Articles and News
GET THIS WRONG AND GET SUED: RELIGION’S PLACE IN A BETTER JEWELRY STORE | April 18, 2012 (1 comment)
Merrick, NY--Your star salesperson can close even the most stubborn of customers and she up-sells almost every transaction. But in the break room, she tries just as hard to convince other employees to join her church.
Are her actions putting you at risk for a lawsuit?
They could be. While federal law prohibits religious discrimination in hiring or promotion, it doesn’t prohibit employees from expressing religious beliefs or trying to convert colleagues. Nor does it prohibit a private business owner from posting religious verses or even starting each business day with a group prayer. Most of the time, as this article in the Raleigh, NC News & Observer says, it’s not a problem—until there’s a problem.
Not surprisingly, problems usually come in the form of an employee who doesn’t know when enough is enough, says the article. It’s one thing to respectfully share your own beliefs, as long as the employee backs off when the message isn’t welcome. But some folks either don’t pick up on the “go away” cue—or worse, they see it as a challenge to try harder; i.e., salesmanship begins when the customer says “no.”
But when it comes to religious advances, just like physical advances, “no” means “no,” and if a manager or store owner is informed by an employee that a colleague is making him uncomfortable, the manager must put an immediate stop to it or be held just as liable as if it were a sexual harassment situation. So in the case of our hypothetical employee, if her proselytizing offends another employee who complains to you, you are at risk if you don’t act quickly and decisively.
“What lawsuits come from are two hard-headed people,” says Bruce Clarke, J.D., CEO of CAI Inc. and the author of the News & Observer article. CAI is a human resources information, advice, and training organization based in Raleigh and Greensboro, NC.
A pretty typical scenario, says Clarke, is that the employer acts with good intent, either hosting or allowing religious meetings in the workplace, perhaps even hiring a corporate chaplain service for employees. In a workplace with more than about 30 people, Clarke says employees fall into three categories: 1) those who appreciate the religious aspect, 2) those who are neutral, and 3) those who’d rather not have to deal with it—which, he says, on average amounts to about 20% of employees.
“Will one of group three become hard-headed one day [and sue]? Probably,” he told The Centurion.
Bill Jones, president of Sissy’s Log Cabin, is willing to risk being sued. Weekly devotional meetings at the firm’s three Arkansas stores are mandatory for employees, just like a sales meeting would be.
“We’re Christians, and we believe that if you have a strong conviction, stick to it,” he says firmly.
When Jones mentioned the Log Cabin’s weekly devotionals during a Centurion Show retailer panel discussion in 2011, it caused quite a reaction among the audience, and he says that one single comment has drawn more interest than anything else he’s ever said [in the industry].
“People always ask, ‘aren’t you afraid of getting sued?’ but I figure there’s always something that someone can try to sue you for, so no, I’m not. We stick to our beliefs,” he says.
The devotionals are more focused on God than Jesus on the cross, says Jones. “It’s not like being in church, it’s more about the spiritual side of life.”
Employees themselves usually give most of the devotionals, and many don’t even include Bible readings. Instead, they focus on spiritual subjects like ethics and values, gratitude, love, and the important things in life, he says.
So far, says Jones, they’ve never had an employee object to the devotionals, or to mandatory attendance at them. Sissy’s Log Cabin has had non-Christian employees, he says, and they still participate. “It’s not about trying to cram beliefs down each other’s throats, or asking someone to compromise his or her faith. It’s about love and acceptance, and feeling like a family. You can be Jewish, Christian, Muslim, whatever, but I think every day is better if you commune with God,” he says. But if an employee wants to be excused from devotional meetings, the answer just might be no. “What else might they want to be excused from because they don’t like it?” asks Jones hypothetically.
Should an employer bring up the prayer meetings in an interview with prospective candidates?
“As long as it’s done in a purely informational manner, and not as a go/no-go condition of employment, it’s fine,” Clarke told The Centurion.
Your clock or God’s clock? The other most common religion/workplace conflict is asking for time off for religious reasons, which obviously can be a significant issue in a retail business where weekends are the store’s busiest time. Federal law requires employers with 15 or more employees to support an employee’s need for religious time off, but asking about religion pre-hire is illegal.
Clarke says the way to phrase the question during the hiring process is like this: “Our hours are 10-9 Monday through Saturday and noon to 5 on Sunday. Someone in your role may be asked to work any of these shifts. Is there anything that would prevent you from doing so?”
But here’s the catch, says Clarke: if they say yes, I need every Saturday (or Friday or Sunday) off, you still can’t use the answer as a reason not to hire them. Even if they say in the interview that they can work any and all shifts but change their mind after being hired, the employer has to try to accommodate the request.
Sound unfair to you? Not really, says Clarke. All it does is change the time of the accommodation—and it can actually prevent you from being accused of discrimination. But, he says, just because they want it doesn’t mean they get it.
The law requires an employer to try to make the accommodation. But if an accommodation can’t be made, there are times when it is acceptable to let the employee go—or not hire them in the first place.
Say an employee requests off every Saturday for religious reasons. Fine, you say, but then you will need to work every Sunday because other employees also would like to go to church. The employee balks, saying Sunday is the only time they get to spend with their family. Since you’ve tried to reasonably accommodate their request, you’re covered, and if the employee doesn’t like the terms, too bad.
The key, says Clarke, lies not in a single employee’s request, but in how you’ve handled other similar requests. For example, if another employee takes off a lot of time for health or child-care reasons, the same leeway has to be given for religious reasons. But if all employees who take off too much time—for any reason—are terminated, then nobody can claim discrimination.
Be careful how you hire! In 2007, the now-defunct Whitehall Jewelers was sued for discrimination when a former sales associate was allegedly told she would not be re-hired because she’d begun to wear a headscarf in accordance with her Muslim belief. Though she had a proven sales track record from her earlier (pre-scarf) employment with the company and was contacted by her former manager to apply, she was told she couldn’t come back wearing it.
Most employers are smart enough not to make such a gaffe. But what about just hiring a “better qualified” candidate, who, incidentally, has an uncovered head?
If you are investigated by the EEOC or served with a lawsuit, you will have to show concrete reasons why the bareheaded candidate is better qualified. Clarke says the vague “a better fit for our culture” is a valid defense, but you must be able to articulate why and it can’t be because of the scarf. It can be something like a personality trait that you have had experience with in previous hires, but it can’t be because you think your customers won’t like dealing with a Muslim salesperson.
Finally, don’t assume you’re exempt from these laws if you have fewer than 15 employees, says Clarke. You’re exempt from federal law, but state laws vary and some may have lower thresholds. Check with your state’s employment commission or ask a qualified attorney, he suggests.