January Legal Roundup: Can a Religious Object Be a 'Dangerous Weapon'

Here’s the latest on some employment-related cases that have gone before the courts:

Religion Discrimination | Sex Discrimination | Disability Discrimination | Age and National-Origin Discrimination | Race Discrimination | Uniformed Services Employment and Reemployment Rights Act

Religion Discrimination

Homeland security should have accommodated three-inch “sword blade” for Sikh agent.

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An IRS agent converted to the Sikh religion and began wearing faith-based articles including a short, curved sword called a kirpan. She was informed that this violated the security provisions for federal buildings, prohibiting any blade over 2.5 inches. She offered to wear a three-inch blunted blade, and the Sikh Coalition verified that any shorter blade was not allowable as a valid kirpan.

The agent insisted on the need to wear her religious symbol and was fired for inability to be admitted to the building where she worked. She sued the IRS and the Homeland Security Administration under both Title VII and the Religious Freedom Restoration Act (RFRA).

The Title VII case was dismissed because it generally covers only the employer as a defendant. The employer, the IRS, did not make or enforce the building security decisions. The NSA made the decisions but was not her employer. However, the NSA was covered by RFRA. The government is required to accommodate religious issues unless there is a “compelling interest” to do otherwise.

The court found that the NSA’s categorizing a three-inch blunted Kirpan as a “dangerous weapon” was unreasonable, since it allowed 2.5-inch fully sharpened knives of other sorts. Further, other federal buildings had made accommodations for longer kirpans, and RFRA accommodation guidelines require individual assessment of actual dangers in making exceptions for items that might otherwise be on the “dangerous weapons” list.

Tagore v. United States of America (5th Cir., 2013)

Saleswoman harmed by company owner’s religious principles.

A Catholic was the only female in the sales force of a company owned by a member of the Protestant Reformed Church. Most of the other salesmen were also members of the owner’s church. The saleswoman was fired for low sales. She sued under Title VII and Michigan’s EEO law for sex and religion discrimination.

The court found in her favor. The evidence showed that all salespeople had a slump when the economy tanked. However, the owner denied the saleswoman the chance to develop accounts in other areas, stating that under his religion women should stay home and care for their families, and overnight travel out of the immediate area would violate this roleshe should not be “doing a man’s job.” Men, though, were allowed to expand their territories at will. If she had an out-of-the-area prospect, it was assigned to a man for follow-up. New cold-call account opportunities were also assigned to other salesmen who were members of the owner’s church; he told the saleswoman that he could not trust her as much since she was of a different religion than him and the others. T

he court found ample evidence that the company denied the saleswoman a fair chance to make sales, while enhancing the chances of the salesmen, based on gender and religion.

Zsenyuk v. Kamps, Inc. (E.D. Mich., 2013)

Sex Discrimination

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Shaking dirty hands was valid job requirement for salesperson.

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All sales associates at a furniture store were required to greet customers with a specific greeting and a hand shake. One refused to shake hands, stating that customers’ hands could be dirty, and she refused to endanger her unborn child by shaking multiple hands. The company had available hand sanitizer and stated that no one was expected to shake with a customer who had obvious signs of cold or other illness, or real dirtiness. The associate still refused and was fired.

She filed a Title VII pregnancy-discrimination case. The court dismissed it. The Pregnancy Discrimination Act has no reasonable-accommodation requirement. It just prohibits treating the pregnant employee differently than others. Since all sales associates were required to shake customers’ hands, there was no different treatment. So although the plaintiff’s concerns may have been sincereand even had a health-based foundationshe was not treated discriminatorily.

Lewis v. Aaron’s Sales & Lease Ownership, Inc. (M.D. Fla., 2013)

School superintendent’s assistant has harassment and retaliation case.

A school-board attorney made some vaguely sexual remarks to a female elementary-school principal. When he was appointed Superintendent of Schools, he promoted her to Assistant Superintendent, working out of the same office. He engaged in a series of very overt sexual comments, texts and propositions. She objected. His behavior culminated in a sexually overt and profane email about her accompanying him on a business trip. After a final attempt at requesting a transfer failed, she decided to report him to a member of the school board.

