Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

Late August means it's time for the Iowa State Fair, one of the Top 100 Events in North America, home of corn dogs, the butter cow, and over one million visitors.  One of the interesting side-shows at this year's fair involved the Des Moines Regional Transit Authority (DART), an atheist organization, and a Christian bus driver.  It all started when an organization billing itself as the "Iowa Atheists and Freethinkers" purchased advertising space on the side of buses to coincide with the Fair.  DART's advertising manager agreed to run the ads, but was later overruled by the Board of Directors, which was concerned about offending bus riders.   Even the Governor weighed in on the controversy.  DART changed its mind and decided to run the ads after the Iowa Civil Liberties Union promised to investigate whether the atheists' free speech rights had been violated.

Unfortunately for DART, the controversy was far from over.  When the ads were published, one of DART's Christian bus drivers refused to drive the bus assigned to her because it contained the atheists' ad, which offended her because of her religious beliefs.   DART promptly suspended the driver, and then gave her three options: 1) returning to her former position with the understanding that a refusal to drive whatever bus was assigned would result in termination; 2) transferring to a para-transit route, where buses do not contain as much advertising; 3) resigning her position.

As of this publication, there is no word on what the driver decided to do.   Regardless, this episode contains a lesson for Iowa employers: be careful when imposing discipline when it involves an employee's exercise of religion.   Employees have the right to a reasonable accommodation for their sincerely held religious beliefs.  That does not mean an employer is obligated to do whatever the employee demands, but managers should listen to the employee's concern, and make a genuine inquiry whether there is some reasonable accommodation that will permit the employee to practice her religion while at the same time resulting in minimal disruption of the business.  For more on this subject, see this post from a couple of weeks ago: Update: Religious Discrimination.

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A post in today's HR Daily Advisor poses the question whether an employer is better or worse off using internet social networking sites as a means of performing background checks on  prospective employees.    On one hand, the internet is an inexpensive and easy way of getting information about a person's background and character.  Given the risks of terminating employees, most companies would rather have such information before a person is hired in the first place.   Moreover, in the event the employee commits some act leading to a lawsuit against the company, the failure to utilize these easy sources of information could subject an employer to a claim of negligent hire.

On the other hand, there may be information about a person on the internet that is either not directly related to the job or is impermissible to consider when making a hiring decision.  An employer might learn information about the employee's age, religion, union affiliation, or other activity that cannot be considered.   Moreover, there is no guarantee the information on the internet is completely accurate. Finally, the employee's right to privacy should be considered.

Whether the internet is used in the first place should be based upon the importance of having the information about the prospective employee.   Once the decision has been made, the employer should be cautious to rely only upon permissible information, and utilize sources where there is not a high expectation of privacy. 

For other posts on the impact of social networking on employers, see the following:

Linked In and Lawsuits-Should You Be Concerned?

Text Harassment?

Employers and Social Networking--Contained in Mid Summer Employment Law Update

Are Social NetWorking Sites Private?

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Two recent cases out of the U.S. Court of Appeals for the Eighth Circuit (which includes Iowa, Nebraska, Minnesota, Missouri, Arkansas, and North and South Dakota) serve as important reminders that employers should be alert to potential claims of religious discrimination and religion based harassment occurring in their work places:

• On July 31, the EEOC announced that AT&T, Inc. paid $1.3 million to satisfy a judgment entered in favor of two employees who were terminated after they took time off work to attend an annual conference of Jehovah's Witnesses.    The judgment was entered after a jury trial in the U.S. District Court for the Eastern District of Arkansas, and was affirmed by the Eighth Circuit Court of Appeals. 

• On July 29, a panel of Eighth Circuit reversed a trial judge's ruling granting summary judgment to an employer in a religious harassment case.   The plaintiff in Winspear v. Community Development, Inc., alleged he was subject to a religiously based hostile work environment by his boss' wife, who also worked for the company as a receptionist.   The Court of Appeals held the trial judge failed to consider whether a hostile work environment was created by the wife's repeated comments that plaintiff's deceased brother was suffering in Hell, and that plaintiff needed to find God to avoid the same fate.   

Claims based upon an employee's religion are not as common as those based upon other protected characteristics, such as sex, race, age, or disability.  Nonetheless, EEOC statistics reflect an increasing number of charges alleging religious discrimination or harassment.  In response to this trend, the EEOC published the following documents to assist employers in evaluating their rights and obligations under Title VII's prohibition against discrimination on the basis of religion:

•  Questions and Answers: Religious Discrimination in the Workplace provides helpful information in an easy to follow question and answer format. 
•  Best Practices for Eradicating Religious Discrimination in the Workplace identifies practices for both employers and employees to reduce the probability of religious based conflict and charges of religious discrimination.  The "Best Practices" document discusses issues relating to hiring and discipline of employees without regard to religion, reasonable accommodation of employee religious practices, avoiding religion based harassment, and retaliation. 
• Questions and Answers about Employer Responsibilities Concerning the Employment of Muslims, Arabs, South Asians, and Sikhs was published to address the increasing number of claims since September 11, 2001 by employees who are or are perceived to fall within one of these groups.

Some important takeaways from these documents include:

• Employers should have a well publicized and consistently applied anti-harassment policy that specifically includes harassment on the basis of religion or religious practice, including a mechanism for making complaints, allowing for investigations, and preventing retaliation;

• Employers should permit non-disruptive and non-harassing religious expression among employees to the same extent other types of personal expression is allowed;

• Supervisors should be permitted to engage in religious expression, but they should avoid expressing themselves in a manner that a subordinate could perceive as coercive, even if not intended that way;

• Polices and practices concerning the reasonable accommodation of employee's religious practices should be developed and communicated to employees.  Such practices might cover scheduling, breaks for prayer, dress, and grooming; 

• When considering whether an employee's requested accommodation causes undue hardship, or whether a particular religious expression is disruptive, employers should gauge the actual hardship or disruption that will result, and not speculate about what may occur.   Managers should be flexible in exploring alternatives that will permit the employee's religious practice while also allowing the employer to operate its business.

Image: Joan of Arc (from Flickr)

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