ACC Focus on the New Jersey Chapter - April 2012 (Print All Articles)

President's Message

This has been a banner year for the NJCCA and it keeps getting better. I thought I would take this opportunity to mention some of the things that you can look forward to in the months ahead.

Final planning is underway for the NJCCA’s Spring Cocktail Reception to be held on Wednesday, May 16 at the Pleasantdale Chateau in West Orange.  This is one of NJCCA’s four “premier” annual events and the product of months of advance planning by our Executive Director and a team of dedicated volunteers.  The event will begin at 4:00 p.m. with two hours of complimentary (included in the registration fee) CLE programming. This year’s CLE programs are entitled “Spitballs, ‘Kick Me’ and Noogies...What Employers Can Do When Bullies Come to Work,” presented by Greenberg Traurig, and “Attorney-Client Privilege Issues for In-House Counsel,” presented by Lowenstein Sandler.  By attending these programs, you will obtain timely and informative continuing legal education including some of those all-important ethics credits. NJCCA is an accredited CLE provider for both New Jersey and New York, and credits for Pennsylvania may be applied for on an individual, as-needed basis.  Following the CLE, a cocktail reception will be held from 6:00 to 9:00 p.m.  The food, drink, music, and opportunities for conversation and networking at this reception are always without parallel.  We look forward to seeing you there.

As we have done in the past, this event will feature a worthy charitable cause.  This time, we are featuring Citizens Schools – New Jersey, an organization that partners with middle schools to expand the learning day.  Its goal is to promote student achievement, transform schools, and re-imagine education in New Jersey.

The May 25 deadline for submissions to the inaugural NJCCA Legal Fiction Writing Competition is just two months away!  We’ve received a number of submissions already and we look forward to receiving more.  Please consult the Rules and Regulations of the competition and Copyright License Agreement.  Remember, this competition is open to members, sponsors, and employees of members and sponsors, so if you have an assistant or other co-worker who wants to make a submission, they are welcome to do so even if they are not, themselves, members of the NJCCA.  We look forward to receiving your submissions.  Happy writing!

Some great programs are in the development stages for April, so stay tuned for final details. On April 17, the NJCCA’s Women’s Networking Committee will present “Managing Your Career, Playing the Game: Ambition and Politics at Work” in conjunction with Major Lindsey & Africa.  We are also delighted to be developing an ADR-oriented program with The Justice Marie L. Garibaldi Inn of Court for Alternative Dispute Resolution and the American Inns of Court. Additionally, the law firm of Constangy, Brooks & Smith has teamed up with the NJCCA’s Labor and Employment Committee to develop a program tentatively titled “Religious Accommodation Considerations in a Rapidly Changing World.” Details of these programs, including final dates, times, and locations, will be circulated under the separate cover.

Finally, anticipation is continuing to grow for the NJCCA’s Golf/Tennis/Spa Outing, scheduled for Thursday, June 21 at the Dolce Seaview Resort in Galloway, New Jersey. As the unofficial gateway to summer, this outing is always a highlight of our year.  Enjoy a round of golf, indulge your passion for tennis, luxuriate in the resort’s award-winning Elizabeth Arden spa, or, if you prefer, simply relax by the pool. We welcome you to bring your spouse, significant other, and children, as the case may be.  There will be something for everyone.  Plans are in the works for two hours of CLE programming to be held at the resort on the morning of the outing.  Please mark your calendars for this highly anticipated event!

Thank you once again for your continuing support of the NJCCA.  As the only professional association dedicated exclusively to promoting the interests of New Jersey’s in-house legal community, it is our pleasure to be of service to you.  Please feel free to call me at (201) 272-5308 or e-mail me at joseph.aronds@acc-njcca.org if you have any questions or if there is anything you would like to discuss.

Sincerely,

Joe Aronds,
President, NJCCA

Religious Accommodation in the Workplace: What Employers and Lawyers Need to Know

Robert H. Bernstein
"I can't work on Sunday." Employers’ obligations to accommodate faith-based dress, grooming standards and requests for time off, plus a comprehensive overview of federal religious discrimination laws.

 Introduction

This article provides an overview of federal religious discrimination laws and focuses on employers’ obligation to accommodate faith-based dress and grooming standards and requests for time off to observe religious holidays and the Sabbath.

Overview

Workplace religious discrimination claims are on the rise. Indeed, from 2000 to 2011, in the wake of 9/11, greater religious diversity nationwide,¹  a rapidly globalizing world following the “tech-boom,” and a growing culture of hypervigilant “political correctness,” religion-based Equal Employment Opportunity Commission (“EEOC”) claims nearly doubled, increasing to about five percent of all EEOC claims filed.²   During this same period, payouts for religion-based claims rose over 150 percent,³ and these statistics reflect only federal administrative charges; not lawsuits or state law claims.  Moreover, these statistics do not include claims for retaliation based on complaints or charges of religious discrimination or participation in an employment discrimination proceeding.⁴

As this article will address, within the universe of religious discrimination claims is a growing subset challenging employers’ obligation to accommodate employee religious practices and beliefs—including faith-based dress and grooming standards and requests for time off to observe religious holidays and the Sabbath.

As but one of many recent examples of this growing subset, in 2011, a federal judge in Oklahoma found that apparel company Abercrombie & Fitch violated Title VII when it refused to hire a Muslim teenager who wore a hijab, or headscarf, because her religious garb conflicted with the company’s “Look Policy.”  On summary judgment for the plaintiff, the court concluded that even though Abercrombie had a written and nationally-enforced “Look Policy”5 that did not allow head coverings, it failed to establish that accommodating the teen would cause the company to suffer undue hardship – a requirement once a plaintiff establishes a prima facie case.⁶   Notably, the Court found that Abercrombie failed to meet its burden (to show it would suffer an undue hardship) because it could not produce data showing the teen’s religious apparel would adversely affect its bottom line. Id.

