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Religious Discrimination and Accommodation

There’s been a national debate about religious beliefs and work responsibilities lately, revolving around the case of Kentucky County Clerk Kim Davis, who was jailed for refusing to issue marriage licenses to same sex couples. It raises the thorny issue of when worlds collide: job responsibilities in conflict with a person’s religious convictions.

Making fewer headlines but watched with interest by employers is the case of the Muslim flight attendant who filed with the EEOC for religious discrimination when her employer denied accommodation in the serving of alcohol on flights, which she saw as a violation of her faith. Her complaint follows her suspension by ExpressJet.

In an article in the Washington Post, law professor Eugene Volokh talks about these cases and cites a variety of other cases when work duties came in conflict with an employee’s religious beliefs. When does your religion legally excuse you from doing part of your job?  It’s a good article from an informed source: Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law.

Volkoh says:

“Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers — for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties — then the employer must accommodate them. (The Muslim flight attendant I mentioned above, for instance, claims that she has always been able to work out arrangements under which the other flight attendant serves the alcohol instead of her.)”

Volkoh makes observations about accommodations and then discusses them in the light of the Kim Davis’ case. His observations are interesting; Jon Hyman of Ohio Employer’s Law Blog offers a summary of Volkoh’s analysis and adds his own comments in his post, When religious liberty clashes with job requirements

Hyman also has several posts analyzing another huge EEOC religious discrimination case decided earlier this year, a case that he calls a game changer. See his post SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case In that post, he offers a discussion of the Supreme Court decision involving a hijab-wearing applicant, who was denied a religious accommodation based on the company’s “look policy.”

Hyman suggests that employers use a three-pronged approach to religious accommodations in the workplace – ACE: ask, communicate, educate – and he outlines each of those steps:

Ask: Even if an employee comes to a job interview wearing a hijab, it’s still not advisable to flat-out ask about his or her religion. Nevertheless, if you believe an applicant’s or employee’s religion might interfere with an essential function of the job, explain the essential functions and ask if the employee needs an accommodation.

Communicate: If the individual needs an accommodation, engage in the interactive process. Have a conversation with the applicant or employee. Explain your neutral policy for which an exception will have to be made. Talk through possible accommodations, and decide which accommodation, if any, is appropriate for your business and for the individual.

EEducate: Do you have written policy on religious accommodation? Of course, merely having a policy is never enough. You must communicate it to your employees, explain its meaning and operation, and enforce it when necessary.

Employment Law attorney Robin Shea discusses another recent religious discrimination case with a half million dollar judgement in the employee’s favor. The case involves a fairly esoteric religious belief – read the post at Employment & Labor Insider to get a full description: Yes, employers may have to accommodate even “crazy” religious beliefs.

Shea says the lesson in this and other religious cases is that “it doesn’t matter what you think” about the validity of the belief. Shea says:

“In our pluralistic society, it makes sense not to base religious accommodation decisions on whether the employer agrees with the employee, or considers the belief to be “correct.” Should a Jewish employer be able to refuse to accommodate her Seventh Day Adventist employees because she doesn’t share their beliefs? Should a lackadaisical Baptist employer be able to refuse to accommodate more-devout Baptist employees because they’re taking this stuff way too seriously? Should a Catholic supervisor be entitled to demand an “authoritative” letter from the “bishop” of an evangelical Christian employee, who has no bishop? Should an atheist employer be able to refuse to accommodate any religious need because, in the atheist’s opinion, all of that “religious” stuff is a bunch of baloney?
Of course, this would never work. So the law errs on the side of accommodation if (1) the religious belief is sincerely held (no matter how outlandish it may sound to an outsider), and (2) accommodation is not an undue hardship for the employer.”

