Religious Harassment

Under the California Fair Employment and Housing Act (FEHA), it is unlawful to harass an employee for adhering to or respecting a certain religious creed. California Government Code section 12940(j). A “religious creed,” is broadly defined under the FEHA to include “all aspects of religious belief, observance, and practice, including religious dress and grooming practices.” “Religious dress practice” is defined “to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a” religion. “Religious grooming practice” is defined “to include all forms of head, facial, and body hair that are part of an individual observing a” religion. California Government Code section 12926(q). Under the FEHA, “religious creed” includes the observance of a Sabbath or other religious holy days, and reasonable time necessary for travel to a religious observance. California Government Code section 12940(l).

Protection of an employee’s religious convictions extends well beyond traditional religions. It includes “all sincere religious beliefs which are based upon a power or being, or upon a faith, to which all else is subordinate or upon which all else is ultimately dependent” United States v. Seeger (1965) 380 U.S. 163, 177. More specifically, an individual’s religious belief is protected if the religious belief is “[a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.” Id.

Under the Civil Rights Act of 1964 (Title VII), United States Code section 2000d, et seq., which is enforced in part by the Equal Employment Opportunity Commission, “religious practices” include moral or ethical beliefs about what is right and wrong that are sincerely held with the strength of traditional religious views. 29 Code of Federal Regulations section 1605.1.

What qualifies as a “religious creed”? A religion qualifies if it:

• Addresses fundamental and ultimate questions having to do with deep and imponderable matters;
• Is comprehensive in nature, consisting of a belief system as opposed to an isolated teaching; and
• A religion can be recognized by the presence of certain formal and external signs. Friedman v. Southern Calif. Permanente Med. Group (2002) 102 Cal.App.4th 39, 69-70. (“Such [formal and external] signs might include formal services, ceremonial functions, the existence of clergy, structure and organization, efforts at propagation, observation of holidays and other similar manifestations associated with the traditional religions.” Malnak v. Yogi (3d Cir. 1979) 592 F.2d 197.

In Friedman v. Southern Calif. Permanente Med. Group (2002) 102 Cal.App.4th 39, the Court of Appeal, Second District concluded that veganism is not a “religious creed” within the meaning of the FEHA because, while veganism is a personal philosophy and a way of life, it does not extend to ultimate questions as it fails to speak to “the meaning of human existence; the purpose of life; theories of humankind's nature or its place in the universe; matters of human life and death; or the exercise of faith.” Friedman at page 70.

In Cavanaugh v. Bartelt (D. Neb. 2016) 178 F.Supp.3d 819, the plaintiff was a prisoner in the Nebraska State Penitentiary. Cavanaugh described himself as a “Pastafarian,” a believer in the divine “Flying Spaghetti Monster” who practiced the religion of “FSMism.” He sued prison officials for refusing to accommodate his religious requests to, among other things, wear religious clothing and accessories and meet for weekly worship services. The United States District Court for the District of Nebraska ruled that “FSMism” was not a religion, but, rather, a parody, which first arose as a response to the theory that the origins of life on Earth can be found in “intelligent design.”

As way of background, in 1968 the United States Supreme Court struck down an Arkansas law prohibiting the teaching of evolution. Thereafter, opponents to the teaching of evolution advocated a new curriculum—ultimately found to be unconstitutional under the First Amendment—which utilized “scientific-sounding language to describe religious beliefs and then [required] that schools teach the resulting “creation science” or “scientific creationism” as an alternative to evolution.” Cavanaugh at page 824. The concept of intelligent design was then promoted. Unlike creation science, the being posited to have created and executed the intelligent design was not expressly identified as a deity, FSMism was a satirical response to “intelligent design.” Given that intelligent design “does not identify the designer, its ‘master intellect’ could just as easily be a ‘Flying Spaghetti Monster’ as any Judeo-Christian deity—and, in fact, that there is as much scientific evidence for a Flying Spaghetti Monster as any other creator.” Cavanaugh at page 825. FSMism’s satirical gospel dispels malicious myths such as evolution and humans being descended from apes, as while humans share 95 percent of their DNA with chimpanzees, they share 99.9 percent of their DNA with pirates, explaining why attendees of FSMism worship services wear buccaneer garb.

