New York Employment Lawyer Blog

McKinsey & Co. is faced with a religious discrimination lawsuit that may be the first of its kind. In the lawsuit, recently filed in Manhattan federal court, a former employee of the company claims he was subjected to ridicule and taunts from co-workers after he began wearing a yarmulke at work. The man claims he complained to the Human Resources Department of the company but was told to “wait it out.” He claims he eventually went to the police after his boss’s ex-boyfriend allegedly threatened him for complaining about the treatment he was receiving. He was fired two days later.

But in an interesting twist, the twenty-nine year old man, Ciro Roselli, is not Jewish. Rather he practices “theosophy,” a spiritual philosophy which holds “there is no higher religion than truth.” Roselli explained to the New York Post “that he began exploring theosophy in 2007, shortly before he was hired by McKinsey as an executive assistant.” He continued, “it is all about finding the truth in religions . . . I’m still learning all the different facets.” It is this exploration into religion that allegedly lead to his wearing the religious head covering in the office, and the subsequent harassment he endured.

Roselli was allegedly subjected to a wide range of derogatory and humiliating comments from his co-workers and supervisors such as accusations he wasn’t “a real Jew,” being told to “Take that yarmulke off! You’re creeping me out,” and “you can’t be Jewish if you’re Italian.” One co-worker allegedly commented, “I guess I won’t be asking you for a loan”- seemingly “a reference to the stereotype that Jewish people are ‘cheap.’” Roselli also claims that his boss likened him to Madonna, allegedly drawing a parallel between the two’s “sudden embrace of Judaism,” even going so far as to send him an email with the subject line “Madge Roselli.” The popstar is known for having the nickname “Madge.” The former employee is now suing the company for discrimination and retaliation after his termination in April 2011.

The City of New City recently settled a religious discrimination claim against a New York City hospital after it withdrew a job offer because the applicant was unable to work on the Sabbath.

Alisa Dolinsky, the plaintiff, is an Orthodox Jewish nurse who was unable to work from sundown Friday until sundown Saturday due to her religious beliefs. This incident occurred in 2007 and Ms. Dolinsky brought her claim before the New York City Human Rights Commission and it was ultimately settled for $40,000.

This case raises an interesting question as to the burdens on the plaintiff in establishing discrimination in the context of a failure to hire situation. Most employment discrimination cases are brought by employees who are presently with the company or those who have been fired. It is a much less frequent claim when someone has never been employed by a particular company or organization.

The Wall Street Journal article reporting this is available here.

A record number of Muslim workers are complaining of religious discrimination, from co-workers calling them “terrorist” or “Osama” to employers disallowing them from wearing head scarves or taking, religiously obligated, prayer breaks.

The Federal Equal Employment Opportunity Commission has found enough merit in some of the complaints that it has filed several lawsuits on behalf of Muslim workers. Last month, the commission sued JBS Swift, a meat packing company, on behalf of 160 Somali immigrants, saying supervisors and co-workers had cursed at them for being Muslim, thrown blood, meat and bones at them, and interrupted their prayer breaks.

Although Muslims make up less than 2 percent of the United States population, they accounted for about one-quarter of the 3,386 religious discrimination claims filed with the EEOC last year.

A Satisfaction of Judgment was entered recently against AT&T pursuant to a claim of religious discrimination that originated back in July of 2005. AT&T, the United States’ largest provider of telephone, wireless, and internet services, was found to be guilty of religious discrimination when it suspended and subsequently fired two male customer service technicians after the two had attended a Jehovah’s Witnesses convention from July 15 to July 17, 2005.

In October of 2007, a twelve-person jury awarded $756,000 in damages, an award that was upheld on appeal and increased to $1.3 M with interest and front pay. The EEOC (Equal Employment Opportunity Commission), which brought the lawsuit on behalf of the two employees, strongly denounced the action in claiming that the choice between employment and a sincerely held religious belief should never have to be made.

The EEOC also made it clear that if a company chooses to partake in such blatant religious discrimination, that the law will demand there is a high price to pay for such actions from management. Additionally, Judge Leon Holmes of the Eastern District of Arkansas, who presided over the proceedings, also granted an injunction against the communications company prohibiting them from perpetrating any further religious-based employment discrimination.

Muslim transit employees being forced to wear an MTA logo on their turbans are arguing that they are being discriminated against by the MTA because of their religion. The employees have complained that the MTA’s forcing this imposition upon Muslims and Sikhs is disrespectful of their religious practices. Recently, the employees took action to try to get rid of the logo once and for all. On June 16, twenty-seven New York City Council members signed a letter sent to New York City Transit President Howard Roberts, calling for him to eliminate the requirement.
The logo requirement started as a compromise to allow Muslims to wear their religious turbans or scarves, but the workers see it as the MTA’s way of presenting an ultimatum that forces the employees to wear a corporate logo in their sacred space if they want to continue working.

