Chapter 8
DISCRIMINATION BASED ON RELIGION AND NATIONAL ORIGIN AND PROCEDURES
UNDER TITLE VII
INTRODUCTION
This chapter deals with the Title VII provisions and procedures regarding discrimination based on religion
and national origin. The protection that Title VII provides for employees from religious discrimination is
CHAPTER OUTLINE
Discrimination on the Basis of Religion
Background
Employment discrimination on the basis of religion is prohibited by Title VII.
Religion under Title VII is broadly defined as “. . . all aspects of religious observance and
practice, as well as belief. . . .”
This definition does not include personal political or social ideologies like the Ku Klux
Klan.
Exceptions for Religious Preference and Religious Employers
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Three-part Lemon test for determining whether government action affecting religion is in
violation of the First Amendment
THE WORKING LAW
A Divided Supreme Court Holds that RFRA Trumps Obamacare
The HHS mandate requires the family-owned business to provide insurance coverage for potentially life–
terminating drugs and devices, contrary to the religious convictions of the owners of Hobby Lobby – or
pay fines to the IRS.
Ministerial Exemption Under Title VII
Religious organizations enjoy the right of free exercise of religion as well.
The ministerial exemption prevents government entanglement in religious organizations by
allowing the religious organization to avoid liability under Title VII in personnel decisions involving
who will perform a spiritual function and how those functions would be organized. The exemption
only applies to employment decisions; sexual harassment or retaliation may not be exempt because it
does not involve an employment decision.
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 8
Religious corporations
Religious educational institutions
CASE 8.1 CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS
CHRIST OF LATTER-DAY SAINTS V. AMOS
483 U.S. 327 (1987)
Background: Mayson worked for sixteen years as an assistant engineer and engineer at the Deseret
Gymnasium, a non-profit facility, open to the public and run by two corporations affiliated with the
Mormon Church (CPB and COP). Mayson was fired in 1981 after he failed to qualify for a “temple
recommend” which is a certificate that he is a member of the Mormon Church and can enter its temples.
Mayson and others of a class of aggrieved plaintiffs brought suit against CPB and COP alleging that they
were victims of religious discrimination under the Civil Rights Act of 1964. The defendants moved for
dismissal on the grounds that they are exempt from liability under Section 702. The plaintiffs then
argued that if Section 702 were construed to allow religious employers to discriminate for religious
grounds in hiring for nonreligious jobs, then the law violates the Establishment Clause.
The District Court then assessed the constitutionality of Section 702. The Court in applying the Lemon
test found that the law had a permissible secular purpose—assuring government neutrality and non-
interference in religious affairs by keeping it out of the decision-making process in religions. The Court,
however, found that Section 702 impermissibly had the primary effect of advancing religion and thus
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Decision: No. The Supreme Court found that the District Court erred. The Supreme Court has never
indicated that a law that gives special consideration to religious groups is invalid per se. Such a finding is
Mayson also argued that Section 702 violates the Equal Protection Clause by giving employees of
religious employers less protection than employees of secular employers. The Supreme Court disagreed,
saying that a statute that is facially neutral and is motivated by a permissible purpose of keeping the
government from interfering with the free exercise of religion, while passing the Lemon test, is not
Justice Brennan filed a concurrence in which Justice Marshall joined saying that a case-by-case
determination whether the organization’s nature is religious or secular is inappropriate. Justice O’Connor
also filed a concurring opinion, stating that “question of the constitutionality of the Section 702
exemption as applied to for-profit activities of religious organizations remains open.”
ANSWERS TO CASE QUESTIONS
1. The Lemon Test is relevant under Title VII because courts are asked to determine whether there
2. According to the Supreme Court the rationale for the enactment of 702(a) was to keep the
government from interfering with the free exercise of religion. Applying this standard, the Court
3. Section 702(a) applies to all positions. Section 702(a) enables religious organizations to
discriminate on the basis of religion in all employment decisions. The exemption does not entirely
allow religious organizations to discriminate on the basis of race or gender. However, when it
concerns a matter of the hiring of a clergy, the church is given preferential treatment and the
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employee is unsuccessful or is an undue hardship, the employer may terminate the employee.
CASE 8.2 TRANS WORLD AIRLINES V. HARDISON
432 U.S. 63 (1977)
Background: Larry Hardison, the respondent, worked for TWA, the petitioner, in its Stores Department
in Kansas City. The Stores Department is required to be open 24 hours per day, 365 days per year,
meaning that whenever a job shift is not filled, an employee must be brought in from another
department, or a supervisor must cover. Hardison, and all other employees, were subject to a seniority
system called for in the CBA between TWA and the Union. The seniority system allowed the most
senior employees to have first choice of job and shift, and the junior employees must work when the
union steward cannot find enough people to work a shift.
