By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
Terra Naeve was the first person -- and, to date, the only person -- to be fired for breaking the Serrano's code of conduct. She would be out of work for eight months, sending out résumé after résumé even as 9/11 hit and the economy tanked.
And then, ironically, the very policy that was supposed to prevent lawsuits triggered a massive one.
If Terra Naeve had wanted to go bowling with her employees, or teach them how to make pottery, Serrano's could have fired her and the federal government couldn't have cared less.
Religion is different.
Title VII of the Civil Rights Act bars discrimination on the basis of color, race, gender, national origin, and religious belief. Employers can't refuse to hire anyone for those reasons, and they can't fire anyone for them, either.
For color, race, gender, and national origin, the law requires only that employers treat everyone equally. For religion, it goes beyond that.
The law requires that, if employees hold their religious beliefs sincerely, employers must do better than treat them equally -- they must make efforts to "reasonably accommodate" them, says Mary Jo O'Neill, regional attorney for the EEOC's Phoenix office.
For example: Blockbuster bans employees from wearing hats on the job. But while the EEOC doesn't have a problem with the policy in general, it brought charges against the company on behalf of a Jewish man who felt that his faith required him to wear a yarmulke. Because his desire was not just a matter of style or whim, the agency believes Blockbuster must accommodate him.
"When it comes to religion, the law requires that employers bend a little," O'Neill says.
The key phrase, however, might be "a little." The most important precedent in defining reasonable accommodation is from a 1977 case, when a man named Larry Hardison sued TWA over its requirement that he work Saturdays. The Supreme Court ruled in favor of TWA, agreeing that anything beyond a "de minimus" cost to the airline was asking too much. Larry Hardison had to choose between his Sabbath and his job.
And so if Blockbuster could show that allowing a Jewish clerk to wear a yarmulke would cause sales to slide, it wouldn't have to bend. (Since the company had no research showing that, Blockbuster chose to settle before trial and pay a $50,000 fine.) Debbie Kaminer, a professor of law at the Zicklin School of Business at the City University of New York, tells the story of a retail clerk who sued his employer after being barred from starting almost every sentence with the phrase, "In the name of Jesus Christ of Nazareth . . ." The court, Kaminer says, thought that was going too far. The clerk lost.
The question of how far is too far, though, has never been easy. Even more than race and gender, Kaminer says, religion has proven to be a minefield.
When President Lyndon Johnson signed the Civil Rights Act into law in 1964, he couldn't have imagined the country's increasingly pluralistic religious mosaic. And there's no way he could have foreseen that evangelical Christians would become an interest group with major sway at the polls, eager to safeguard their rights in the courtroom. The two factors, together, would prove explosive.
Religion has always been a small percentage of the complaints in the EEOC's caseload -- less than 2 percent in 1994. But even as claims about racial discrimination dropped in the past 10 years, religious ones increased 60 percent, according to national EEOC statistics. They now make up almost 5 percent of the complaints received.
Unlike claims about race or color, the parameters for what, legally, constitutes religious discrimination have remained wildly contentious.
In 1993, for example, the EEOC announced its plan for a set of guidelines to help employers navigate Title VII. Race and gender guidelines drew no serious complaint. But controversy erupted over the ones for religion.
The complaints about new guidelines, Kaminer says, revealed the fundamental tension within Title VII's religious provisions. Consider: One of the law's goals is protecting minority religious groups. (For example, allowing an Orthodox Jew to wear his braids to work.) But a second goal is allowing expression of contrary beliefs. (Say, allowing Christians to tell Jews that they believe Jesus is the only path to salvation.)
No rational person would argue that Jews should be subjected to a barrage of suggestions from their officemates that they're headed straight to hell. But plenty did argue, loudly, that the EEOC's attempt to ban religious harassment could actually halt their efforts to share their faith. If a curious Jew asked a Christian co-worker what she believed, shouldn't she be able to answer without fear of government sanction?
The fight against the guidelines started with Christian activists, but eventually even the ACLU announced its opposition. The EEOC ended up scrapping the guidelines entirely.
As the devoutly religious gain a better understanding of their legal rights, the tension in Title VII can only grow more pronounced. After all, the law does not require that a religious belief be mainstream or universally held, Kaminer says.
And so when Title VII demands that employers make reasonable accommodations, it does so regardless of whether the employee is a Christian or Jew, a cult member or a Buddhist. Someone claiming to hear a direct call from God has just as much legal protection as someone following rules that have been in place in their church for centuries.