Employment Law Commentary, December 2013 - Volume 25, Issue 12

Religious Discrimination and Muslim Employees

Religious discrimination charges are on the rise. The U.S. Equal Employment Opportunity Commission (EEOC) has seen a 223% increase from 1997 to 2012.1 And over in the UK, the number of religious discrimination claims has more than doubled in just six years.

This article provides a comparison of religious discrimination law in the United States and the United Kingdom, highlighting the similarities and differences between the obligations of employers on either side of the pond. Religious discrimination laws in both countries cover a wide range of religions and religious beliefs and, in the UK, philosophical beliefs. In this article, we have focused in particular, on Muslim practices and how they may conflict with workplace practices or policies. However, the principles discussed would apply in respect of any other religion or belief in the same way.

The United States

Employee religious practices are protected by Title VII of the Civil Rights Act of 1964.2 Title VII prohibits religious discrimination and also requires reasonable accommodation of religious practices that may interfere with employment, unless that accommodation would impose an undue hardship for the employer.3 Title VII religious accommodation claims have a twopart framework. First, a plaintiff must establish a prima facie case, which shows the existence of the conflict with the employer. If the plaintiff can establish a prima facie case, then the burden shifts to the employer to show that a requested accommodation would impose an undue hardship.4

To establish a prima facie case, a plaintiff must prove: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) that she informed her employer of the conflict; and (3) that she was disciplined for failing to comply with the conflicting requirement.5

Generally, Muslim plaintiffs will have little difficulty establishing a prima facie case, because Muslim practices are well established. The 10th Circuit, however, recently held that the second element was not established where a prospective employee did not actively inform her employer that there was a religious conflict between wearing her hijab and a no-headgear policy.6 The 10th Circuit's decision has created a split: most circuits only require the employer's awareness that the religious practice would create a job conflict.7 The EEOC is currently seeking an en banc rehearing of the 10th Circuit's ruling.8

If the plaintiff makes out a prima facie case, "[t]he burden then shifts to the employer to: (1) conclusively rebut one or more elements of the ... prima facie case; (2) show that it offered a reasonable accommodation; or (3) show that it was unable reasonably to accommodate the employee's religious needs without undue hardship."9

An accommodation would cause undue hardship if it would require the employer "to bear more than a de minimis cost."10 What qualifies as de minimis is a broad inquiry, which includes burdens placed on co-workers, safety issues, and other potentially nonquantifiable costs.11

The United Kingdom

In the UK, both religion and belief are protected under the Equality Act 2010 (the "Act"). This means that employees are protected against discrimination on the grounds of religion or belief in relation to recruitment, the terms and conditions of employment offered to them, their treatment during employment and in respect of dismissal. "Religion" for these purposes is given the broad definition of any religion or lack of religion. Similarly, "belief" covers any religious or philosophical belief (or lack thereof). Religious belief goes beyond beliefs about and adherence to a religion and may vary between people of the same faith. There is no question that the Islamic religion and Islamic beliefs fall within the religions and beliefs protected under the Act.

An employee may suffer discrimination in two principal ways: either directly or indirectly. A claim of direct discrimination arises where an employer treats an employee less favorably than they would treat another person on the grounds of religion or belief. The employer cannot justify direct religious discrimination (other than by relying on one of the statutory exceptions, for example, that there is an occupational requirement for an employee to be of a particular religion or belief or that they are exercising the positive action provisions of the Act in order to address an existing inequality).

A claim of indirect discrimination, on the other hand, arises where a group of people with a shared religion or belief are disadvantaged by a particular provision, criterion or practice of the employer (a "PCP"), for example, a dress code policy. Employers will have a defense to an indirect discrimination claim where they can show that enforcing that PCP is a proportionate means of achieving a legitimate aim. This is similar to the concept of reasonable accommodation in the United Sates and will be the focus of our article. What amounts to a legitimate aim and whether an employer's PCP is proportionate has been the subject of much case law involving Muslim employees, and these are discussed further below.

To help employers understand their rights and obligations under the Act, the Equality and Human Rights Commission has published a Statutory Code of Practice (the "EHRC Code") and non-statutory guidance. The EHRC Code does not impose legal obligations and it is not an authorative statement of the law. However, tribunals and courts must take relevant sections of the EHRC Code into account when deciding discrimination claims brought by employees.

Guidance from the Courts on Muslim Practices

(1) Eid

Eid is a religious holiday...

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