Bias Against Non-Religious Employee Is Reverse Religious Discrimination — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Bias Against Non-Religious Employee Is Reverse Religious Discrimination

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Can an employee have a valid discrimination claim if they don’t belong to a protected class?  When it comes to religious discrimination, the answer is yes.


Protected Class Requirement Doesn't Apply 

A former employee of a staffing agency filed a religious discrimination claim under Title VII and state law, alleging that she was denied a promotion because she did not belong to the same religious group as her supervisor and several co-workers.  She alleged that a less-qualified co-worker received the promotion because he was a member of the Fellowship of Friends.


The 9th Circuit Court of Appeals allowed the case to go to trial.  Typically, in order to bring a Title VII religious discrimination claim, the employee must show that he/she belongs to a protected class.  In this case, however, the employee did not claim that she was part of a protected class, i.e., that she adheres to a particular religion.  Rather, her claim was that "her lack of adherence to the religious beliefs promoted by the management…was the genesis of the discrimination."  (Noyes v. Kelly Services, Inc., 9th Cir., No. 04-17050, 2007) 


It cited a 10th Circuit decision, in which the court found that "the 'protected class' showing required in a traditional race or sex discrimination claim does not apply to this type of reverse religious discrimination claim because 'it is the religious beliefs of the employer, and the fact that [the employee] does not share them, that constitute the basis of the [religious discrimination] claim.'" (Shapolia v. Los Alamos National Laboratory, 10th Cir., 992 F.2d 1033, 1993)


Outcome of Noyes: A jury found that the employee's "lack of certain religious beliefs" was a "motivating factor" in the promotion decision and awarded her $6.5 million, including $5.9 million in punitive damages.  (Noyes v. Kelly Services, Inc., E.D.CA, No. 2:02-cv-2685, 2008)


Protected Class Requirement Doesn't Apply

Make sure your anti-discrimination training program specifies that, not only are managers prohibited from making an adverse employment decision based on an employee's adherence to religious beliefs that are different than the manager's, but that managers are also prohibited from making an adverse employment decision based on the employee's non-adherence to the manager's religious beliefs, regardless of whether the employee belongs to a different religious group.

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