Along with this letter from the City Council members, the MTA is also in the midst of a 2004 federal discrimination lawsuit with the U.S. Justice Department regarding employees and their religious headwear. It is still unclear whether the current situation will lead to court action against the MTA as well.
City Councilman John Liu referred to the rule as, “as backwards as you can possible imagine,” while City Councilman David Werpin said, “No one should ever, ever, under any circumstances, have to choose between their livelihood and their religion.”

Oil giant, ConocoPhillips, which operates refineries around the world, agreed to settle a religious discrimination lawsuit brought by the Equal Employment Opportunity Commission (EEOC).

According to the lawsuit, ConocoPhillips unlawfully discriminated against Clarence Taylor, a pipe fitter, at its refinery in Linden, N.J. Taylor had served as a deacon in his congregation, and in May 2006, was informed by the company that he was required to work a schedule that would force him to miss Sunday mass or else he would be terminated.

“If reasonable alternatives exist, the law does not allow an employer to force an employee to choose between keeping his job and practicing his faith,” said District Director Spencer H. Lewis of the EEOC’s New York District Office.

ConocoPhillips actions, violate Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination and requires employers to make reasonable accommodations for employees’ and applicants’ sincerely held religious beliefs.

The EEOC had sought relief for Taylor and policy changes at ConocoPhillips, including: revised employment policies and new training for its managers. ConocoPhillips has agreed to the recommend changes by the EEOC and will provide $20,000 to resolve the ligation, including relief for Taylor and a donation to charity, as well as five days of additional leave for Taylor.

According to recent articles in The Washington Post and on CNN.com, two U.S. Army recruits of Sikh faith have filed complaints with the Army and U.S. Department of Defense for religious discrimination over policies requiring them to cut their hair and beards and prohibiting them from wearing a dastaar, which is a turban worn as part of the Sikh religion. Captain Kamaljit Singh Kalsi, a doctor specializing in emergency medicine, and Second Lieutenant Tejdeep Singh Rattan, a dentist, were told that their hair and dastaars would not be a problem at the time they were enrolling in the Army’s Health Professional Scholarship Program, which pays for medical education in return for military service. However, they are now being told that to become eligible for active duty in the Army in July 2009, they must cut their hair and beards and remove their dastaars. They are both fighting against the military regulations because it is preventing them from serving their country as medical personnel for soldiers.

The miliary regulations implemented by the Department of Defense permit religious headgear to be worn only if it can be completely covered by the military headgear. Since other headgear is not allowed to be worn on top of the dastaar, Sikhs cannot abide by the regulations. The two Army recruits, who are represented by the Sikh Coalition, a New York-based national advocacy group for the Sikh community, are asking the military to respect their religion and to not make them cut their hair and beards and remove their dastaars because those are mandatory articles of faith according to their religion. If the two Army recruits are unsuccessful, they will be honorably discharged and required to pay back their medical and dental school loans.

A Federal District Court in Minnesota granted privileges to employees in two religious discrimination suits brought by the Equal Employment Opportunity Commission (EEOC) that sought the right to pray during the day against a leading Minnesota chicken processor, Gold’n Plump Poultry, Inc., and an employment agency, The Work Connection. The court held that providing Muslim employees with a break that would coordinate with the timing of prayers was required to accommodate those employees’ religious beliefs.

In addition, the EEOC had alleged in EEOC v. The Work Connection that, in order to be referred for work at two Gold’n Plump’s facilities, applicants were required to sign a form stating that they would not refuse to handle pork during their jobs. In addition to discontinuing use of the “pork form,” The Work Connection will provide 28 class members, job seekers previously turned away for refusing to sign the “pork form,” with an offer for placement at Gold’n Plump. The decrees in both cases prohibit retaliation by the employers and provide for training and reporting to the EEOC.

As additional remedies, Gold’n Plump will provide $215,000 to a class of 128 Somali American Muslims who claimed religious discrimination. An additional $150,000 will be paid to the 28 class members under the consent decree entered in EEOC v. The Work Connection.

“Employers need to recognize the increasing diversity of religion in our country and provide accommodations as required by Federal employment discrimination laws,” stated EEOC Acting Chairman Stuart J. Ishimaru. “Systemic cases such as these make workplaces better for many individuals.”

Claims of religious discrimination and charges filed with the EEOC have been on the rise in recent years and the issue of religious discrimination is becoming more prevalent in the workplace.

This week, The New York Times published an article reporting that on February 5, 2009, President Obama signed an Executive Order to revamp the White House’s office for religious-based and neighborhood programs. The Executive Order will expand the office, which provides government support to religious organizations and charities that provide vital social services to its surrounding neighborhood communities, an initiative launched under the direction of former President George W. Bush.