Related news and resources

Can Kim Davis Be Fired? What CA Employers Should Know About Religious Accommodations

Lessons Employers Can Learn from Kentucky Clerk’s Same-Sex Marriage License Dispute

EEOC Issues Helpful (!) Guidance on Religious Garb and Grooming in the Workplace

Retailers Should Heed Supreme Court Guidance On Religion

EEOC Sues UPS for Religious Discrimination – Package Delivery Giant Discriminated Against Class of Applicants and Employees Whose Religion Conflicted With the Company’s Uniform and Appearance Policy, Agency Charged

Employment Law 101: Religious Discrimination

EEOC: Religious Discrimination

EEOC: Facts About Religious Discrimination

EEOC: Policy Guidance Documents Related to Religious Discrimination

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via Glassdoor

News Roundup: Silver Tsunami, Reinventing the Handbook, Cost of a Bad Hire & More

The Employer’s Role in Mental Health Care
Howard Mavity, Risk Management

“The Germanwings crash demonstrated that employers need to act, but they must approach the problem on several levels. If employers only ramp up their scrutiny of employees, they will make employees even more reluctant to get assistance, so it is critical to begin by educating employees and encouraging them to seek help. A company wellness program, for example, can be used to develop effective messages about depression and other illnesses in the workplace. Then, companies must provide specific management training to accompany increased employer involvement.”

Preparing for the “silver tsunami”
Dave Imbrogno, SmartBlog on Leadership

“…the “silver tsunami” — that wave of maturing associates either preparing to exit the workforce or making the decision to extend their careers.”

“When it comes to an aging workforce, the majority of organizations are unprepared for their workers to retire or for workers who plan to stay past typical retirement age. Very few organizations have implemented specific policies and management practices to deal with the fluctuations that the silver tsunami will cause, leaving the majority of companies at risk of losing decades of knowledge and expertise, failing to continue to develop the workers who remain or unable to recruit more mature employees.”

Why Managers Are More Likely to Be Depressed
Dave Burkas, Harvard Business Review

“According to a new study, middle managers are the most likely people in an organization to suffer from depression. The study, led by Seth Prins, a doctoral student at Columbia University’s Mailman School of Public Health, was recently published online in Sociology of Health & Illness. The researchers examined more than 20,000 full-time workers across a variety of roles. For their sample, they utilized 2001-2002 National Epidemiologic Survey of Alcohol and Related Conditions (NESRAC), and narrowed that down to a set of 21,859 full-time employees. The researchers then segmented those individuals into four categories: owners, managers, supervisors, and workers.”

Mental Health Matters: 8 Stigmatizing Phrases to Stop Using

“The stigma surrounding mental health issues can be a significant barrier to care. Unfortunately, many people unknowingly contribute to the stigma simply with their everyday language choices. A poor choice of words not only stigmatizes, stereotypes, and creates unrealistic assumptions about certain people, but also can trivialize serious mental health conditions and their accompanying experiences.”

The Challenges Of Identifying Potential Workplace Violence
Yuki Noguchi, NPR

“In recent years, more employers are posting workplace violence policies, says Elizabeth Bille, associate general counsel for the Society for Human Resource Management. She says they should enforce them uniformly without giving first-time offenders a pass.
At the same time, Bille says, if an employee has a mental health problem, employers are limited by federal law in their ability to discuss or share that information.
“I think one of the greatest challenges about identifying potential workplace violence is trying to balance fairness to the employee to not overreact and keeping their particular situations confidential, with the very real concerns of co-workers who may start fearing for their safety,” she says. “That is really the crux of the challenge here.”

Healthcare workplace violence efforts should be improved
Nina Flanagan, HealthcareDive

“The ANA [American Nurses Association] recently mentioned their ongoing health risk appraisal in the paper. Preliminary findings showed of 3,765 RNs and student nurses questioned about workplace safety, 43% reported they had been threatened by a patient or family member, and 24% said they had been physically assaulted. However, Dawson said many events go unreported as violence is often accepted as part of the job. “We’re working very hard to get the message out that it isn’t part of the job and violence can no longer be tolerated.”

How to Reinvent the Employee Handbook
Suzanne Lucas, Cornerstone Blog

Every business needs an employee handbook, right? This contains all those fun legal things like the fact that you’re an at-will employee, that you need to comply with a code of conduct, and what the dress code is (among other things). So, it’s a really, really important document. Except that maybe that’s not true. Linda Itskovitz, VP of marketing for employee communications company GuideSpark, says the handbook is a very unimportant document.
Why? Because no one actually reads it. “The employee handbook, as a medium, is not important because the majority of employees never open their handbook in the first place, especially millennials,” Itskovitz says.

