Labor and Employment Update - Summer 2005

ASSET OR LIABILITY: EMPLOYER’S STRUGGLE TO BALANCE RELIGION IN THE WORKPLACE

Religious observance or practice by employees and an accompanying request for accommodation is not a new legal issue for many employers. Yet, as employees profess faith, religious diversity increases and Congress considers heightened protection for religion in the workplace, many employers are struggling to find the proper balance between respecting their employee’s religious convictions and protecting the company’s interests (e.g., productivity, reliability and efficiency).

Title VII of the Civil Rights Act of 1964 requires employers to provide a reasonable accommodation for the religious observance or practice of employees where such accommodation does not cause an undue burden on the employer. Under Title VII, the term “religion” includes all aspects of sincerely held religious beliefs, atheists included, and the protection offered covers all aspects of employment. Title VII covers employers with 15 or more employees. While the employment law statutes enacted in 49 states generally mirror the Title VII protections, they often apply to employers with fewer employees.

Generally, it is the employee’s duty to notify his or her employer of a conflict between his or her religious practices and some employment requirement. After receiving notice of the conflict, it becomes the employer’s duty to work with the employee to determine a reasonable accommodation to resolve the conflict. Any accom-modation that removes the conflict and allows the employee to practice his or her religion is sufficient, even where an alternative accommodation was available and preferred by the employee.

Common accommodation requests include requests for time off or flexible scheduling to observe a religious holiday, requests to alter certain workplace policies or procedures, such as dress code or grooming, requests for job reassignment or transfer and requests not to work on Saturday or Sunday.

It should be noted, however, that an employee’s right to religious accommodation is not absolute. In TWA v. Hardison, the United States Supreme Court limited the employer’s obligations under Title VII to accommodate its employees’ religious practices at work by holding that the employer’s legal duty encompassed only accommodations that do not cause more than a “de minimus” cost to the employer or imposition on co-workers. A 2004 survey of Title VII religious accommodation cases that were litigated and decided after Hardison shows that employees have won about one-third of their litigated claims for scheduling changes for observance of religious holidays, nearly one-half of claims for having a beard or hairstyle for religious reasons, and roughly one-fourth of claims for wearing religious apparel.

Many Americans, both employers and employees, see a positive role for religion in the workplace. This is evidenced by the growing number of companies that encourage expressions of faith by providing time and space for such activities and by the number of employees who engage in religious expression in the workplace. However, employers wishing to join in and provide similar time and space for religious expression are faced with the challenge of accommodating numerous religious practices in an increasingly diverse workplace.

Additionally, increased religious expression in the workplace has resulted in a surge of bias reports regarding religion filed with the Equal Employment Opportunity Commission. The statistics released in March 2005 show that the number of complaints has climbed 27% over the last 5 years and by 40% in the past 10 years. Thus, employers must question whether encouraging religious expression by providing unsolicited accommodations creates a higher likelihood of liability than good-will.

Equally important, employers face the possibility of tougher Title VII standards as Congress continues to debate an amendment to the definition of “undue hardship.” Proposed legislation would replace the current “de minimus” standard with language that requires employers to make accommodations unless the accommodation requires “significant difficulty or expense.” The mere possibility of such a change may be enough to cause employers to save their time and money for the potential influx of newly required accommodations.

What Should an Employer Do

For now, employers should review their existing policies and procedures regarding religious expression, religious harassment and handling requests for religious accommodations to ensure compliance with federal, state and local law.  Remember, the question of whether an employer must provide a religious accommodation is determined on a case-by-case basis and as such there is no bright line rule for employers to follow. Also, an employer’s efforts to recognize and accommodate the religious beliefs of its workforce may do more than minimize potential liability, it may increase the productivity and efficiency of the workforce through increased job

MAY I LIST YOU AS A REFERENCE? – THE PITFALLS OF REFERRING FORMER EMPLOYEES

Have you ever provided a recommendation to a former employee’s prospective employer without checking the employee’s personnel file? Do you have policies in place that require all employment inquiries to be dealt with by your human resources staff? Are you subject to liability if someone from your company provides inaccurate information in an employment reference?

In a case of first impression, the Superior Court of New Jersey Appellate Division decided in Singer v. Beach Trading Co., Inc., that an employer can be held liable for the tort of negligent misrepresentation in providing inaccurate references for former employees. In this case, plaintiff Marsha Singer claimed that her former employer, Beach Trading, negligently misrepresented her employment history to her new employer, and caused her to be fired from her new job.

The Court held that an employer can be liable for negligent misrepresentation of a former employee’s work history if: (1) the party requesting the reference clearly identifies the nature of the inquiry; (2) the employer voluntarily decides to respond to the inquiry, and thereafter, unreasonably provides false or inaccurate information; (3) the person providing the inaccurate information is acting within the scope of his/her employment; (4) the recipient of the incorrect information relies on its accuracy to support an adverse employment action against the plaintiff; and (5) plaintiff suffers quantifiable damages proximately caused by the negligent misrepresentation.