Other recent cases include: a 2010 North Carolina claim by a Jehovah’s Witness alleging Belk Department Stores refused to accommodate her religious beliefs by requiring her to wear a Santa hat and apron during the Christmas holiday in contravention of her religious beliefs—the case settled for $55,000 7 ; a 2010 Pennsylvania lawsuit by a Rastafarian terminated by UPS after he refused to shave or cut his hair in accordance with company grooming policies⁸; and a 2007 Arizona case in which a federal jury awarded $288,000 in damages to a Muslim women fired four months after 9/11 for wearing a headscarf during Ramadan.⁹  These cases will be discussed in greater detail later in this article.

Due to the proliferation of religious discrimination claims, the law is evolving rapidly and often in challenging ways for employers. While employers maintain significant discretion when it comes to regulating their workplaces—from scheduling to physical appearance—in the wake of this spike in religion-based claims, employers would be prudent to revisit their policies for addressing conflictive employee religious practices, and their methods and procedures for determining whether an accommodation is needed. In other words, employers must carefully draft and enforce policies that allow them to meet their increasing legal obligations without undermining their control over the workplace or negatively affecting their bottom lines. If they do not, the results may well be costly—whether due to increased liability or litigation, increased overhead, a loss of control over the workplace, or diminished employee morale.

In analyzing this growing area of law, this article discusses the protections afforded by and obligations imposed under Title VII in the workplace, including: i) threshold issues, such as what claimed religious beliefs are actually protected under federal law; ii) the elements necessary to establish religious discrimination claims; and iii) an employer’s duty to accommodate religious beliefs absent a showing of undue hardship. Moreover, this article discusses some of the most commonly litigated religious accommodation issues over the past few years, including dress, grooming, and religious observance conflicts. Finally, this article offers practical guidance for implementing policies and procedures for recognizing—and avoiding—the most common religious discrimination claims.

Religious Discrimination: Threshold Issues

Who Is Required to Comply with Title VII?

Title VII of the Civil Rights Act of 1964 applies to “employers” who employ fifteen or more employees—each working day—for twenty or more calendar weeks in either the current year or the year preceding the one to be covered.¹⁰  Likewise, an “employer” is any “person,” which includes individuals, corporations, labor unions, partnerships, trusts, and governments affecting commerce.¹¹ 

What Is “Religion” and What “Beliefs” or “Practices” Are Protected?

Title VII prohibits covered employers from discriminating against any individual based on his or her “bona fide religious belief.”¹²  A “bona fide religious belief” is one based on a “sincerely held” “religion.” Pursuant to Title VII, “religion” includes “all aspects of religious observance and practice as well as belief.”¹³  Courts and the EEOC interpret “religion” to include traditional, well-known, and widely practiced religions as well as newly-formed, seemingly illogical, and unusual practices—with little or no weight given to the number or ardor of a particular “religion’s” followers.¹⁴  As the Supreme Court in Thomas v. Review Bd. of Indiana Employment Sec. Division observed:  “[I]t is not within the judicial function and judicial competence to inquire whether the petitioner or [another practitioner] … more correctly perceived the commands of their common faith.  Courts are not arbiters of scriptural interpretation.”  Thus, a practice followed by a single individual with no basis in traditional concepts of religion or the divine, such as the Church of Body Modification, may still qualify as a “religion” for purposes of Title VII, even if the follower does not prevail in her claim.¹⁵  In fact, atheists are protected under Title VII as courts have held they should have the freedom to believe or not believe.¹⁶

To be protected as a “bona fide religious belief,” the belief must not only be based on a “religion,” it must be “sincerely held.”¹⁷  An employee’s assertion that a belief is “sincerely held” is generally not disputed given the expansive interpretation afforded under Title VII. In fact, while purely secular beliefs, for instance, are not “bona fide,” courts may not extensively inquire into the validity or deep-rooted nature of one’s claimed beliefs. In other words, an employee’s assertion that he engages in a religious practice that conflicts with his job requirements and requires accommodation must be given great weight. Courts look to the sincerity of an employee’s belief, and do not analyze the merits of that belief.

Nevertheless, there is a limit—however slight—as to what “religious” activity is protected. For instance, a claim that consumption of cat food is a “personal religious creed” that provides deep spiritual comfort is considered a personal preference that is not protected by Title VII.¹⁸   Even so, such cases most often constitute outliers as opposed to a general rule, and, in effect, most every alleged “bona fide religious belief” is afforded protection under Title VII.¹⁹

In sum, though an alleged belief, religion or religious practice may seem absurd, shocking to the conscience, far-fetched or the byproduct of an over-active imagination, it should not be lightly discounted under Title VII. Employers seldom win discrimination claims on this ground and may well expose  themselves to needless litigation when they refuse even to consider or otherwise analyze the merits of an employee’s request. Employers would therefore be prudent to consider an employee’s request for accommodation, or apparent need for one, and engage in an interactive process with the employee to provide a reasonable accommodation.

Establishing a Prima Facie Case

An employee establishes a prima facie case of religious discrimination where: 1) he engages in a “bona fide” religious practice or observance that conflicts with his work responsibilities, 2) his employer is on notice of such practice and conflict; and 3) he is disciplined for practicing his conflicting beliefs. If an employee establishes the foregoing, the burden then shifts to the employer to show it offered a reasonable accommodation or that an accommodation would cause undue hardship.²⁰   In addition to the foregoing, employers should consider state law, which may impose additional burdens.

As discussed in Section II above, religious discrimination cases rarely hinge on whether a religious belief is “bona fide” as it is largely a subjective standard. Similarly, establishing “notice” and “discipline” are relatively low hurdles for employees. Regarding notice, a number of cases hold that notice is given where “an employer has enough information to make it aware a conflict exists between the individual’s religious practice or belief and a requirement for applying for or performing the job.”²¹  

In the 2011 Abercrombie case, the Northern District of Oklahoma found defendant Abercrombie was on sufficient “notice” of a Muslim teen’s religious belief that she must wear a hijab in public at all times because she wore the hijab to her job interview.²²  However, in reference to requests for time off to observe the Sabbath and religious holidays, employees generally bear the affirmative obligation of not only requesting time off, but also explicitly explaining that their request is for religious observance.²³

In the same vein, establishing an employee was “disciplined” merely involves a showing that the employee underwent a material change in a term, condition, or privilege of his employment.²⁴  As this article will now address, most religious discrimination litigation involves disputes over whether an accommodation is “reasonable” and whether it creates an “undue hardship.”