The True Cost of a Bad Hire
Glassdoor Survey

“Most companies underestimate the cost of a bad hire, when in actuality, a bad hire can impact an organization in a variety of ways. For example, Zappos found it was spending $100 million on bad hires and now offers employees a $3,000 separation bonus to exit the organization if they are unhappy within the first few months.”

via Glassdoor

via Glassdoor

Quick Takes

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FMLA Update – Tools, Tips and Resources

It’s been nearly a year since our last FMLA Update so we thought we’d weigh in with tools tips and expert opinions.

Big news was that the Department of Labor issued new FMLA notices and medical certification forms in the Spring. They are good through May 31, 2018. Other big issues this year were the extension of same-sex benefits and guidance on pregnancy discrimination from the EEOC.

Our primary go-to resource on FMLA is employment law attorney Jeff Nowak’s FMLA Insights blog. Here are some of his key posts this year, which he says is :

First, he points us to “a valuable FMLA reference for HR professionals and employment attorneys” – the American Bar Association’s Federal Labor Standards Legislation Committee annual report that compiles significant FMLA federal decisions from the prior year. He links to the report, which is available in PDF

Same-sex issues related to FMLA

EEOC Guidance

FMLA Administration

Other articles that caught our eye:

State Laws and regulations

Federal Resources

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News Roundup: The Sad Office; Teaching disobedience; Disengagement; 9-11 & more news of note

The Powerful Effect of Noticing Good Things at Work
Joyce E. Bono and Theresa M. Glomb, Harvard Business Review:

“This simple practice — writing about three good things that happened — creates a real shift in what people think about, and can change how they perceive their work lives. It can also create a feedback loop that enhances its impact: we believe that people who reflect on good things that happened during the day are more likely to share those things with family and friends. Sharing positive events with others creates connections between people and bonds them with one another, further reducing evening stress. Ultimately, this also improves sleep, which our ongoing research suggests leads to greater alertness and better mood — which in turn leads to more positive things happening the next day.”

The Work-Life Equation: Solving the Sad Office
Bill Maw says that “A sad office often resembles some degree of your worst childhood nightmare: a playground full of people behaving badly to one another—bullying, lying, backstabbing, blaming, and demonstrating all types of rudeness and unkindness.” In his post at AMA Playbook, he offers tips that will contribute to solving the sad office dilemma.

Just Say No: Teaching employees to disobey orders is an essential management safeguard
At strategy+business, Theodore Kinni discusses Ira Chaleff’s new book, Intelligent Disobedience: Doing Right When What You’re Told to Do Is Wrong:

“If you are familiar with the experiments of Stanley Milgram and Philip Zimbardo, who wrote the foreword to Intelligent Disobedience, you already know that most people have been conditioned to obey orders given by authority figures, including orders that violate moral, ethical, and legal norms. “It is part of the socialization process in any human culture to teach our young to obey,” writes Chaleff. But he goes on to argue that teaching employees to disobey orders is an essential organizational safeguard — that nurses are protecting patients and their employers by questioning doctors’ orders that fly in the face of their training, and that accountants can prevent massive frauds by refusing to execute orders that violate their professional standards.”

5 tips for managing the impact of employee absences
Gerry Leonard, SmartBlog on Leadership:

The impact of employee absences can be astonishing. According to a recent Gallup-Healthways Well-Being Index the total annual costs related to lost productivity due to absenteeism in the U.S. totaled $84 billion. Although the annual costs associated with absenteeism vary by industry, the greatest loss occurred in professional occupations at $24.2 billion.

There are direct and indirect costs of absence that can cascade through payroll, benefits, and operations — in addition to productivity loss. And the reasons for an employee taking leave are many and varied, ranging from employee’s injury and illness, pregnancy-related issues, newborn care, adoption, foster care, or elder care, to name a few.

Understanding Why Your Employees Are Saturated and Disengaged
Prithvi Shergill, Training:

“Intrinsically, individuals exhibit different levels of passion. The anchors and drivers that account for their passion are deeply ingrained in their unique individual personalities. For example, a person who is self-driven is motivated by autonomy, creativity, and clarity on sense of purpose. A person who is secular in his or her passion orientation—i.e., someone who is motivated when they receive the required support from their organization—is motivated by recognition, meaningful work, and mastery. And a person who is socially driven—i.e., someone who looks at his friends, colleagues, or superiors for encouragement—may have collaboration, connectedness to colleagues, and diversity as his or her key passion drivers.”

