dancing and/or mistletoe is just asking for trouble. Your company’s anti-harassment policy remains in full force through the party, whether it is on premises or off.

You might be better off waiting until after the Christmas spirit has worn off, and hold an event to celebrate your company’s year-end results in January.

For more on holiday parties, see

Office Holiday Parties: Revel without Regret, by Anita Setnor Byer

Planning the Company Holiday Party: A Guide for HR, by Shaun Reid

Some Advice with Your Company’s Holiday Party, by John Hyman

Yes, Most People Really Do Hate (and Dread) Your Annual Holiday Party, by  Patty Azzarello

And for an old joke describing the degeneration of one HR manager’s attempt to throw a good holiday party, click here.

When have you seen problems related to a company holiday party?

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New EEOC Guidelines on Accommodation of Religious Dress and Grooming Practices: A Higher Standard?


"Celtic Cross (#0383)" by regan76

“Celtic Cross (#0383)” by regan76

On March 6, 2014, the EEOC issued new guidelines on what employers must do to accommodate their employees’ religious dress and grooming practices. See EEOC publication titled Religious Garb and Grooming in the Workplace: Rights and Responsibilities.  The agency takes the position that employers must accommodate these religious practices, even when they violate company policies, unless doing so presents an “undue hardship” on the employer’s business.

Specifically, Q&A 6 of the guidelines states:

“Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.  Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.”

"Turban Day 2012-15" by Anuraj Singh

“Turban Day 2012-02” by Anuraj Singh

According to the EEOC, employers must accommodate all aspects of religious observance, including not only the well-established religious practices of traditional religions (Christianity, Judaism, Islam, etc.), but also “new, uncommon” practices “not part of a formal church or sect,” and any “sincerely held” beliefs, even where they are not part of a formal church practice and even if the belief seems “illogical or unreasonable to others.” See Q&As 2 and 4.

One tricky issue for employers is the standard of accommodation to which the EEOC will hold employers. Traditionally, the standard for religious accommodation has been that employers need not agree to any accommodation that causes more than a de minimis cost or burden to the employer’s operations. Q&A 6 of the EEOC’s new guidelines pays lip service to retaining this de minimis standard:

“For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act (ADA) undue hardship defense to disability accommodation.”

EEOC sealNevertheless, the new EEOC guidelines make it clear that the following cannot be the basis for the employer’s claim of undue hardship:

  • customer preferences (Q&As 5 and 6)
  • co-worker disgruntlement (Q&As 5 and 6)
  • an employer’s desire to use a particular image or marketing strategy (Q&A 10)

If these core business considerations cannot be rationales for objecting to a religious accommodation, then an employer’s operations can in fact be significantly altered by compliance with an employee’s request for an exemption from a dress or grooming policy, contrary to the expressed de minimis standard.

It appears that the only  acceptable “undue hardship” the EEOC will recognize is one which causes and actual impact on safely, security or health. See Q&A 12. And the only example of permissible refusal to accommodate a dress or grooming requirement in Q&A 12 is requiring an employee with a beard to wear two face masks instead of one for hygiene reasons (Example 15). Even prohibiting an employee from wearing a dull knife that is a religious symbol is an illegal denial of religious accommodation (Example 19).

In many instances an employer can acquiesce to an employee’s religiously motivated requests for different dress and grooming standards with little or no hardship, and accommodating these requests is appropriate. Nevertheless, many of the examples given in the EEOC guidelines do not feel like de minimis intrusions into employers’ businesses to me. They feel like they impose a significant risk that the agency will second-guess an employers’ decisions.

And how far should the EEOC’s higher standard of accommodation be allowed to extend? What about religiously motivated speech? The new guidelines do not (yet) speak to anything more than religious dress and grooming accommodations. But there is no rationale that I can see why customer or co-worker objections to dress and grooming accommodations should be prohibited, while objections to words should be allowed.

I was involved in a situation where an employee in a retail operation insisted in answering the phone “In the name of Jesus Christ of Nazareth, this is [XYZ Department Store].” When questioned about this practice, she said that her beliefs required her to always speak in the name of Jesus Christ and to so preface her remarks.

We had many complaints from both Christian and non-Christian customers. After much discussion with the employee and her minister, the retailer ultimately terminated her employment. A court found the termination proper and granted the store summary judgment. But I wonder whether we might have been liable for employment discrimination under these new EEOC new religious accommodation guidelines, no matter how many customers we lost as a result of her statements.

What types of religious accommodation requests have you encountered in the workplace?

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Obamacare Regulations Prohibit Free Exercise of Religion


As a manager, I generally tried to keep religion out of the workplace. But in recent years I have consulted with religious employers about health care issues.  With religious institutions it is impossible to keep religion out of the workplace – that is their mission and reason for being.