Reasonably Accommodate Without Undue Hardship

Once an employee establishes a prima facie case, the burden shifts to the employer to “reasonably accommodate” the religious conflict or establish that doing so creates an “undue hardship.”²⁵  Regrettably, Congress has yet to define either “reasonably accommodate” or “undue hardship.” The deluge of resultant case law demonstrates that the definitions are amorphous and vary drastically based on the particular facts of a case. While there are few bright line rules or universal principles, the considerable litigation interpreting these terms at least provides boundaries for avoiding the most commonly encountered discrimination claims. Therefore, this section provides a framework for analyzing the most common litigation on this front.²⁶ 

Accommodation of Sabbath Days and Religious Holidays

Employees often seek accommodation for religious holidays, Sabbath observance, prayer breaks, and other similar religious observances that cut into the time they are able to work.²⁷  In fact, the United States Supreme Court has addressed this very issue on two separate occasions. First, in the seminal 1977 case of Trans World Airlines v. Hardison,²⁸  the Supreme Court “defined the extent of an employer’s duty to accommodate [such occurrences] by interpreting the meaning of ‘undue hardship.’” In that case, an employee refused to work on Saturdays for religious reasons.²⁹  To accommodate the individual, the employer “would have had to transfer employees from other departments and suffer lost efficiency due to understaffing, violate the seniority provision of a collective bargaining agreement (and at the same time force undesirable shifts on the individual’s coworkers), or pay overtime wages to substitute workers on Saturdays.”³⁰  The Court determined that the expense of accommodating the employee was more than de minimis and hence constituted an undue hardship.³¹  Thus, it held that the employer acted lawfully in refusing the employee’s accommodation request and, in turn, in terminating him for excessive unexcused absences after he missed several Saturday shifts.³²

The Supreme Court provided further insight in the 1986 case of Ansonia Board of Education v. Philbrook,³³ There, a public school teacher alleged the school board’s three-day limit on paid leave for religious observance conflicted with his sincerely held religious beliefs, which required him to miss more than three days of work per year.³⁴   Under his contract with the school, the teacher was also entitled to three personal days per year.³⁵  However, pursuant to his contract, he could not use those days for any other leave covered by the contract, including religious observance.³⁶  The teacher sought either to use his personal days for religious observance, or to be given the right to personally pay a substitute and still receive full pay for any days he missed.³⁷  The school board refused both of the teacher’s proposed accommodations, requiring he use unpaid leave if he needed additional days off for religious observance.³⁸

The Supreme Court found the school board acted lawfully39  holding that even where an employer is required to provide an accommodation, it is under no duty to “accept, or prove the unreasonableness of, an employee’s suggested accommodation.”⁴⁰  Since this case, “the Supreme Court has been silent on the scope of the duty to accommodate religious practices under Title VII.”⁴¹   Even so, a number of decisions since Philbrook have further analyzed the bounds of an employer’s duty to accommodate, and when an accommodation crosses the threshold between a de minimis cost and an “undue hardship.” Almost every case “involving accommodation alternatives that work to the financial detriment of the employer (whether that detriment was direct or indirect)” has religiously—pun intended—followed the Supreme Court’s decision in Hardison.⁴²   In effect, “it has evolved into a per se approach [where] virtually all cost alternatives have been declared unduly harsh simply because a loss is involved.”⁴³

This determination is particularly notable in several recent cases.  First, in the recent case of Rumfola v. Total Petrochemical USA, Inc., 2012 WL 860405 (M.D. La. Mar. 13, 2012), a federal district court in Louisiana denied summary judgment for the employer – a chemical manufacturer – on the question of religious accommodation. In that case, the employee was a member of the Living Church of God, which prohibits work on their Sabbath, from sundown Friday until sundown Saturday. Id. at *1.  In April 2010, the employer implemented a short term “all hands on deck” policy to carry out a major overhaul, which required everyone to work over the weekend. Plaintiff asked to be switched to Friday morning, but the employer denied her request, and she was ultimately terminated for failing to show up at work on Saturday morning. Id. In denying employer’s motion for summary judgment, the court distinguished Trans World Airlines and determined that the employer could not demonstrate, as a matter of law, that reasonable accommodation was given, or that undue hardship would result. Id. at *6.

Similarly, in the unpublished 2011 case of Fouche v. New Jersey Transit Corp.,⁴⁴  the United States District Court in New Jersey granted summary judgment in favor of the defendant employer that terminated a Christian employee for refusing to work on the Sabbath.  The court held that even if the employee established a prima facie case, the defendant employer demonstrated it made a good-faith effort to reasonably accommodate the plaintiff when it offered to reclassify him from a full- to a part-time employee.⁴⁵   This case may be unique in that plaintiff belonged to a union that had a collective bargaining agreement with his employer.  In relevant part, it “contained a provision whereby bus drivers chose their work schedules based on seniority.”  The court, in line with Hardison and Philbrook, held that any additional accommodation would interfere with the defendant’s longstanding seniority system for selecting hours, and otherwise interfere with employee morale, thus crossing the de minimis threshold and constituting an “undue hardship.”⁴⁶

Whether an accommodation is required, is reasonable, or causes an undue hardship, is heavily fact-specific. While lower courts agree that employees have a duty to cooperate in securing accommodation for their religious needs, reschedule religious events, and lose or give up certain benefits, the parameters are still ill-defined.⁴⁷  Employers have been found to reasonably accommodate workers where they permit paid time off, but require employees to exhaust vacation or leave days.⁴⁸  Similarly, where providing paid leave causes undue hardship, employers have been found to reasonably accommodate workers where they permitted unpaid leave.⁴⁹  Numerous other arrangements—Including requiring employees to make up lost time, swap shifts, or accept demotion from salaried to hourly status—have been found “reasonable accommodations” under Title VII.⁵⁰  In contrast, it has been held that an “employer would not incur undue hardship in accommodating a Sabbatarian where the employer had a pool of roving absentee replacement workers at its disposal to fill in for absent employees,” and “that a defendant company had a duty to accommodate an employee who believed it was sinful to pay union dues, since the loss of one employee’s dues would not create an undue hardship.”⁵¹

In short, in the context of determining whether accommodating a request for time off for religious observance will cause undue hardship, courts typically look to whether such an accommodation will cause an economic burden, negatively impact other employees, violate another law, or undermine a collective bargaining agreement or seniority system.⁵²  As is clear from controlling Supreme Court precedent to the most recent cases analyzing the scope of Title VII in relation to religious observance, this burden for employers is relatively low. However, case law is still rife with controversies regarding whether the accommodation given in the first instance is “reasonable.” This is a highly fact-specific inquiry, and is best analyzed on a case-by- case basis.

