A group of sociologists has recently published two studies on the effect of religious identifiers on hiring decisions. One study focused on employers in New England, and the other on employers in the American South. Both studies found that résumés and job applications referencing a specific religious affiliation are less likely to receive follow-up action from employers than those that do not mention religion at all. This highlights a difficult aspect of employment anti-discrimination law, which requires proof that an adverse employment action, like refusal to hire, was based on a protected class, like religion. The discrimination uncovered by these studies may not be intentional, and in fact the individuals making these decisions may not even be aware of the disparate treatment, but it still violates state and federal anti-discrimination law.
The researchers sent about 3,000 résumés to employers from “fictitious job applicants” who had recently graduated from college. They randomly modified the résumés “to indicate affiliation in one of seven religious groups or a control group,” typically by mentioning membership in a campus religious organization. The seven religious identifiers were atheist, Catholic, evangelical Christian, Jewish, pagan, Muslim, and a fictitious religious identity called “Wallonian.” Each employer received four résumés with comparable qualifications, which only differed in religious affiliation and minor details. The researchers set up email accounts and telephone numbers for the fictitious job applicants in order to track the responses from the employers.
In the New England study, resumes that mentioned religion received about 25 percent fewer responses from employers. Those that indicated affiliation with Muslim organizations had the lowest response rate, at one-third less than the control group. Applicants identified as atheist, Catholic, or pagan also received a significantly lower response rate. The Southern study had similar results, with evangelical Christians and Wallonians also receiving significantly fewer responses. Jewish applicants were the only ones who showed no significant disadvantage compared to the control group.
Religious hiring discrimination claims present the difficult problem of proving that a decision not to hire was based on religion. This usually requires evidence that an employer scrutinized an applicant’s religious background, such as through job interview questions. The U.S. Supreme Court is scheduled to hear arguments in a case alleging religious hiring discrimination, Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, in which a manager made statements indicating that the complainant’s religious attire was a factor. The issue before the court is whether she was obligated to request an accommodation for her religious practice.
Courts have developed more extensive caselaw for other types of religious discrimination claims. In order to establish religious discrimination in New York, for example, a plaintiff must demonstrate:
– A “bona fide religious belief conflicting with an employment requirement”;
– Notice to the employer of this belief; and
– Disciplinary action “for failure to comply with the conflicting employment requirement.” Stavis v. GFK Holding, Inc., 769 F.Supp.2d 330, 335 (S.D.N.Y. 2011), quoting Baker v. Home Depot, 445 F.3d 541 (2nd Cir. 2006).
New Jersey courts have applied the standard of proof used in sexual harassment cases to claims of a hostile work environment based on religious discrimination. A plaintiff must prove that the hostile conduct “would not have occurred but for the employee’s” religion, and that it was “severe or pervasive enough” to make a reasonable person conclude that “the conditions of employment are altered and the working environment is hostile or abusive.” Cutler v. Dorn, 955 A.2d 917, 924 (N.J. 2008), quoting Lehmann v. Toys R’ Us, 626 A.2d 445 (N.J. 1993).
If you need to speak to an employment discrimination attorney in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
Supreme Court Will Consider Case Alleging Religious Discrimination in Employer’s Dress Code, The New Jersey Employment Law Firm Blog, December 23, 2014
EEOC Alleges in Religious Discrimination Lawsuit that Employer Required Employees to Participate in Religious Activities, The New Jersey Employment Law Firm Blog, September 24, 2014
Plaintiff in Employment Discrimination Lawsuit Alleges that Employer Fired Him Because of Religion, The New Jersey Employment Law Firm Blog, July 8, 2014
Photo credit: By Original: S. Solberg J. (This file was derived from: Flag of Wallonia.svg) [CC0], via Wikimedia Commons.