Pennsylvania Labor and Employment Blog : Pennsylvania Labor and Employment Lawyer & Attorney : McNees Wallace & Nurick Law Firm : Human Resources, Workplace and Business Law : Harrisburg, Lancaster, Allentown, Lehigh

As a public employer, your actions are considered the actions of the government or the “state.” This dual persona brings with it additional obligations and challenges that private employers do not face. Some of these obligations include the requirement to provide due process rights to employees, and the challenges include a seemingly endless variety of lawsuits that your employees may bring against you. Lawsuits unique to public sector employers include unreasonable search and seizure challenges, including e-mail and text message based challenges, free speech challenges, and alleged violations of the Establishment Clause of the First Amendment.

The Establishment Clause prohibits the government from endorsing any particular religion and, in fact, endorsing religion at all. In a recent case involving the Establishment Clause, Milwaukee Deputy Sheriffs' Association v. Clarke, the 7th Circuit Court of Appeals found that a county sheriff violated the Establishment Clause by having a Christian organization deliver a faith-based presentation to employees at mandatory meetings. The court concluded that the Sheriff, by introducing the Christian group and allowing them to speak at mandatory employee meetings, either endorsed the group or at the very least, gave the appearance of endorsing the group. This endorsement constituted a violation of the Establishment Clause, and the Sheriff’s Department was ordered to cease and desist from further violations and was also required to pay over $38,000 in fees and costs.

While it may seem like an easy decision for most savvy Human Resource practitioners to avoid supporting one religion over another in the workplace, this is something that still occurs outside of the watchful eye of HR. It is true that Milwaukee Deputy Sheriffs' Association is an extreme case, but it is still a good reminder that as a public employer, you must avoid showing preference toward one religion over another. Because this message does not always trickle down to all supervisors and managers, the facts of this case serve as a good reminder to briefly discuss at your next executive staff meeting or supervisor and manager training session.
 

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In Makky v. Chertoff, the Third Circuit Court of Appeals recently addressed the importance of objective job qualifications in evaluating the merits of a discrimination claim. Employers that establish clear baseline standards for position through their job descriptions, advertisements and other records are better able to defend discrimination claims by showing that the applicant or employee does not meet minimum qualifications for the position.

The Makky case involved the termination of employment of Dr. Wagih Makky who was employed by the United States government in the Federal Aviation Administration and Transportation Safety Administration for fifteen years. In his various positions, Dr. Makky was required to obtain security clearance. A descendant of Egypt, Makky was the only Muslim and only person of Arab descent in his division. Makky's security clearance was suspended due to safety concerns, including his dual citizenship with Egypt, foreign relatives and associates, foreign countries visited, and alleged misuse of his government computer. Makky was placed on paid administrative and subsequently terminated when the TSA issued its final denial of security clearance. Although Makky appealed the determination through the government's processes, the determination was upheld.

Makky filed a lawsuit including a claim for employment discrimination under Title VII of the Civil Rights Act. Makky's Title VII claim was premised on a mixed motive theory of discrimination which recognizes that an employment decision can at times be based on both (1) a legitimate non-discriminatory reason and (2) discriminatory animus. Here, Makky argued that while he was suspended without pay and terminated because he did not pass the security clearance, the TSA's actions were also motivated by discriminatory animus based on his national origin because the agency did not offer him other positions or keep him on paid leave. Although the Court recognized that the analysis is factually sensitive , it held that when a plaintiff does not possess the objective baseline qualifications to do his or her job, the discrimination claim will fail on its face because he or she cannot establish a prima facie case of discrimination. Applying the holding to the facts at hand, the Court found that Makky's inability to retain a security clearance rendered him expressly unqualified for the TSA position. Analogizing Makky's situation to a more mainstream occupation, the Court explained, "if the hospital employing a person who has been performing surgery learns that the employee falsified his or her qualifications and never went to medical school, that employee could not establish a prima facie mixed-motive case irrespective of allegations of racial or ethnic discrimination."

So what can an H.R. specialist take away from Makky? When a position requires a baseline objective qualification, like a license or degree, make sure it is expressly stated in all hiring materials including: (1) job advertisements; (2) position descriptions; and (3) application materials. Notably, if the degree or license it is merely the company's "preference" for someone in the position, it is important to consider whether making the "preference" appear as a "qualification" may lead to problems in the future. For example, suppose that Company X states that a sales position requires a Bachelor's Degree. When Company X interviews its two top choices, however, the female candidate who possess a Bachelor's Degree has the personality of dry toast, while the male candidate who has waitered all his life and does not have a Bachelor's Degree has a dynamic sales personality and will surely do well with Company X. If Company X believes that the male applicant is better suited for the position than the female applicant, should the Bachelor's Degree have been a required qualification in the first place? Probably not. Accordingly, it is important to have a process in place to review your company's job advertisements and position descriptions before posting for openings. While certain baseline objective qualifications can often be beneficial in refuting a prima facie discrimination claim, turning a mere "preference" into a "qualification" can have the opposite result because it may be used as evidence of a discriminatory motive.

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On July 22, 2008, the EEOC issued a new section of its Compliance Manual addressing the subject of religious discrimination. The section "provides guidance and instructions for investigating and analyzing charges alleging discrimination based on religion." The new section does not change a Pennsylvania employer's legal obligations, imposed by Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"), as amended, with respect to religious discrimination and accommodation. It does, however, provide a handy reference tool for many religious discrimination issues and offer some insight into the EEOC's current thinking on this often difficult subject. 

As a protected trait under both Title VII and the PHRA, religion may form the basis of disparate treatment, harassment, retaliation, and failure to accommodate claims by applicants and employees. The EEOC's new section is divided into five sections reflecting the different types of possible religion discrimination claims:

• Coverage issues, including the definition of "religion" and "sincerely held," the religious organization exception, and the ministerial exception.
• Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.
• Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.
• Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.
• Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

In addition to the standard harassment, disparate treatment, and retaliation requirements, the EEOC continues to recognize and enforce the following employer obligations:

• Reasonable Accommodation. Once on notice, an employer must reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. A reasonable religious accommodation can be any adjustment to the work environment or requirement that will allow the employee to practice his religion. Examples of such accommodations may include allowing flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, and modification of grooming requirements and other workplace practices and rules.
• Undue Hardship. An employer need not accommodate an employee's religious beliefs and/or practices if doing so would impose an undue hardship on the employers' legitimate business interests. The undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden. This standard is far lower than that required for an undue hardship under the ADA, which is defined in that statute as “significant difficulty or expense."
• Religious Expression and Participation. Employers must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the employer. Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency. Likewise, employees cannot be forced to participate, or not participate, in a religious activity as a condition of employment.

In addition to a description of the applicable legal requirements, the EEOC's new Compliance Manual section on religious discrimination also contains questions-and-answers and "best practices" information designed to assist employers with their compliance obligations. 

The issuance of this new compliance assistance demonstrates that the EEOC remains focused on religious discrimination and accommodation issues. For this reason and numerous others, employers also should be aware of and compliant with these requirements.

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