Accommodation of Faith-Based Dress and Grooming Standards

Courts apply a similar analysis when evaluating claims pertaining to religious observance, dress, and grooming standards. Like other Title VII claims, after a plaintiff establishes a prima facie case, the burden shifts to the employer to show it provided a reasonable accommodation, or that doing so would cause an undue hardship. These terms are not mutually exclusive, and one cannot be analyzed without considering the other. As noted in the preceding section and pursuant to well-settled Supreme Court case law, an employer’s duty to accommodate is cut off at the moment it imposes an undue hardship on the employer.⁵³  Establishing an undue hardship, or an economic or non-economic cost to the employer that is more than de minimis, is only a slight burden.⁵⁴  Whether accommodating dress or grooming standards is “reasonable” or would cause an “undue hardship” often hinges on whether the accommodation creates a safety, security, or health risk. If an accommodation jeopardizes the safety, security or health of the individual employee, his co-workers or the public at large, it most often constitutes an undue hardship. In contrast, an accommodation that merely jeopardizes corporate image or arguably tarnishes the aesthetics of an operation is less likely so.

Safety, Security, or Health Risks

“[A] religious accommodation that creates a genuine safety or security risk can undoubtedly constitute an undue hardship.”⁵⁵  Traditionally, many cases under this umbrella arise in private manufacturing or public detention settings where religious apparel requirements often conflict with workplace safety protocols.

For Instance, in the 2010 case of Equal Employment Opportunity Commission v. GEO Group, Inc.,⁵⁶   the Third Circuit Court of Appeals held that an employer did not violate Title VII where it prohibited female prison workers from wearing kihmars.  While plaintiffs were able to establish a prima facie case, the private employer established that an accommodation would impose an undue hardship as:  “(1) kihmars, like hats, could be used to smuggle contraband into and around [the prison], (2) that kihmars can be used to conceal the identity of the wearer, which creates problems of misidentification, and (3) that kihmars could be used against a prison employee in an attack.”⁵⁷   While the headgear had never been used for such nefarious purposes in the past, the court reasoned that safety is a top priority for the protection of guards, inmates, and visitors, such that there should be no requirement of a showing of past transgressions.⁵⁸

Other recent cases include an early 2012 case in the Northern District of Mississippi, Finnie v. Lee County,—which relied on Webb and Geo Group Inc.  There, the Court determined that Title VII did not require a sheriff’s department to accommodate a Pentecostal employee’s desire to wear a skirt, instead of pants.⁵⁹  Considering much of the recent jurisprudence on this matter, the court reasoned: “[A]n employer cannot give preference to an employee because of his or her religion any more than it can discriminate against that employee for the same reason. It is axiomatic that preferential treatment involves discriminating against one in favor of another which, in the context of religion, is exactly the conduct proscribed by Title VII.”⁶⁰  Conversely, the Fifth Circuit Court of Appeals refused to extend this reasoning outside of the safety context, arguing that an elementary school’s grooming standard, which required students to wear their hair in buns, created an undue burden on a Native American student.⁶¹  Whether courts will follow the reasoning in Finnie, and whether other courts will begin creating more concrete rules of law on this matter remains to be seen.

Corporate Image: Hijabs, Santa Hats, and Religious Apparel

While many religious discrimination cases involving corporate dress codes arise in the manufacturing or public detention settings, a growing number involve clashes between religious apparel requirements and corporate image. In these cases, employers face the increasing burden of establishing undue hardship. For instance, in the aforementioned case of EEOC v. Abercrombie, defendant Abercrombie was sued after it refused to hire a Muslim teen who wore a hijab in contravention of its well-established “Look Policy.”⁶²  In that case, the plaintiff wore a hijab to her job interview at an Abercrombie Kids store in Oklahoma.  A District Manager determined that though the teen was otherwise a good fit for Abercrombie, her headscarf conflicted with the Company “Look Policy” such that she should not be hired.64  When the complainant learned of Abercrombie’s reasons for denying her employment, she filed a charge with the EEOC.⁶⁵

In ruling for the EEOC on summary judgment, the court found Abercrombie violated Title VII in refusing to hire or accommodate the teen without a showing of undue hardship.⁶⁶  In relevant part, the court did not believe Abercrombie presented evidence establishing its sales would suffer if a deviation from its “Look Policy” were allowed.  Further, it concluded that any such evidence would be undermined by the fact that Abercrombie, on eight or nine prior occasions, allowed females in other stores to wear religious headscarves and previously allowed deviations from the “Look Policy” for other independent reasons. Id. It is uncertain what the outcome would have been had Abercrombie been able to demonstrate it consistently enforced its “Look Policy.”

Accordingly, while the need to hire additional workers, pay overtime, undermine an established seniority system, infringe on co-workers’ duties or rights, or threaten security to cover a religious employee’s accommodation are generally regarded as imposing an undue hardship, minor “administrative” costs or harm to company aesthetic are seldom considered more than de minimis costs.⁶⁷  Further, as demonstrated by the Abercrombie case, employers should bear in mind that courts will look to how they responded to similar requests in the past. If analogous accommodations were previously permitted, an employer bears a greater burden in establishing the accommodation at issue is unfeasible.

Conclusion

In sum, religious discrimination claims are on the rise and likely to increase in number as our world grows more diverse and more technologically connected. A number of recent cases reflect this growing trend and a high percentage of claims pertaining to employers’ obligation to accommodate faith-based dress and grooming standards and requests for time off for observance of religious holidays and the Sabbath.

