Over the past two months, a Dunkin Donuts franchisee and Food Lion, a grocery store chain in Southeastern and Mid-Atlantic U.S., have been caught in the crosshairs of the Equal Employment Opportunity Commissions fight against improper religious discriminatory workplace practices.
In both cases the employers were charged by the EEOC for violating Title VII of the Civil Rights Act of 1964 when they decided to either refuse or eliminate employment because of the workers religious beliefs.
Most recently, Citi Brands, LLC, an Arden, N.C. franchisee of Dunkin Donuts, was charged in a September lawsuit by the EEOC for refusing to hire Darrell Littrell, a Seventh-day Adventist, because of his religious beliefs. Because Littrell was unable to work on his Sabbath, which falls between sunsets on Friday and Saturday, a Citi Brands plant manager revoked Littrells donut maker job offer when he couldnt start employment.
In the Food Lion case, the grocery store company was sued in August for refusing an accommodation to Victaurius L. Bailey, a Jehovahs Witness minister and elder. Bailey was fired in 2011 after shifting jobs to a meat cutter, which required him to work on Sundays. Food Lion has more 1,100 stores and 63,000 associates.
In each case, the enforcement action lists that a reasonable accommodation similar to the interactive process that is applicable in employer claims against the Americans with Disabilities Act should have been considered.
Sara H. Jodka, senior associate in Porter Wrights Columbus office explains that the uptick in the commissions Title VII and ADA claims is not a surprise. She notes that the reasonable accommodation idea, typically associated with ADA claims, is also now applicable to workplace charges such as religious discrimination under Title VII.
The problem were seeing with these types of accommodations is that its a leave accommodation, and that is particularly troubling because that puts a burden particularly on the employer to try to make that accommodation, Jodka says. Thats where these cases will probably come down to whether it would have been a reasonable accommodation for the employer to give them the type of leave or not.
In its strategic enforcement plan through 2016, the EEOC says it will seek to eliminate any barriers in recruitment and hiring, including discrimination against religious, racial and ethnic groups, as well as older workers, women, and people with disabilities. According to EEOC, of the nearly 94,000 total complaints reported in 2013, nearly 4,000 were religious claims. A decade earlier, there were only 2,500 complaints about workplace discrimination due to faith.
Joint employer snag
Recently, the National Labor Relations Board said it will attempt to combine McDonalds and its independent franchises as a joint employer. In the Dunkin Brands universe, the parent company of Dunkin Donuts and Baskin-Robbins, there are nearly 1,200 Dunkin Brands franchise owners and operators in the U.S. Its not immediately clear if the EEOC may also follow what the federal collective bargaining board has said previously. While it doesnt apply here so far, Jodka surmises it may pop up down the line as the EEOC has often followed the NLRBs lead.
Unable to discuss the EEOC cases, Michael J. Lotito, co-chair of Littler Mendelsons Workplace Policy Institute, highlights whats at stake with the NLRBs joint employer challenge. He says companies are at serious risk of having different joint employer standards being applied by disparate agencies within states having common and statutory law at odds with what the NLRB general counsel seems to be doing.
In the meantime, Jodka explains that employers in all industries and sizes can deal with employees religious needs easily and effectively; and all it takes is applying similar ADA policies to religious situations.
Employers are very comfortable that they have to provide accommodation for disabilities, but they have either lost sight, or are not cognizant, that there is also a reasonable accommodation requirement under Title VII, she says. And when someone does bring up a religious accommodation issue, they have to understand that they have a duty to basically stop and think, and they have the duty to engage in the same interactive dialogue that they would if this was a disability case.
She notes that applying the undue burden standard, similar to what is argued in ADA-type cases, to religious situations may not be as difficult as some employers think.
Case law has said that an employer will meet at an undue burden requirement if it can prove that to let this employee [have time] off and not hold them to the same schedule would have meant they needed to hire other people, Jodka states. [The employer] would have to pay expenses in the form of overtime for other employees, or it would have saddled employees with additional work.
Because litigation is pending, Food Lion, a company of Delhaize America, was unable to elaborate on further details at this time. Dunkin Brands did not respond to requests for comment.
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