About a year into his tenure at TWA, Hardison became a member of the Worldwide Church of God. As
a member of this religion, Hardison was required to observe the Sabbath (from sunset Friday to sunset
Saturday) and religious holidays. One day Hardison informed Kussman, the manager, of his religious
convictions. Kussman agreed to notify the union steward to seek a job swap or seek a change in days off
The Appeals Court held that TWA committed an UEP under Section 703(a)(1) of the act because it did
not make a reasonable effort to accommodate Hardison’s religious needs.
Issue: Is requiring an employer to circumvent a seniority system established pursuant to a collective
bargaining agreement between the union and employer in order to accommodate an employee’s religious
beliefs an undue hardship on the conduct of the employers business because it is more than a de minimis
cost?
Decision: Yes. The seniority system is itself a significant accommodation to the needs of all TWA
employees and represents a neutral method for minimizing the chances an employee would have to work
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ANSWERS TO CASE QUESTIONS
1. Hardison developed his religious beliefs after he was hired, so there was no problem when he was
hired. The particular problem with his beliefs arose when he transferred to a job in Building 2, and
given the separate seniority lists for each building, so that he had insufficient seniority to work a
2. No. The union could insist upon enforcing the seniority provisions of the collective agreement
3. TWA is unwilling to pay some other employee overtime because it would be more expensive and
could impair efficiency. No; the Court held that TWA was not required to bear more than a de
minimum cost-and the regular payment of premium wages goes beyond a de minimum cost.
The Duty of Reasonable Accommodation
Determining what a reasonable accommodation is and whether it is an undue hardship is a
facts and circumstances inquiry into the individual case.
EEOC factors to consider in determining reasonable accommodation and undue hardship
CASE 8.3 WEBB V. CITY OF PHILADELPHIA
562 F.3d 256 (3d Cir. 2009)
Facts: Webb is a practicing Muslim working as a police officer for the City of Philadelphia. She sought
permission to wear a Muslim headscarf while on duty and was denied because the Police Department’s
policy prohibits the wearing of religious symbols or garb on the uniform. Webb then filed a complaint
under Title VII with the state employment commission and the EEOC, alleging religious discrimination.
Issue: Would allowing Webb to wear a headscarf while on duty constitute an undue hardship on the
Cihon/Castagnera, Employment and Labor Law, 9e Instructor’s Manual Chapter 8
Philadelphia Police Department?
Decision: Yes. If the plaintiff establishes a prima facie case, the employer is then required to show it has
made a good faith effort to accommodate the employee’s religious belief, or that the accommodation
Title VII’s prohibition of religious discrimination does not require that an employer allow an
employee to impose her religious views on co-workers. Wilson v. U.S. West Communications is an
example.
Ansonia Board of Education v. Philbrook stands for the preposition that an employer may
choose any reasonable accommodation including one that is not the employee’s preferred reasonable
accommodation.
ETHICAL DILEMMA
Allah in the Workplace?
The student is asked to play the role of human resource manager at Wydget. A small group of employees
are Muslims; some among this group wear turbans and burkas. This group has asked the HR manager to
allow them to conduct Muslim prayer services in the company cafeteria during their breaks. Some other
employees of the company have expressed concern that these prayer meetings may be a cover for terrorist
or subversive activities. Additionally, the HR manager is concerned that allowing these Muslim prayer
services would cause a slippery slope among workers of other religions wanting to hold their own
religious or prayer services.
QUESTIONS:
Yes. Allowing the Muslims to pray in the cafeteria would not cause an undue hardship. Permitting them
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Discrimination Based on National Origin
Background
Definition
Discrimination based on national origin “includes any discrimination based upon the place
of origin of an applicant or employee or his or her ancestor(s) and any discrimination based upon the
physical, cultural, or linguistic characteristics of an ethnic group”
Employers can conduct extra background screening on employees or applicants as long as
those requirements are related to legitimate job concerns and applied uniformly to similarly situated
employees or job classes.
Section 703(g) specifically notes that an employer does not violate Title VII if it refuses to
hire or discharges somebody who cannot obtain a national security clearance when it is required for
that particular job.
CASE 8.4 EQUAL EMPLOYMENT OPPORTUNITY COMISSION V. WC&M ENTERPRISES, INC.