Robert H. Bernstein heads Constangy Brooks & Smith LLP’s Princeton, New Jersey office. For nearly 30 years, Mr. Bernstein has developed an extensive labor and employment practice, exclusively representing multinational and domestic corporations on both a regional and national basis, with an emphasis in employment litigation and counseling. He handles class and collective actions covering the full panoply of federal and state anti-discrimination and wage and hour laws.  Robert H. Bernstein would like to thank Falon M. Wrigley, an Associate at Constangy Brooks & Smith LLP, for her hard work and invaluable contribution to the article.

Footnotes:

1. See generally, Roger Bennett, et al., OMG! How Generation Y is Redefining Faith in the iPod Era, Reboot (2005), (discussing a recent Brookings Institute study showing 23 percent of working age adults ascribe to no religion, 26 percent are Protestant, 20 percent are Catholic, 2 percent are Jewish, 2 percent are Muslim, 2 percent are Mormon, 14 percent are “other” Christian and 7 percent are other, not Christian).
2. See EEOC Charge Statistics FY 1997 through FY 2011.
3. Id.
4. Id.
5. EEOC v. Abercrombie & Fitch Stores, Inc., 798 F. Supp. 2d 1272, 1287 (N.D. Okla. 2011).
6. Id.
7. EEOC v. Belk, Inc., No. 5:10-cv-00300 (E.D.N.C. July 29, 2010).
8. EEOC v. UPS Ground Freight, No. 1:08-cv-01806 (M.D. Pa. Order of Resolution filed Feb. 11, 2010); see also Press Release, U.S. Equal Employment Opportunity Commission, UPS Freight to Pay $46,000 to Settle EEOC Religious Discrimination Lawsuit, (Feb 17, 2010)
9. EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006, 1017 (D. Ariz. 2006).
10. 42 U.S.C. § 2000e(b)(2010).
11. 42 U.S.C. § 2000e(b).
12. 42 U.S.C. § 2000e-2(a)(1)
13. 42 U.S.C. § 2000e(j); 29 C.F.R. § 1605.1(1); see also United States v. Seeger, 380 U.S. 160, 166 (1970) (where the United States Supreme Court held that a religious belief is protected if it “is sincere and meaningfully occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.”).
14. 450 U.S. 707, 716 (1981)
15. Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 132 (1st Cir. 2004) (holding that for the purposes of Title VII analysis, the plaintiff had a “sincerely held” religious belief, but ultimately ruled for the employer, holding “Cloutier's insistence on a wholesale exemption from the no-facial-jewelry policy precludes Costco from using its managerial discretion to search for a reasonable accommodation.”);  but see Brown v. F.L. Roberts & Co., Inc., 896 N.E.2d 1279, 1286 (Mass. 2008) (refusing to extend Cloutier because Massachusetts’s state anti-discrimination statute had different requirements, and because the employer failed to engage in a dialogue regarding reasoanble accommodation).
16. Young v. Southwestern Sav. and Loan Ass’n, 509 F.2d 140, 142-43 (5th Cir. 1975).
17. Thomas, 450 U.S. at 62.
18. Brown v. Pena, 441 F. Supp. 1382, 1384 (S.D. Fla. 1977).
19. Kerri S. Reisdorff, Missouri Employment Discrimination, Religious Discrimination, Missouri Bar Association CLE (2008) (discussing Brown, 441 F. Supp. at 1384).
20. 42 U.S.C. § 2000e-2(a); see also Hardison, infra note 61.
21. Aercrombie, supra note 4 at 1285.
22. Id. at 1286.
23. See, e.g., Moaz v. Conoco Phillips, 2011 WL 3331397 (D.Colo. 2011) (granting summary judgment for the defendant upon finding that it did not unlawfully terminate the plaintiff after he requested two days off work for a religious holiday where his employer was unaware of the holiday and his written request made no reference to it); Thomas v. Croft, 2011 U.S. Dist. LEXIS 48442 (SD OH, May 4, 2011) (denying A Seventh Day Adventist plaintiff’s motion for summary judgment where he was disciplined after failing to perform work after sunset on Fridays in accord with his beliefs but did not put his superior on notice of those beliefs or his need for an accommodation).
24. Employment Coordinator, 5 Emp. Coord. Employment Practices § 4:14 (2011).
25. See Hardison, infra note 61; see also Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987) (once an employee establishes a prima facie case, the burden shifts to the employer to prove it cannot reasonably accommodate the employee without undue hardship); Turpen v. Missouri-Kansas-Texas R.R., 736 F.2d 1022, 1026 (5th Cir. 1984) (same).
26. Andrew M. Campbell, What Constitutes Employer’s Reasonable Accommodation of Employee’s Religious Preferences Under Title VII of Civil Rights Act of 1964, 34 A.L.R. Fed. 1 (1996).
27. 29 C.F.R. § 1605, App. A.
28. 432 U.S. 63 (1977).
29. Holly M. Bastian, Religious Garb Statutes and Title VII: An Uneasy Coexistence, 80 GEO. L.J. 211, 222 (1991) (discussing the practical effect of the Court’s decision in Hardison).
30. Id. at 221 (analyzing TWA, 432 U.S. at 84-85).
31. TWA, 432 U.S. at 84.
32. Id.
33. 479 U.S. 60 (1986).
34. Id. at 62-63.
35. Id. at 64.
36. Id.
37. Id.
38. Philbrook, 479 U.S. at 65.
39. Id. at 66.
40. See Sonny Franklin Miller, Religious Accommodation Under Title VII: The Burdenless Burden, 22 J. CORP. L. 789 (1996-1997) (citing Hardison, 432 U.S. at 63).
41. Id.
42. Id. at 795.
43. Id.
44. 2011 WL 2792450 (D.N.J. 2011)
45. Id. at *1.
46. Id. at *5.
47. Debbie Kaminer, Title VII’s Failure to Provide Meaningful and Consistent Protection of Religious Employees, 21 BERKLY J. EMP. & LAB. L. 575 (2000) (citing Hudson v. W. Airlines, Inc., 851 F.2d 261 (9th Cir. 1988) (a collective bargaining agreement “allowed employees to trade shifts with coworkers, and allowed employee lateral transfers in order to gain seniority privileges.”).
48. Getz v. Com. Of Pennsylvania Dep’t of Public Welfare, 802 F.2d 72, 74 (3d Cir. 1986).
49. Pinsker v. Joint Dist. No. 28J of Adams and Arapahoe Counties, 735 F.2d 388, 391 (10th Cir. 1984).
50. Keeling, 2011 WL 2633530 at *7; Fields v. Rainbow Rehab. Ctr. Inc., 2011 WL 2447974 (E.D. Mich. June 14, 2011)(finding an employee was reasonably accommodated where the defendant offered to let him trade shifts with other workers and to schedule one-on-one meetings when he missed those held on days he requested off; the employer was not obligated to ensure that the employee was able to swap every shift).
51. Bastian, Religious Garb, supra note 31 (citing Protos v. Volkswagon, 797 F.2d 129 (3d Cir. 1986) and International Association of Machinists v. Boeing Co., 833 F.2d 165 (9th Cir. 1987)).
52. See Bastian, supra note 31.
53. Hardison, 432 U.S. at 63
54. Id. at 84; see also Webb v. City of Philadelphia, 562 F.3d 256, 259-60 (3d Cir. 2009).
55. EEOC v. GEO Group, Inc., 616 F.3d 265, 273 (3d Cir. 2010).
56. 616 F.3d 265 (3rd Cir. 2010).
57. Id. at 274.
58. Id. at 273.
59. Finnie v. Lee County, Miss., 2012 WL 124587, *1 (N.D. Miss. Jan. 17, 2012)
60. Id. at *22.
61. A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 271 (5th Cir. 2010) (“What we have in the present case is an elementary school, which, even in its most authoritarian form, is neither a military operation nor an incarceration facility.”).
62. 798 F. Supp. 2d at 1275.
63. Id. at 1276.
64. Id. at 1278.
65. Id. at 1275.
66. Id. at 1287.
67. Commission Guidelines, 29 C.F.R. § 1605.2(e)(1