Cavanaugh alleged he was a Pastafarian who had “openly declared his beliefs for many years” Cavanaugh at page 827. The court ruled that while it would not probe into the validity of Cavanaugh beliefs, FSMism was “not a belief system addressing ‘deep and imponderable’ matters: it is . . . a satirical rejoinder to a certain strain of religious argument.” Cavanaugh at page 829. Nor does FSMism advocate for humanism or atheism, belief systems that courts have found to be religious because they deal with the existence and importance of a supreme being and explore a code of ethics.

In Malnak v. Yogi (3d Cir. 1979) 592 F.2d 197, the United States Court of Appeals for the Third Circuit determined that a course in Transcendental Meditation (which required students to a attend a ceremony called a “puja” and make offerings to a deified “Guru Dev.”) was a religious activity, agreeing with the conclusion of the district court that “[r]eligion, as comprehended by the first amendment now includes mere affirmation of belief in a supreme being.” Malnak at page 199.

Again, however, protection extends to people adhering to non-traditional religions as well. For instance, atheism has been declared protected. See Young v. Southwestern Sav. & Loan Assoc. (5th Cir. 1975) 509 F.2d 140, 143-144. In Young, the plaintiff, an excellent employee who had a good relationship with both coworkers and supervisors, was required to attend monthly staff meetings “that began with a short religious talk and a prayer, both delivered by a local Baptist minister.” Young objected to the religious content of the meetings and began to refrain from attending them. When Young disclosed that she was an atheist upon being questioned over her failure to attend recent monthly meetings, she was advised that it was mandatory that she attend the entire meetings and, if she objected to the devotionals, she could simply close her ears during the opening portion of the meetings. When Young later reiterated that she could not attend prayer meetings, she was asked to submit a letter of resignation. Young filed a lawsuit and the United States Court of Appeals for the Fifth Circuit ultimately ruled that “Young was constructively discharged in circumstances which amounted to religious discrimination against her by Southwestern “

Generally, non-conventional religions will be covered under the FEHA and Title VII so long as the belief is sincere and most other beliefs of the individual are subordinate to it.

The test for proving an incident of harassment based on the victim’s religion is similar to the tests for racial and sexual harassment and requires the plaintiff to demonstrate:

• She was a member of [a particular religion];
• She was subjected to unwelcome harassment;
• The harassment was based on her [religious creed or observance],
• The harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment [or, pursuant to California Government Code section 12923(a), altered working conditions as to make it more difficult to do the job]; and
• The [employer or entity] was liable for the harassment.” Thompson v. City of Monrovia, (2010) 186 Cal. App. 4th 860, 876 (discussing racial harassment).

Religious harassment can consist of:

• Statements expressing offensive religious opinions, particularly those which disparage the religion and the beliefs of another worker for the purpose of exposing the other worker to contempt and ridicule;
• Jokes expressing offensive religious opinions;
• Religion-based threats and fighting words;
• Religion-based slurs and insults; and
• Recurrent, unwanted religious solicitations.

Example: The United States Equal Employment Opportunity Commission (EEOC) sued AutoZone under Title VII alleging that an employee, Mahoney-Burroughs, who was a Sikh (Sikh or Sikhism is the world’s fifth-largest religion by adherents), was subjected to religious harassment by management. AutoZone would not allow Mahoney-Burroughs to wear a turban or a kara (a steel bracelet worn by Sikhs as a symbol of their religious loyalty, and which symbolizes unity with God) even though Mahoney-Burroughs explained to managers why wearing the turban and kara were important to his religion. AutoZone and customers also subjected Mahoney-Burroughs to disparaging questions such as whether he was a terrorist and if he had joined Al-Qaeda and was planning to blow up the store, as well as referring to him as "Bin Laden," “Sikhi,” and “Poon-Jabi King.” Managers referred to his turban as a “towel,” a “Muslim hat,” and stated that the turban was downright offensive. His manager threatened to throw Mahoney-Burroughs out of the store if he returned wearing his turban. AutoZone ultimately settled the claim, agreeing to pay $75,000 and to also implement a new policy prohibiting religious discrimination. EEOC v. AutoZone, Inc. (D. Mass. No. 1:10-cv-11648-WGY).

Religious harassment is normally a separate cause of action from religious creed discrimination. However, harassment is actionable as “discrimination” whenever it is “so severe or pervasive as to alter the conditions of [the victim’s] employment and create an abusive working environment.” Clark County School Dist. v. Breeden, (2001) 532 US 268, 270. Thus, pervasive harassment regarding one’s religious creed may be sufficient to bring two separate claims.

If you have experienced religious harassment at your workplace, contact the lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.