By Wendy J. Baker
A law firm in Phoenix, Arizona, recently made headlines when a Midwestern firm hired away 22 of its attorneys. It wasn't the raid that made news, but rather the reaction of one of the Phoenix firm's remaining partners. When asked to move into an office vacated by one of the defectors, the partner decided to rid the office of an "evil feeling" by conducting what was described as a "spiritual cleansing."
Some members of the press caught wind of this and thought it was outrageous and hilarious. A few bloggers described the cleansing as an "exorcism." Two employees complained of religious discrimination.
Well, Eugene is not Phoenix. I dare say this type of space clearing, which mostly involves ringing bells and sprinkling lavender water, occurs daily in homes and offices in our unique community where "alternative" translates to "normal." In fact, a local publication includes several pages of ads for shamanic healers, past-life regression experts, soul awareness therapists, Toltec dream advisors and drumming circles - to mention only a few. We also have a wealth of Feng Shui consultants, Reiki practitioners, astrologists and hypnotherapists.
The question is: Which of these practices can legally be defined as religious, and why should you care?
If you think the question is silly, consider my clients who were sued after conducting an office clearing. They will assure you that this is no laughing matter. They terminated an employee for poor performance, but she claimed she was fired for refusing to participate in the office clearing. The case was settled before the court considered the threshold question of whether an office clearing is a religious act.
Federal and state laws prohibit employers from discriminating against individuals because of their religion. Employees cannot be forced to participate - or to not participate - in a religious activity as a condition of employment. Employers must reasonably accommodate employees' sincerely held religious beliefs.
Employers must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the employer. Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency.
Does this mean that an employer must accommodate an employee who wishes to do an office clearing? If so, does the employer expose itself to a lawsuit if an office clearing offends another employee? Is there a difference between a space clearing and a spiritual cleansing? Is anything that is spiritual automatically religious?
In response to a significant increase in religious discrimination charges in recent years, the U.S. Equal Employment Opportunity Commission adopted a compliance manual on religious discrimination. The manual covers topics such as defenses to religious bias claims, employers' obligations to accommodate religious beliefs absent undue hardship, and potential conflicts among employees regarding religion. In addition, the EEOC has published a "best practices" list on its Web site at http://eeoc.gov/laws/types/religion.cfm.
In attempting to provide some guidance on the issue, the EEOC may have broadened the scope of what constitutes religion. For example, the first paragraph on the web page states: "The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs." (Emphasis added.)
Wait! Do ethical and moral beliefs now fall under the definition of religion? Who exactly gets to define religion? One has to wonder if our courts soon will be considering the weighty issue of whether an employer must accommodate an employee who needs 15 minutes a day to contact a deceased relative through the use of a Ouija board.
Of course, I am exaggerating (maybe). Even so, it is a challenge to offer any practical advice to employers about how to stay out of trouble in this area. For the time being:
- Be ready to accommodate not only your employees' religious beliefs and practices, but also their ethical or moral beliefs.
- Expect to be sued if you, as the employer, express your religious, ethical or moral beliefs and an employee takes issue with it.
- If you decide to do an office clearing, aka spiritual cleansing, close your door, open a window and make sure no one catches the scent of lavender.
Wendy Baker is a licensed Oregon attorney who specializes in employer-side labor and employment matters, including day-to-day advice and defense of discrimination, retaliation and wage-and-hour claims. She can be reached at 541-359-4421 or toll free at 888-859-7871. Her office is located at 100 West 13th Avenue, Suite 200, in Eugene.