496 F.3d 393 (5th Cir. 2007)
Background: Rafiq is a practicing Muslim who was born in India. He was also a car salesman at WC&M
enterprises during and immediately after the 9/11 terrorist attacks. After the terrorist attacks, co-workers
and managers subjected Rafiq to ongoing harassment by implying that he had been involved in the 9/11
attacks, calling him an Arab (even though he was not) and a member of the Taliban, and mocking his
dietary restrictions and need to pray during the workday. Rafiq repeatedly asked his co-workers and
managers to stop, but to no avail. Things came to a head on October 16, 2002 when Rafiq and his
manager Swigart got in an argument over whether it was really mandatory to attend a United Way
meeting. Swigart said, “This is America. That’s the way things work over here. This is not the Islamic
country you came from.” After this argument, Swigart issued a written warning to Rafiq stating that he
was acting like a Muslim extremist and that Swigart could not work with Rafiq because of his militant
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stance. Ten days later a manager banged on a partition between his and Rafiq’s workspace. Rafiq then
complained to the dealer’s general manager, Burgoon. Two days after this complaint, Rafiq was fired.
or harassment was such that his daily life was interrupted.
Issue: Is a hostile work environment, and thus a Title VII violation, present when an employee’s
workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working environment
when the employee is subject to verbal harassment for approximately one year and sporadically subject to
additional incidents of harassment?
Decision: Yes. For harassment to be sufficiently severe or pervasive to alter the conditions of the victim’s
employment, the alleged misconduct must be both objectively and subjectively offensive. Under this
The evidence also showed that Rafiq was harassed based on his religion or national origin. The EEOC’s
guidelines on discrimination do not require that the harassment be based on the victim’s actual national
origin, but that it is sufficient “to show that the complainant was treated differently because of his or her
suffer sufficient mental anguish. The case was reversed and remanded.
ANSWERS TO CASE QUESTIONS
1. Rafiq was harassed on the basis of national origin. Evidence to support to his claim for national
2. Rafiq claimed significant emotion injury when he stated that he was forced to seek counseling from
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3. The employer can adopt a no toleration discrimination policy that outlines and defines
discrimination, mechanisms to report discrimination, steps taken to remedy the discriminatory
conduct, and consequences for discrimination. The employer can then inform its employees of the
Disparate Impact
Arbitrary employment criteria like height or weight requirements can constitute a disparate
THE WORKING LAW
Mining Company Fired Foreman Because He Complained About Pervasive Harassment
Mining company Rhino Eastern LLC violated federal law when it subjected a mine foreman to pervasive
national origin discrimination and retaliated against him for his opposition to the harassment, the U.S.
Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.
English-Only Rules
English-only rules are rules that prohibit employees from speaking a language other than
English at work.
CASE 8.5 CASTILLO V. WELLS FARGO BANK, N.A.
554 Fed. Appx. 646 (9th Cir. 2014)
Facts: The Wells Fargo Team Member Handbook states, “English is the business language for Wells
Fargo’s U.S. operations.” Plaintiff Martha Castillo challenged this Wells Fargo rule on the basis of
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national origin discrimination.
Issue: Does the “English only” rule violate Title VII?
National origin discrimination does not include discrimination on the basis of citizenship.
The Immigration Reform and Control Act of 1986 and Discrimination Based on National
Origin or Citizenship
IRCA prevents employment discrimination on the basis of national origin against applicants
or employees other than illegal aliens. But, employers may discriminate on the basis of citizenship if
necessary to comply with laws or contracts or determined to be essential for the employee to do
business with the government.
Enforcement of Title VII
The Equal Opportunity Employment Commission (EEOC)
The EEOC administers and enforces Title VII.
A five-member commission heads the EEOC. The commissioners are appointed by the
present subject to Senate confirmation. The EEOC’s general counsel is also a presidential employee
subject to Senate confirmation.
Unlike the NLRB, the EEOC does not adjudicate Title VII violations and it is also not the
exclusive enforcement agency for discrimination complaints. Instead of adjudicating, the EEOC tries
to reach a settlement and if a settlement is not reached the EEOC may file suit in federal court.
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A complaint alleging employment discrimination must first be filed with the state or local
agency authorized to handle those claims, if there is one. The EEOC can only consider the complaint
after 60 days have elapsed from the state or local government first receiving the complaint or when
the state/local agency ceases processing the complaint, whichever is first.
Mohasco Corp. v. Silver (U.S. 1980) is an example of the application of these time limits.
EEOC Procedure and Its Relation to State Proceedings
There are many “work–sharing” agreements between state agencies and the EEOC. Under
these agreements, the agency that receives the complaint first processes it.
When Does the Violation Occur?
The time limit begins to run “on the date that the individual is aware of, or should be aware
of, the alleged violation, not on the date the alleged violation has an adverse effect on the individual.
Delaware State College v. Ricks (U.S. 1982)