9-11 retrospective


More News of Note

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Does your boss make you sick?

OK, if you’ve ever had a bad boss – and come on, who hasn’t? – you know they have the power to make your day-to-day work existence miserable. But did you also know that your bad boss may be making you fat? Research shows that the term “toxic boss” may be more than just a cliche.

Ana Swanson looks at research related to the toll that bad bosses take in an article in the Washington Post:  Research says your bad boss may be making you sad, lazy and fat. She notes that:

“But even the little slights can add up. And these behaviors are not just unpleasant for employees. Research suggests they are actually bad for worker health.

Experiencing rudeness at work, and even replaying the event in your head later, elevates levels of hormones called glucocorticoids, Christine Porath, an associate professor at Georgetown University’s McDonough School of Business, recently argued in an op-ed for the New York Times. That can lead to disparate health issues, including increased appetite and obesity.”

Other researchers at the University of Louisville looked at dysfunctional boss behaviors, plotting them on a dysfunctional behavior chart, ranging from annoyances like bosses who take credit for others’ ideas to traumatic behavior such as verbal or physical mistreatment.

At the root of the bad behavior Porath’s research finds that many people believe that having a tough or curt attitude helps them to project authority.

“A quarter of Porath’s respondents thought that people would regard them as less of a leader if they behaved more civilly. Almost 40 percent said they were afraid they would be taken advantage of if they were too nice, and nearly half said it was better to “flex one’s muscle to garner power,” Porath writes.”

The Kellogg School of Management’s Insight series often discusses the topic of “bad bossism.”
A recent podcast focused on the topic of toxic bosses and how you can avoid bringing them into your organization. Jon Maner, a professor of management and organizations at the Kellogg School, has made it his business to study bad bosses, with a particular focus on the power-hungry boss — the type of manager who will squelch good performers and promote poor performers to keep from being overshadowed.

As shown in the research discussed above, a fundamental insecurity may be one of the driving forces in this type of manager. In the podcast, Maner is joined by James Shein, a clinical professor of strategy at the Kellogg School, who has observed managers at failing companies, finding that hubris is often the culprit. Shein says that often “The power is more important than the decision as to recognizing that they need to change.”

How can organizations avoid these toxic bosses? One way that Maner and Shein suggest is to push for more accountability and transparency among managers; or even better, avoid hiring the power-hungry bosses in the first place.

How do you do that? Look for what motivates them:

“Maner’s research looks at the differences between leaders who are motivated by power versus those who are motivated by prestige, meaning they want people to like and respect them. What our work suggests is that people with a real thirst for respect and admiration are probably going to be better bosses than people with a real desire for power and control and authority.

That often means, ironically, picking people who don’t crave power. I think there’s a natural selection by us. When people really want power they do whatever they can to rise through the hierarchy. Ironically those aren’t necessarily the best people for the job.”


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Need better bosses?  Check out ESI’s Management Academy, just one of the many employer-focused services offered by our EAP.

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Labot Day by the Numbers Infographic -

Facts about American Workers

For Labor Day, The Pew Research Center takes a look at today’s workforce and presents a series of data trends and observations: 8 facts & trends about American workers. We’ve summarized the major findings – read the full article for details and charts.

1. Over the past three decades, the share of American workers who are union members has fallen by about half.
2. There is broad support for the right of workers to unionize across a range of occupations.
3. Millennials are now the largest generation in the labor force.
4. American women earn 83 cents on the dollar compared with men, but the youngest working women are narrowing that gap substantially.
5. On virtually every measure of economic well-being and career attainment, young college graduates are outperforming their peers with less education to a greater extent than in the past.
6. A much smaller share of U.S. teens work today compared with in the 1970s.
7. The idea of raising the federal minimum wage has broad popular support, but less among Republicans.
8. New overtime rules could make more than 5 million white-collar workers newly eligible for extra pay.

Here are some other interesting facts about the average workforce this Labor Day in an infographic from

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