New Jersey Employment Law Blog

Words have meanings, and sometimes imprecision in the use of a word can affect substantive legal rights.  In illustration of this principle, from Chicago comes the tale of Lord Osunfarian Xodus.  The case is Xodus v. Wackenhut. 

A Rastafarian who wears dreadlocks, Xodus applied for a job as a security guard with Wackenhut Corporation.  At his interview Xodus was told that Wackenhut has a grooming policy that would require him to cut his hair.  Xodus responded that cutting his hair was against his "belief," without specifying that the belief was religiously based.  As a result, he was not hired.

At trial the court found the person who conducted the interview for Wackenhut was not told that Xodus claimed a religious basis for his refusal to lose his dreadlocks.  Neither did the circumstances compel the conclusion that the interviewer should have known of the religious consideration.

In affirming the judgment of the trial court, the 7th Circuit Court of Appeals noted that "unlike race or sex, a person's religious belief is not always readily apparent."  Thus, Xodus had an obligation to bring his religious belief to Wackenhut's attention, and his failure to do so was fatal to his claim of religious discrimination.

So "belief" does not necessarily mean "religious belief."  If Xodus had used the adjective "religious" to modify "belief," the case probably would have had a different outcome.  As noted above, words have meanings, and we need to be mindful of that in our business dealings.

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The Third Circuit Court of Appeals recently found a Jewish Community Center to be a "religious organization" that was "exempted from compliance with the religious discrimination provisions of Title VII by Section 702 of the Civil Rights Act of 1964."  The case is Leboon v. Lancaster Jewish Community Center Association.  The issue of the status of the Lancaster Jewish Community Center arose in an employment discrimination lawsuit, brought by one of its employees, a Christian, who claimed that she was fired for her non-Jewish religious beliefs. 

The 3rd Circuit majority found that LJCC was an exempt religious organization, which required the dismissal of the plaintiff's complaint.  Judge Rendell, however, filed a cogent dissent concluding that the majority completely misread the intent of Congress.  Her analysis of the structure and funding mechanism of the LJCC suggests that it is not a "religious organization" within the meaning of the statute.  If she is right --- and at first glance it seems that there's a good chance she is --- this case may find its way to next year's Supreme Court docket.

For now, the practical effect of the Leboon case is a warning that religious organizations and their affiliates should seek counsel before hiring or firing employees of other faiths.

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The New Jersey courts recently revisited the question whether offensive language in the workplace violates the Law Against Discrimination.  In Taylor v. Metzger, the best-known example of such conduct, the Supreme Court held that a single instance of referring to an African-American worker as a "jungle bunny" created a hostile work environment. 

Now, in Cutler v. Dorn,  the Appellate Division has held that referring to a co-worker as "a dirty Jew" does not rise to the same level of severity as the "jungle bunny" comment, and does not necessarily give rise to a claim under the LAD.  The court's opinion, however, makes clear that the context in which the comment was made was critical to its decision.

The Haddonfield Police Department is relatively small and had been populated by an "in-group" of officers and some supervisors who delighted in playing pranks, teasing, ribbing and "breaking each others chops." Plaintiff participated to at least some extent. Humor files, containing offensive material, were well known and made available for perusal for those who wished to indulge, including plaintiff.

Against this backdrop, Shreve, a co-worker whom plaintiff did not particularly like, made the "dirty Jews" comment in plaintiff's presence. While the comment was undoubtedly disturbing, it was isolated, not specifically directed at plaintiff, and not made by a supervisor.

The plaintiff received a scheduled promotion and did not otherwise suffer any adverse employment action.

In considering all of the circumstances, the court held that "the comments and pranks were sporadic and not sufficiently severe or pervasive to create a hostile work environment under the LAD."  In fact, even though the jury had found for the plaintiff at trial, the court held that the trial judge should have granted defendants' motion to dismiss the complaint.

Employers should be wary about this holding.  It certainly does not give carte blanche permission to use derogatory language in the workplace.  All complaints received from employees about offensive conduct should continue to be taken seriously and investigated promptly.  The Cutler opinion notwithstanding, doing anything less is playing with fire.

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This is a tale from New York, not New Jersey, but Garden State employers should pay attention.

Bradley Baker was employed by Home Depot. He was a full-time employee who worked 40 hours per week and received full benefits. Through religious instruction that he obtained before getting married, he became more strictly observant of his Baptist faith. He learned that Sunday, the Sabbath, was to be strictly observed as a day of rest. Accordingly, he requested from Home Depot the accommodation that he not be scheduled to work on Sundays. A succession of Home Depot managers and schedulers granted him the accommodation by giving him Sundays off.

Eventually a new manager took over Baker's store, one who was not as sympathetic to Baker's beliefs as her predecessors. She had him scheduled to work on Sundays, but offered him a limited accommodation: he would only be assigned Sunday afternoon shifts so that he could attend church in the morning. Baker explained that his request was based not just on church attendance, but on Biblical mandate: on Sundays, he could not work and be true to his faith.

Neither Baker nor the manager bent; litigation ensued.

In Baker v. Home Depot, decided on April 19, 2006, the United States Court of Appeals for the Second Circuit upheld Baker's right to pursue his claim. It reversed the trial court's entry of summary judgment in favor of Home Depot and allowed the case to go to trial. The Second Circuit held that getting Sundays off based upon a sincere religious belief that work is prohibited on the Sabbath is an accommodation to which Baker may be entitled. It will now be up to a jury to decide whether Baker's stated belief is sincere and religiously grounded, and whether accommodating his belief will be an undue hardship for Home Depot.

We'll keep you posted if we hear anything more on this one.

Posted In Religious Discrimination , Title VII | Comments (0) | Permalink |