Reprinted from the March 15, 2007 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Religious Harassment: Insensitivity vs. Intolerance

No employer is expected to provide employees with a completely civil and sterile environment. People say stupid and insensitive things all the time, and the courts understand that it’s impossible for managers to prevent employees from putting their foot in their mouth. What courts look for is how you react to religious insensitivity. Do nothing, and a court might see illegal intolerance.

“WHAT DID I SAY?”

“That’s not ham and cheese, is it?” Dave Eggert joked as Jay Goldberg took a bite out of his sandwich. “Did you bring lox and bagels instead?”

Goldberg groaned at his supervisor. “The first time you asked me whether I could eat pork, I thought you were sincerely interested in learning about my Jewish faith,” Goldberg responded. “Obviously, you’re just having a laugh at my expense, since this is the fifth time you’re asking me. It’s not funny, Dave.”

Goldberg relayed the conversation to their department head, Silvia Fallon. “Okay, I’ll tell Dave to knock it off.”

But at their next sales meeting, Eggert wouldn’t leave Goldberg’s religion alone. When Goldberg commented that he would like to earn extra money, Eggert replied: “With a last name like Goldberg, it doesn’t surprise me.”

“What?! We’re in sales for crying out loud! We’re all about earning money,” Goldberg shot back.

A little while later, Goldberg was back in Fallon’s office complaining about Eggert. “Dave has said to me on numerous occasions, ‘Don’t be a cheap Jew’ and ‘stop worrying about money, stop being so Jewish.’ It’s offensive!”

Fallon discreetly questioned other workers. No one confirmed any of Goldberg’s allegations. In fact, another Jewish employee stated that he never felt harassed about his religion and was never made to feel uncomfortable.

With no action taken against Eggert, Goldberg went to court for relief. Despite the company’s argument that it had investigated and found no evidence of harassment, the court sent the case to trial. Reason: Given the conflicting testimony, a jury should resolve whether Goldberg was unlawfully harassed.

“WHAT DID I DO?”

When Lisa Arpel converted to Islam, she found management to be supportive of her religious beliefs. Her manager gave her permission to wear a hijab, the traditional head scarf, with the standardized uniform and to go on break whenever she needed to pray, which was five times a day.

Her co-workers, on the other hand, were not. They stared at her hijab and made negative comments. They jumped ahead of her to take a break when she wanted to request a bathroom or prayer break. When she complained, her manager told her to ignore them and their juvenile behavior.

Arpel’s harassment suit was allowed to proceed. The fact that she had complained to her manager three times and been told to ignore her co-workers before the company initiated an investigation was enough to warrant a trial.

APPROPRIATE RESPONSE

Rein in religiously insensitive employees. Regardless of whether they are guilty of illegal harassment, they are guilty of inappropriate behavior.

• Hold supervisors to a higher standard. No joking about an employee’s religion or picking on an employee because of his/her religion, even if there is no malicious intent.

• React immediately. An employee complaining about one or two rude comments is not harassment. But because it could be the beginning of a pattern of harassment, you must at least warn the offending employee(s) to stop. Discipline is not necessary for one or two comments, but a reaction to the complaint is. Your reaction can include a department meeting regarding appropriate and respectful behavior that does not single out anyone in particular.

• Assess credibility. If you can’t corroborate an employee’s complaint, but you believe he/she is being sincere, dig deeper. Make it a point to spend more time with your staff to monitor interactions.

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