A Cloud on the Horizon

Giuliano Chicco

Want to dip a toe into cloud computing? Try one or more of these clouds based services.

There is much written about "the cloud" and whether lawyers should "be on the cloud." Going on the cloud basically means using services on the internet or software as a service ("SaaS").  This article will not discuss the many pros and cons of such a decision, which ultimately come down to security versus cost.

Rather the purpose here is to highlight an variety of clever, single purpose online applications that do one thing well, for free or at low cost. Most of these were not built with attorneys in mind, but all of them at one time or another could prove useful to an time-strapped in-house counsel.

The tools or services are organized by their general function, and if is something you would find useful, I recommend trying several in the category to find the one that is most intuitive, has specific features you value or feels most comfortable to you. Note that some of the descriptive language was lifted from the product website.

Scheduling Tools:

Rather than exchange endless emails with a number of people trying to coordinate a specific time, try one of these online schedulers.

Doodle is a free easy scheduling tool, with no registration requirement. Premium fee-based service also available.

Meet-o-matic is an easy meeting scheduler. Advanced fee-based "private label" service is available.

Meeting Wizard, another free online scheduler.

Time To Meet is a web-based meeting scheduler, takes care of time zone differences and can automatically synchronize your calendar from Outlook, iCal or Google. Requires registration.

Connecting with Peers:

Also known as "Social Media" these tools allow you to set up an online space where you can communicate, share documents, and generally collaborate.

Constant Contact is good for broadcast email and event markets. Fee-based service although they do allow for a free trial.

Facebook Groups when you want to share with a small group of people? Just create a group, add friends, post updates, poll the group, chat with everyone at once, and more. Requires that all participants have Facebook accounts.

LinkedIn Groups can be used to help you stay informed and keep in touch with people that share your interests. Be sure to check out the NJCCA LinkedIn Group.

Twitter is an online social networking service and micro blogging service that lets users send and read text-based posts of up to 140 characters.

Google Groups lets you put all of your discussions in one place with favorites and folders and customize your posts with fonts, colors, and images.

Google + is similar to Facebook, a full featured sharing service, although not yet as extensive.

Proboards is the largest host of free forums on the Internet. Compatible with smart phones

Pbworks is a fee-based, online team collaboration, share files, and manage projects within a secure, reliable environment.

Content Collaboration:

These tools allow you to "crowd-source" or invite multiple people to participate online with whatever the project might be.

Edistorm is a web-based service for collaboratively creating and recording brainstorming sessions. Think of virtual sticky notes on a wall. "Add, discuss and organize ideas from multiple locations before, during and after (or instead of) your meetings." Includes instant voting function.

Board800 is a service that lets you create a collaborative whiteboard space, and draw shapes and add text. To use Board800 visit the homepage, click "start drawing," and then click "create a new session." Once you've started a white boarding session you can invite people to join you by sharing the session name/number assigned to your whiteboard.

Wise Mapping is a free collaborative graphic organizer. Each cell can be dragged and moved around losing any text or text formatting. The resulting "mind maps" can be shared with others via email, URL link, or be embedded into a blog or website.

Slatebox is a slick tool for collaboratively creating organizational charts. Slatebox offers a variety of good-looking templates and intuitive tools for designing and editing charts. Just select a template and use the visual editor to put text and images in boxes. Those boxes can be resized and rearranged using the drag and drop editor.　

Bubbl.us is a free brainstorming/graphic organization tool that allows users to collaboratively create and edit, but requires registration. Users can use their keyboard or use the drag and drop interface to arrange elements, and end product can be exported to a JPEG, PNG, or as an XML or HTML file.

Cacoo is a collaborative diagram creation resource that allows you to draw shapes, type, and drag and drop elements. You can also upload images to include in your diagrams. The collaborative aspect of Cacoo allows you to invite other people to contribute to your diagrams and chat with your collaborators in real-time while you work. Potentially of interest to IP attorneys working with scientists.

Exploratree is a free graphic outlining tool that lets you analyze or appraise anything in a structured way. It has numerous pre-made graphic templates, called "thinking guides" or you can create your own template. Guides can be created collaboratively, good for working in groups to design projects together.

CoSketch is a free and easy-to-use collaborative white boarding tool. CoSketch can be used to draw on an uploaded image, map or other graphic. You can invite anyone to become a collaborator by sending them the associated link, and chat with them while you work.