Singer had applied for a position as customer service representative at HRK, in response to an employment posting. HRK believed that the professional experience Singer had listed on her resume over-qualified her for the position, and instead hired Singer as a customer service manager. According to Singer’s resume, she held the position of Vice President of Daily Operations at Beach Trading.

Before applying for employment at HRK, however, Singer oversaw the customer service department at Beach Trading, and worked with the customer service representatives at a desk [similar to HRK’s] until she left the company. When defendant Hizami began working at Beach Trading as a customer service representative, Singer was already working in the customer service department. According to testimony in the case, Hizami believed that Singer’s only duties at Beach Trading were those of a customer service representative.

Shortly after Singer joined HRK, her new employer became dissatisfied with Singer’s management skills, and questioned the truth of the representations in her resume. The owner of HRK, Henry Kasindorf, contacted Beach Trading’s customer service department in order to verify Singer’s work experience. But instead of calling Beach Trading’s human resources department as her new employer, Kasindorf contacted several customer service representatives at Beach Trading, and pretended to be a customer who merely wanted to praise Singer for good service. Kasindorf concealed his identity as Singer’s new employer from Hizami and other customer service representatives, and asked probing questions about Singer’s employment at Beach Trading.

In response to Kasindorf’s inquiries, Hizami and others told Kasindorf that while Singer was a Beach Trading employee, she served as a customer service representative. None of Beach Trading’s representatives confirmed that Singer was the Vice President of Daily Operations, or that she served in any capacity other than as a customer service representative. According to Singer, this information was incorrect, and constituted the basis for her negligent misrepresentation claim against Beach Trading.

Kasindorf testified in a deposition that he had decided to fire Singer before he called Beach Trading because her work performance was sub-standard. Contrarily, Singer contended that Kasindorf never mentioned that she was being terminated for poor performance. Singer alleged that  her termination by HRK was based exclusively on what Beach Trading’s customer service representatives had misrepresented to Kasindorf about her employment history. To support her allegation, Singer pointed to an internal HRK memo which indicated that Kasindorf terminated Singer’s employment with HRK because, “she had been hired under fraudulent terms and she misrepresented her previous position on her resume.”

Negligent misrepresentation is an incorrect statement, negligently made and justifiably relied on, which may be the basis for recovery of damages for economic loss sustained as a consequence of that reliance. In order to determine whether the statements were negligently made, it is necessary to decide whether Beach Trading owed Singer a duty to exercise reasonable care in communicating facts about her employment to prospective employers and, if so, whether its communication of false information was a breach of that duty.

New Jersey Courts have not determined whether an employer has an affirmative duty to respond to a reference inquiry. However, employers who choose to provide employment references may be held liable for negligent misrepresentation if their statements are misleading or incomplete.

Whatever the final outcome of this case may be, it is safe to say that companies could be held liable for statements made in employment references if the statements are determined to be false and are relied upon by the inquiring party. As was the case in Singer, such liability can be applied in situations where representatives give false information regarding a former employee’s position with the company. Companies should prohibit their representatives from answering such employment inquiries, no matter how innocuous, and require all such inquiries to be referred to their appropriate human resources staff.

CONSENSUAL AFFAIRS IN THE WORKPLACE CAN CREATE HOSTILE ENVIRONMENT FOR OTHER EMPLOYEES

In a landmark decision, the California Supreme Court ruled recently that an employee may pursue a claim for sexual harassment based on favoritism of other employees who engage in consensual sexual affairs with a supervisor.

Courts have previously found that favoritism of a single paramour is not sufficient to state a claim for a hostile work environment. However, the California court held — without providing very much definition other than to say one relationship is not sufficient — that where a perception has been created that advancement of women in an organization is dependent upon sexual favors rather than merit, male and female employees may pursue claims for sexual harassment. In doing so, the Court focused upon a policy statement from the Equal Employment Opportunity Commission (the “EEOC”).

The Court focused on the portions of the EEOC policy that provide where “favoritism based upon the granting of sexual favors is widespread in the workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII, regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors.” EEOC has reasoned that in those circumstances the “message” is implicitly conveyed that the managers view women as “sexual playthings,” thereby creating an atmosphere that is demeaning to women. The Court also explained that in these types of cases the managers “who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment.”

Based on this decision, organizations should consider a policy against consensual affairs between employees and their supervisor or anyone else who is in a position to recommend the employee for any sort of advancement. In order to protect against this type of hostile work environment claim, employers should attempt to separate, on a professional level, employees who are involved with one another.

The Labor and Employment Group represents and counsels employers in all aspects of the employment relationship, including EEO litigation, union avoidance, negotiations, arbitrations, executive compensation, corporate transactions, and non-competition/non-solicitation agreements, as well as compliance with federal and state laws such as the Family and Medical Leave Act, the Americans with Disabilities Act, the Health Insurance Portability and Accountability Act, the Fair Labor Standards Act and the Occupational Safety and Health Act. This document is published for the purpose of informing clients and friends of Klehr Harrison about developments in the areas of labor, employment and benefits, and should not be construed as providing legal advice on any specific matter. For more information about this publication or Klehr Harrison, contact Charles A. Ercole, of the Labor and Employment Group, at (215) 569-4282 or visit the firm’s Web site at www.klehr.com