Obama’s expansion of the office, however, has not settled the ongoing debate over whether these faith-based organizations that receive Federal grants for their social service programs may legally discriminate on the basis of religion, hiring only those individuals whom share their faith.

The former administration held the firm belief that faith-based organizations could indeed hire based on religious belief, a position that elicited fierce debate between religious groups and other interested groups and individuals concerned with keeping church and state separated. There is obvious potential for employment discrimination on the one hand, and religious groups that wanted to preserve their right to use religion as a hiring criterion, have threatened to discontinue their participation in the government program if they are forced to change their policies. However, the current administration has taken the position that the faith-based policy should be reviewed on a case-by-case basis prior to the determination of whether a particular group can receive Federal funds and hire employees based on their religious beliefs.

Joshua DuBois, Director of the new White House Office of Faith-Based and Neighborhood Partnerships, acknowledges the need for case-by-case review due to the lack of clarity in this policy field. However, DuBois leaves the door open for possible recommendations from the administration for legislative action on the issue of the legality of religious-based hiring discrimination upon receipt of Federal funds in the future, in the event that his office consistently comes up with the same findings in its reviews.

There are various Federal, New York State and New York City laws that protect employees from religious discrimination on the basis of their religious beliefs. Even if a particular employee’s religious beliefs are not entirely compatible with work hours, workplace practices or certain days of the week, employers MUST work with the employee to try and accommodate him/her.

The reasonable accommodation standard under the framework of a religious discrimination claim is somewhat different from that analysis under a disability claim. An employer has an obligation to reasonably accommodate a "sincerely held" religious belief. The difficulty arises in determining what exactly is or is not "sincerely held."

The reasonable accommodation standard is subject to an employer claiming undue hardship, which means that it would conflict with legitimate business interests.

Religious discrimination in the workplace does not happen openly in front of many witnesses. It does, however, still exist and we must work to put an end to it and to celebrate the concept of religious freedom on which our country was founded.

According to a recent article published in The New York Times, Merrill Lynch paid $1.55 million to settle a lawsuit brought by an analyst who claimed he was terminated because he is an Iranian Muslim. Majid Borumand, a quantitative analyst, claimed that Merrill Lynch discriminated against him on the basis of his religion and national origin when he was terminated and that a less qualified employee was retained and promoted. As an additional obligation under the settlement agreement, Merrill Lynch agreed to improve employee training on employment discrimination.

A recent article in The New York Law Journal discussed that sites such as Facebook and MySpace could potentially lead to employment discrimination cases.

These various social networking sites are chock full of any type of information an employer may use to make a discriminatory employment decision. These sites can easily reveal a person's age, gender, race, religion and sexual orientation. Even photographs of an individual consuming alcohol while not at work, under New York Labor Law 201-d, cannot be used by an employer to affect an employment decision.

These new issues, due to the prevalence of the Internet and other technological innovations, further demonstrate how relevant and ever-evolving the field of employment discrimination law is.

Employment law issues can arise from seemingly innocuous events. In a recent complaint, Smith v. Thomas and the City of Poplar Bluff, a library assistant alleged that the Poplar Bluff Public Library intentionally discriminated against her based on her religion.

The librarian had refused to participate in the library’s “Harry Potter Night,” which promoted one of J.K. Rowling’s “Harry Potter” novels, on the grounds that the promotion violated her sincerely held religious beliefs against the worship of the occult. She alleges that as a result, the defendant retaliated against her by reducing her hours and reassigning her to physically demanding tasks beyond the scope of her regular job description.

On April 1, 2008, the U.S. Court of Appeals for the Second Circuit ruled for the first time that an employer can be held liable for race discrimination based on an employee’s association with a person of another race. The court reversed the District Court’s decision to grant Defendant Iona College’s motion for summary judgment, rejecting the District Court’s restrictive view of Title VII race discrimination claims as applying only to an individual “because of such individual’s race.” Instead, the court found that where the plaintiff-employee, Craig Holcomb, a white man, was allegedly terminated and discriminated against because of his marriage to an African-American woman, “the employee suffers discrimination because of the employee’s own race.”

Holcomb, an assistant basketball coach at Iona College, alleged that he was terminated based on his supervisors’ discriminatory animus against his interracial marriage. The court found that the plaintiff had adduced enough evidence, through the comments and conduct of his supervisors, to show that his termination was based, at least in part, on improper racial motives. The court noted that even though Iona College had proffered valid reasons for Holcomb’s termination, namely the poor performance of Iona’s basketball team, the employee need only show that “the prohibited factor was at least one of the ‘motivating’ factors” in his termination.

This ruling may also open the door to other claims of employment discrimination based on association, such as religious discrimination based on an employees association with a person of a certain religion.