Presentations:

These tools should help you perfect and improve your presentations.

Powerpoint is a staple in most offices. Now Microsoft lets you crowd source the presentation preparation using "SkyDrive" a PowerPoint web app that allows you to assign portions of a presentation to different folks. This is ideal for a program moderator to keep his panel on a common platform with no rework. Ed Note: Before drafting your next presentation watch "Life and Death by PowerPoint" and then read Presentation Best Practices.

Keynote lets you create presentations with "powerful yet easy-to-use tools and dazzling effects" on your iPad, iPhone, and iPod Touch. You can also save and email slideshows as PowerPoint files.

Prezi is an online, collaborative presentation building tool, lets you easily insert images, videos, YouTube videos, PDFs, or other media. You can choose a template and or theme from their library and customize it. The presentation can be made Online and Offline, and it supports real-time collaboration.

Games & Activities:

Any attorney with training and compliance responsibilities would be wise to consider the value of games and interactivity as a component of your training initiatives.

SuperTeacherTools is an assortment of technology tools for teaching that are quick and easy to download, learn, and use. Ideal for employee training and compliance these tools mimic readily recognized games, such as Jeopardy, Speed Match, Who wants to be a Millionaire, Hangman and others.

Wordle an application for generating "word clouds" from any text that you provide. The clouds give greater prominence to words that appear more frequently in the source, and let you zero in on the most important points based on frequency. A reveling test is to load text from an article into Wordle, to visualize the predominant concepts, based on frequency of the words included.

JigsawPlanet lets you create online jigsaw puzzles from your images. This is very addictive and a potential time sink, but I would be interested in hearing from in anyone who has a creative legal or training application for this tool.

ClassTools.net  "Create free educational games, quizzes, activities and diagrams in seconds! Host them on your own blog, website or intranet! No signup, no passwords, no charge!" Flash templates include some business applications like Venn diagrams, automated timelines, living graph, and priority chart. Includes video tutorials for quick start.

Games for Trainers is a wide assortment of Board, Brain, Card, Icebreakers and teambuilding excercises for trainers and facilitators. One neat feature is the ability to upload a PowerPoint presentation (up to 200 slides) by "adding game questions, discussion points, additional information, sounds and bonus points to any slide."

LearningWare is not a free site, but it has the typical business related games. Worth noting is the ability to add interactive game elements to online webinars.

Survey and Feedback Tools:

Every once in a while you need to do a survey. Whether it is to collect data, test assumptions or gather feedback, here are some easy options.

SurveyMonkey is the most popular online survey tool. It is easy to use, and comes with various canned surveys for customers, products, employees, performance research and more. The system collates and aggregates responses, however free surveys are limited to ten questions, but more elaborate fee-based options are available.

Survey Gizmo is not a free service, but they have a 14 day free trial. A full featured survey tool, fully brandable, includes graphics and videos, Subscription includes phone support.

Question Pro creates online surveys either using a wizard, a template or by uploading your surveys directly from word files. Survey distribution options include email, embedded surveys, pop-up surveys, post to Facebook, Twitter, etc. Real-time data collection, plus online survey analysis, frequency report, cross-tabulation, and data export. The first survey is free, but pricing options are reasonable.

Constant Contact Surveys Free 60 day trial, provides all the standard professional features.

Google Docs Forms  "is a useful tool to help you plan events, send a survey, give students a quiz, or collect other information in an easy, streamlined way. A Google form is automatically connected to a spreadsheet with the same title. When you send or share a form, recipients’ responses will automatically be collected in that spreadsheet." Free, but it is Google.

VolunteerSpot "Free and easy online signup sheets, volunteer scheduling software, and volunteer management software help coordinate volunteers quickly and easily."

Classrooms:

For attorneys with training and compliance responsibilities, these virtual classrooms are indispensible.

WizIQ  while it is not free, it lets you share anything, including your desktop. Supports chats, virtual whitebards, breakout sessions, participant polling, and recording of live sessions. They do provide a thirty day free trial.

AnyMeeting a free Web Conferencing & Webinar Service. No time limits or restrictions, up to 200 attendees per meeting, screen sharing, conference calling and more. Requires registration.

Video Chat Services:

For those occasions when a phone call isn't enough, these services provide video chat capabilities. To fully participate you need a laptop or PC with video capability, i.e., a camera.

Skype provides free Voice over IP (VOIP) telephone, also talk face-to-face with live video for free and/or low cost.

Join.me Is a simple secure screen sharing tool for meetings on the fly. Get everybody on the same page or screen to review documents or train staff.

Oovoo provides free video chat capabilities for up to six people. Requires download of a software client. Features include HD/high resolution video, call recording, mobile capability, desktop sharing, large file transfers and text chat. Premium subscription service available.

Organization:

Specifically tools that let you organize, share and transfer documents across multiple platforms and devices.

Livebinders collects and presents your resources online, think of it as an online 3-ring binder. Share documents in a easy to use format, that looks like pages in a book. Format independent content is readily updated.

Scribd is a social publishing site, where tens of millions of people share original writings and documents. It is not private but a good site to publish information you might want to distribute to a large audience. Think of it as YouTube for writers.

Evernote is a collection of products that help you remember and act upon ideas, projects and experiences across all the computers, phones and tablets you use. You can capture information and save information from websites, photos and even record some audio notes.

OneNote, a Microsoft product, lets you access, organize and share your documents, photos & more from your pc, phone or the web, however it is not free.

File Sharing on the Cloud:

Services that let you synchronize your documents across digital platforms, share files and collaborate with peers.

Dropbox is a free service that lets you bring your digital documents (also photos and videos) anywhere and to easily share them.

Live Mesh  is a Windows product that keeps your work files, pictures, Office settings, bookmarks and other files in sync across multiple devices.

Google Docs is one of the many Google tools, this one to create and share your work online and access your documents from anywhere. Upload documents, spreadsheets, presentations, etc. and access from any device, and share and collaborate with colleagues.

Box.net  is a collaboration tool that simplifies online file storage and connects teams in online workspaces. While not a free service, they do provide a free trial, the prices are modest, and it has been adopted by many companies.

iCloud is an Apple service, stores your music, photos, documents, and more and wirelessly pushes them to all your Apple devices.