The next day, the Superintendent transferred her to a new position in an office with no heating, no air conditioning, no phone and no office supplies. He subsequently reduced her pay by nearly $15,000, before she was finally demoted back to principal. She sued.

The court denied summary judgment to the school district, finding no logical explanation for the actions except harassment and retaliation.

Johnson v. Scott County School Board (W.D. Va., 2013)

Disability Discrimination

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Intentional scent harassment.

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A county-jail dental assistant had severe reactions to scents. She requested accommodation of having air fresheners and sprays removed from break areas and restrooms. The sheriff’s office took no action.

Then other employees, allegedly including the dentist she worked for, began planting cotton balls and paper towels soaked with strong scents and strong dental medications around her work area and near her coat and purse. The dentist told her she was “psycho” when she complained about the scents.

The dental assistant suffered severe facial swelling, breathing difficulties, vision impairments and increased blood pressure due to the strong scents, and missed work. In spite of repeated complaints about the ongoing problems and the planted scents, the sheriff’s office failed to even investigate.

The court found ample evidence for an ADA case.

Mitter v. County of DuPage (N.C. Ill., 2013)

Age and National-Origin Discrimination

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Hotel employees validly fired for extortion of gay waiter.

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Two 51-year-old hotel workers, one Filipino and one native Hawaiian, were fired for misconduct. They filed age and Title VII national-origin cases.

The court found that the hotel had a valid nondiscriminatory basis for the discharges. Other workers had reported the two were harassing a hotel waiter due to his homosexuality. Investigation showed evidence that they demanded $2 from him each time he requested a tray of drinks or needed restaurant tables set up. They punched him if he did not pay. They were heard threatening to choke the waiter if he did not open his wallet for them.

When called in for questioning, the two claimed that the waiter had been sexually harassing them. After the termination, both were replaced by people younger and of different national origins than them. The court found no evidence of any sexual harassment by the waiter.

Further, the two fired employees failed to use the company’s harassment policy to report any harassment until they were the subject of a disciplinary investigation. Their claim lacked factual evidence and credibility. There was no showing of pretext in the discharge, and no evidence anyone younger or of a different origin ever did similar acts without being discharged.

The case was dismissed.

Freitas v. Kyo-ya Hotels & Resorts (D. Haw., 2013)

Race Discrimination and Retaliation

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Permanent assignment to midnight shift.

A police department’s only African-American officer filed an EEOC complaint regarding denial of promotions. He was then promoted to Sergeant and promptly assigned to the midnight shift, where he remained year after year. In spite of repeated attempts to move to “any other supervisory assignment,” he was consistently ignored or passed over. He then filed a race and retaliation case under Title VII and 42 U.S.C. 1983.

The court found sufficient evidence of retaliation. The midnight shift had such restricted duties that its sergeant in reality had no authority and no supervisory position; it significantly diminished responsibility and career growth. The evidence supported the claim that he had been permanently sidetracked to the night shift, with intent to keep him there, in retaliation for having made the original EEO complaint.

Lavalais v. Village of Melrose Park (7th Cir., 2013)

Uniformed Services Employment and Reemployment Rights Act

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A reminder to keep those on active duty in mind and hold promotions for when they return.

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USERRA guarantees that upon return from active duty, employees must be restored to the positions they would have had but for the time away. This includes promotions or upgrades that became available.

In Rivera-Melndez v. Pfizer Pharmaceuticals, LLC (1st Cir., 2013), the court ruled that the company violated USERRA by not providing reinstatement to a promotion which came open and the employee was not notified of, but he had a “reasonable chance” of being selected for had he applied.

This case does not mean active-duty employees must be guaranteed any promotion that comes available. Rather, it seems to mean that they must be given reasonable notice of all opportunities, a reasonable time to apply (considering their absence, overseas placement and the difficulty of meeting short “posting” deadlines). Then if they are chosen, the position must be available for them upon return (perhaps filled by a temporary or acting employee until that time).

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached atrgregg@boardmanclark.com.

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