In the summer of 2011 I had clients – institutions associated with the Catholic Church – that had to decide whether to change their employee health care plans for cost-saving reasons or to keep the plans unchanged to stay within the “grandfathering” provisions of the Affordable Care Act (ACA).  In order to control costs for themselves and their employees, these religious organizations decided to abandon any intent of remaining grandfathered.  If my clients had not made these changes, they would have faced double digit premium increases – which would have hit both their employees and the religious institutions themselves, limiting the social services they could provide to their members and to the public.

I told these institutions at the time that it was possible that the HHS regulations under the ACA might mandate birth control and other health care expenses contrary to their beliefs, and they would have to adopt these provisions or stop providing health care as an employee benefit.  Now, HHS and the Obama Administration have done exactly that in the regulations on mandated preventative health services for women.

HHS has mandated that non-grandfathered plans cover all FDA-approved contraceptive methods – including abortificants – and sterilization.  Not only must these services and drugs be covered, but they must be “free” to plan participants.  Although there is a religious exemption, it is exceedingly narrow, limiting the definition of a religious employer to non-profit insitutions that

  • inculcate religious values,
  • primarily employ persons who share its religious tenets, and
  • primarily serve persons who share its religious tenets

Thus, my clients, who serve not only members of their own religion, but also members of other religions and even the non-religious, must violate their own tenets or stop providing health care to their employees and face fines under the ACA that would cause them to have to cease providing the social services that they see as part of their mission.

Requiring religious employers to cover health care expenses that go against their religious beliefs is morally wrong and legally untenable.  Both conservative and liberal commentators have expressed their outrage at the HHS position. 

On the PBS NewsHour on February 3, 2012, Mark Shields said:

what President Obama has done with this policy, and Secretary Sebelius, quite bluntly, is they have taken those Catholics who took a risk to support them, . . . and he has left them out to dry. I mean, he really has, with — in just a policy that I think is, quite frankly, indefensible.

David Brooks then added:

“When you have the government saying one size fits all, sort of a form of bureaucratic greed, you are going to do it our way, or not, well, then that insults a lot of people.”

The problem with mandates of any type is that they do not enable the diversity of beliefs and practices in our society.  Any government-mandated benefits risk that problem, and come across as paternalistic and elitist.  And now, unconstitutional.  It would be better to permit the market to develop a variety of health care plans that address the needs of various segments of our society.

The First Amendment of the Constitution provides in part “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  This is one of the founding principles of our nation.

Yet the Obama Administration has now said that Catholic and other religious institutions must either offer health care products and services to employees that violate their beliefs or violate the law and pay prohibitive fines.  Or close their doors.  How can this not be interpreted as prohibiting the free exercise of religion? 

And it comes perilously close to establishing the “Church of Obama,” as he permits no meaningful deviation from his regulations to those who believe differently than he does.

Regardless what you think about Obamacare generally or about birth control and abortion, do you think religious institutions should be forced to pay for benefits that are contrary to their beliefs?

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Where Do You Stand on the Cultural Divide?



I recentlyread an article in The WallStreet Journal, January 21, 2012, entitled “The New American Divide, which discussed the increasing differences between the working class and the upper class in America. In 1960, these two groups participated in cultural institutions such as marriage, full-time employment (at least for males), and religion at much more similar rates than they did in 2010.

“For most of our nation’s history, whatever the inequality in wealth between the richest and poorest citizens, we maintained a cultural equality known nowhere else in the world—for whites, anyway,” says the author, Charles Murray.

But, Murray argues, there is now a great cultural divide between classes in American society, which means that we no longer have cultural equality. The article is worth reading simply for its explanation of the cultural differences now permeating our society.

But the article also raises issues for us to think about concerning the solutions to the increasing cultural differences. Murray believes that it is primarily up to the upper income class to resolve the cultural divide. He says the upper class should take action to maintain the cultural equality that has made America a land of opportunity.

First, Murray says that “married, educated people who work hard and conscienctiously raise their kids shouldn’t hesitate to voice their disapproval of those who defy these norms.” The upper class must preach what it practices. Which is hard to do in our “anything goes” society.

But beyond practicing what they preach, Murray suggests that the upper class should rethink their priorities to increase the cultural connections between classes.

Ask yourself whether you are willing to change the following in order to increase your exposure to people of other classes:

  • The neighborhood where you live
  • The school you choose for your children
  • What you tell your children about the value and virtues of physical labor and military service
  • Whether you are an active member of a religious congregation
  • Whether you are involved in your community beyond attendance at charity events.

Where do youstand on the new cultural divide? Should we work to close the cultural class gaps? If so, what will you do?

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