Saturday, March 21, 1998

Laws try to catch up with conflicts of diverse workplaces, devout workers

By Jeff Diamant / Knight Ridder Newspapers

CHARLOTTE, N.C. -- What's sacred to some workers can concern their bosses and colleagues.

Some examples:

--A Gaston County, N.C., city manager orders a born-again, midlevel supervisor not to discuss religion on the job after employees complain.

--US Airways bars a Charlotte-based flight attendant from wearing a Muslim head scarf on the plane.

-- A Charlotte supermarket manager tells a worker not to wear a vest with a picture of Jesus Christ.

By one measure -- the number of Equal Employment Opportunity Commission complaints -- such workplace disputes about religious expression are increasing regionally and nationwide. Experts say it's because of more diversity, an increase in spirituality, and a general lack of clarity in workplace laws.

The disagreements lead to legal questions like: What can workers say about religion on the job? What can they wear? Are they entitled to religious holidays off?

The answers are often unclear and can involve the First Amendment, which requires both that government not prohibit free religious expression and that it not endorse a religion. Sometimes, doing one can seem to obstruct the other.

For example, in September 1996 two of Kirby Case's subordinates in the Gaston County town of Lowell heard him refer to the Bible on the job.

Case had told another worker the world is divided between Christians and non-Christians; that Christians are "set apart."

"I was talking about the responsibility God puts on his people," Case said. "We're set apart. We answer to a higher calling. We need to be at work on time and put in an honest day's work."

Still, the discussion bothered the two employees who overheard and worried that Case would discriminate against them because of religious differences. They complained to Case's supervisor, who ordered Case -- then the town's public works director -- not to discuss his religious views at work.

Case sued the town, contending in part of the suit that his supervisor violated his religious freedom. The case is pending.

While federal employees gained new leeway about religious expression last year, the religious rights of other American employees like Case remain largely governed by the Civil Rights Act of 1964.

The U.S. Supreme Court has interpreted the 1964 law to make bosses allow employees' religious requests unless they impose "undue hardships" on the company, such as high costs or staffing problems.

Still, the subjective meaning of "undue hardship" has led to uncertainty and difficulties for employees, legal authorities say.

The court partially clarified its stance in 1977 in deciding that a company didn't have to give a Seventh Day Adventist the day off on Saturdays for Sabbath. The court ruled that would be an undue hardship on his company because it required a shift change or forced other employees to work for him.

Still, the threshold for what constitutes an undue hardship is often unclear to workers and bosses, says Tom Berg, a professor at the Cumberland School of Law at Samford University in Birmingham, Ala.

To mixed reviews, the government is trying to make the boundaries clearer.

This year, Congress is expected to consider a Workplace Religious Freedom Act, with rules for all workers involving religious holidays and working hours. And last August, President Clinton implemented rules just for federal employees that spell out many rights for on-the-job religious expression.

Among other things, the new rules explicitly let federal employees wear religious medallions over clothes, have lunch prayer sessions and keep a Bible or Koran on their desks to read during breaks. They can discuss their faith and say why their religious views are best, as long as the co-worker they're talking with doesn't object.

People who favor these rules praise the government for protecting rights of religious expression.

"For many of our fellow citizens, religion isn't just another corner of their lives," Berg said. "It's their whole life. The fundamental guiding principal. You live it out at work as well as at home, or in church.

But others, like Marci Hamilton, say the new rules could lead to unconstitutional government endorsement of religion.

Hamilton, a professor at Benjamin L. Cardozo School of Law in New York, says some prayer sessions allowed under the rules could disturb employees who don't want to participate. She feels the same way about a rule permitting wreaths in the government offices during the holiday season.

"Let's say it's December, and you have an office where 50 percent of employees are Jewish, and 50 percent are Christian," said Hamilton. "If the supervisor is Christian as well and decorates his or her office, the Jews are inevitably going to feel left out."

Kirby Case and Rose Hamid might have faced less friction from bosses if the new guidelines for federal employees also covered them.

US Airways bosses didn't want Hamid, a Charlotte-based flight attendant who is Muslim, to wear a head scarf on the job. They wanted her to wear the same uniform as other attendants.

She sued in 1996, complaining that US Airways changed her job because of the scarf.

The case was settled last year. Hamid still gets paid as a flight attendant but doesn't fly anymore. She teaches others in the training department, where there are no uniforms.

"My hopes are that one day that policy will change," she said. "I do think it would be the right thing to do, but I realize it's a new thing and something they never heard of before."

The case stands as a prime example of a U.S. company struggling to deal with the country's increasing religious diversity, says Berg, of Cumberland Law School.

"If Christians had distinctive religious garb they had to wear, our society wouldn't view that as any problem," he said. "That practice would already be worked into our norms."

Hamilton, on the other hand, said the issue of dress can be more complicated at places such as restaurants or factories, because long beards or garments on food-service employees or assembly line workers can cause work-related hazards.

"Not only does the employer have to worry about products coming out right, but if he doesn't enforce that rule, he's going to have a workman's comp claim," she said.

On a practical level, religious rights at the workplace frequently depend on what bosses will permit.

That's because many workers and bosses don't know the rules, and because some workers, worried about job security, might not want to press cases against their companies, Berg said.

Last year, a boss told 30-year-old Charlotte supermarket worker Vance Kosloff not to wear a vest to work with a picture of Jesus Christ and the words "The way, the truth and the light."

He hasn't pressed the case. He still works there.

"At first, I wanted to strike back," said Kosloff. "But ... I didn't want to make a big fuss about it."

In many instances, bosses let workers take off on holidays or keep religious symbols at their desks because they think it's the right thing to do, he said.

"Different employers have different attitudes," Berg said. "Some employers accommodate. Many don't."

Q&A on rules governing religion in the workplace

In August, new rules governing religion in the workplace took effect for federal employees. With case scenarios, the rules spell out when federal employees can discuss religious views, what they can keep at their desks, and when they can pray.

Here are questions and answers about behavior mentioned in the guidelines:

Q. You think a colleague would enjoy attending your church. Can you invite him/her without it being considered harassment?

A. Yes. But if the colleague declines and asks you not to repeat the invitation, you should honor that request.

Q. You're a supervisor eating lunch with employees and table conversation turns to abortion. You feel strongly about the issue, for religious reasons. Can you discuss your feelings?

A. Yes, unless you take steps to coerce agreement with your view or act in ways that could reasonably be perceived as coercive.

Q. You think colleagues are morally bankrupt because they don't go to church, or because they do. You tell them this repeatedly. Is this harassment?

A. Yes. The guidelines say, "This typically will constitute religious harassment. A (federal) agency should not tolerate such conduct."

Q. At the end of mandatory weekly staff meetings, an employee leads a prayer in which almost all employees participate. The supervisor neither recognizes the prayer as an official function nor says that no one has to participate. Is this allowed?

A. No, "unless under all the circumstances a reasonable observer would conclude that the prayer was not officially endorsed."

Source: Federal guidelines for federal employees at work.

(c) 1998, The Charlotte Observer (Charlotte, N.C.). Distributed by Knight Ridder/Tribune Information Services.