Huddle offers secure external access across the firewall and is available on mobile devices including iPhone, iPad and BlackBerry, alas it is not a free service.

Media Utilities:

Tools for those occasions when only a video will do, for training, depositions, etc.

YouTube is the pre-eminent video publishing and sharing website. In addition to videos of kittens playing the piano, YouTube has proven to be a valuable site for a wide variety of training videos. While it may not be an obvious choice for lawyers, you can post video content that is hidden and available only to folks you allow to view it. Also check out YouTube Downloader  a popular, free utility that enables you to download and save online videos to your PC (copyright rules do apply).

Vimeo is a simple to use video sharing site, either open or shared privately. You can even set up private channels and groups.

A final word of caution, to quote Jonathan Zittrain, a professor of internet law at Harvard and a co-founder of the Berkman Center for Internet & Society, "If what you are getting online is for free, you are not the customer, you are the product."

2012 Spring Cocktail Reception

One of our most popular networking events.

Pro Bono Partnership Honors Merck and Jackson Lewis

Rick Hobish
Pro Bono Partnership, the nonprofit legal assistance provider, names its 2011 Volunteers of the Year.

The Pro Bono Partnership, a nonprofit legal assistance provider serving Connecticut, New Jersey, and New York nonprofits, has named its 2011 Volunteers of the Year. These outstanding volunteers were recognized at a reception hosted by Hogan Lovells at Hogan’s Manhattan office. Merck & Co.; Jackson Lewis; Patricia A. Bowen, UnitedHealthcare Employer & Individual; Melanie L. Brown, BASF; Gregory M. Conroy, Mayer Brown; and Sally Lake, retired from IBM Research, were honored for their pro bono contributions to the Partnership’s clients. Bethsaida Community, Inc.’s Homeless Women Deserve Treatment Project was also named Outstanding Nonprofit Project of the Year.

• Merck & Co. attorneys illustrated their dedication by undertaking 44 legal matters for Partnership clients in 2011 alone. Bruce Kuhlik, Merck general counsel, said, “Merck attorneys recognize the importance of providing pro bono legal services, and our collaboration with the Pro Bono Partnership is a very productive way for us to volunteer. We are grateful for the opportunity to work with the Partnership’s clients and truly honored by this award.”
• Susan Corcoran of Outstanding Law Firm of the Year Jackson Lewis, noted, “We believe that, in a profession dedicated to achieving justice, it is our duty to help ensure all have equal access to legal representation, regardless of their means.”
• Outstanding volunteer Patricia Bowen, chief compliance officer for UnitedHealthcare Employer & Individual, was recruited to help Girl Scouts of Connecticut (GSOFCT) with a bylaws review and revision, but ended up working with GSOFCT for more than a year.
• Melanie Brown, BASF’s assistant general counsel, noted, “My experience with the Partnership’s clients has been very positive and rewarding. They are so appreciative of a volunteer attorney's advice and guidance.”
• Gregory Conroy of Mayer Brown helped Neighbors Link in Mt. Kisco, NY, which provides programs and services to better integrate the local immigrant community.
• Sally Lake has been busy since she retired as associate general counsel of IBM Research. She has reviewed an agreement for the donation of books and artwork for the Bedford Audubon Society (NY) and helped negotiate a sponsorship agreement for support and renovation of Silvermine Tavern.

Rick Hobish, the Partnership’s executive director, says “We are honored to recognize these Volunteers of the Year. Their dedication and outstanding legal skills have made an incredible difference to the lives of the many hundreds of individuals in three states.”

This article first appeared in the Metropolitan Corporate Counsel, on March 22, 2012.

Substantive Articles

Giuliano Chicco

With our new monthly feature, you now have multiple bites at the apple.

One of the features we value most is the substantive article featured in each monthly issue.  Starting with the January 2012 issue we will publish a rolling list of the substantive articles from the past twelve months.  We hope that this feature will make it easier to find that article you remembered reading.  Of course copies of all the articles going back several years are always available on the NJCCA website.    

Substantive Articles

Our New Members

Meet our most recent new members. 

Members Notes

Short notes of interest to and about our members

Brief notes for and about members, this month featuring news about Aaron Kleinbaum, Joe Biden and Your Hidden Talents. Plus our ongoing search for volunteers (see the Committee article).

 

Member Notes is our monthly vehicle for members to share professional and personal information with other members of the NJCCA.  If you have a new position, a new title, or have recieved a professional (or other) award, published a book or article, or have any other similar information you would like to share with the membership, please send a note directly to Giuliano Chicco, NJCCA Newletter Editor, at GChicco1@verizon.net.

 

TWO VICE PRESIDENTS

Vice President/President Elect of NJCCA, Barbara Sellinger poses with another vice president. 
From the left: Ryan Sellinger, Vice President Joe Biden, NJCCA's Barbara Sellinger, Amanda Sellinger, Philip Sellinger, and Senator Robert Menendez.  

DISCOVER YOUR HIDDEN TALENTS

Our illustrious President, Joe Aronds, is the guest blogger on In-house Access, an online blog of insight & commentary for In-House Counsel Worldwide, published by the Association of Corporate Counsel. Joe's article, entitled "Discovering Your Hidden Talents" which appeared in the March 23rd issue, explores the role of creativity in the legal profession.

MEMBER TRANSITION

I am writing to advise that I have a new position as the legal director of the Eastern Environmental Law Center, located in Newark.  EELC is the sole New Jersey public interest environmental law firm.  Formerly I was the Deputy General Counsel and VP of Environment, Health and Safety at Ingersoll Rand Company.  NJCCA members are welcome to contact me.  (973-424-1166;  akleinbaum@easternenvironmental.org)
 
I would like to thank NJCCA and its members for the collegiality and support over the years.  I look forward to working with many of the members in the future.  And I would be happy to help with NJCCA's excellent CLE programs as the need arises.
 
Warm regards,
Aaron Kleinbaum

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OVERRULED! by Aronds

As far as we know, still the only Chapter Newsletter with its own in-house cartoonist! And now in color!