Bhakta David Nollmeyer
I researched into the continuum of faith based practices, rights, and transformations may may occur in the workplace regarding Cross Cultural Management. I researched nine sources: 2 governmental, 2 NGO advocacy groups, 2 faith based writers, 2 sources on faith based accommodation, 1 textbook author, and one United Senator. I found that the history of the United States has a nexus with rights that continues to influence and transform the laws that govern us as the Civil Rights Act of 1964 Title VII. However it appears that faiths of new immigrants are accounting for the requests for workplace accommodation. This has redefined what is considered a recognized belief system. I believe that diversity is reality. Both private and public management must consider and train for the presence in workplace of faith based practices that reflect out changing culture.
Faith in the Workplace: Practices, Rights, and Transformations
In the United States faith has had a prominent, interesting, and transformational effect on the values and work ethics that have shaped both the public and private workplace. There is a convergent and divergent evolution of core values and assimilated perspectives that have come to bear on what we practice as faith in our homes and in the workplace. Strong Prudential values of the first colonialists and the more holistic natural belief systems of the Native Americans have facts and counterpoints that have endured, been challenged, and assimilated as waves of immigration bring a more diverse population and faith based practice into the workplace (Carr Ruffino 2009).
The simple assertion of our forefathers that a belief in God, honesty, and hard work would create a world of morality, reason, and prosperity has not occurred without the establishment of legal rights from the federal government protecting and guiding what practices are legally permissible in our workplaces.
The First Amendment in the Bill of Rights states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the Government for a redress of grievances (Vincent).
Simply put the freedom to think, choose the faith of one's choice, to live where one feels secure, and to have an appeal heard even if this is a challenge to the government is a cornerstone of this country's legal system and distinguishes the Constitution. Our heritage of religious toleration and rule of law helped establish what is known as democracy today (Vincent).
Liberalism emerged through Christianity where moral or natural reason were considered universal characteristics that defined a faith or philosophy. Liberal Arts then flourished in the traditional universities from Europe to the free world. Liberal Studies stressed a comparison of Christianity with another cultural based on morality and reason. In this regard the Liberal Arts desired to free one's mind while still concerning itself with a scholastic search for truth and civic leadership. Currently the focus on education is research and career preparation (Hoeckly). The diversity of faith practices have a very similar moral and intellectual inner structure reflecting traditional pathways in Western Thought. It is from this rectitude that issues were deemed to be right or wrong, rights and duties, or legal or illegal. Although far from the majority, belief and conduct has pertinence to the ordination of society and government. Individuals from a wide range and domain of practices are requesting accommodation and legal protection from the law for their beliefs.
The practice of a system of faith by employees presents a considerable challenge for the employer, employee, and the federal government. With multiplicity of faiths of workers in the United States, the diversity of a changing workforce will bring different practices and rules that have to be adapted to by the workgroup under legal rights.
Two of the pivotal legal documents that provide for faith based practices are the United States Constitution and Title VII of the Civil Rights Act of 1964. The First Amendment is the key amendment and guarantees free speech. The 14th Amendment contains the Due Process Clause. The Constitution provides essentially for two rights. This is the right to practice one's faith and the other is to remain free from a government imposed religion. This fundamental substantive right and protection from the government was upheld in the law of case: The law states that no State shall make or enforce any law depriving any person of "life, liberty, or property, without due process of law," or denying any person the "equal protection of the laws," §1, and empowers Congress "to enforce" those guarantees by "appropriate legislation," (City of Boerne v. Flores 1997).
Americans are used to expressions of disagreement on controversial subjects, including religious ones.
(The White House 1997)
On August 14, 1977, President Bill Clinton issued a directive entitled GUIDELINES ON RELIGIOUS EXERCISE AND RELIGIOUS EXPRESSION IN THE FEDERAL WORKPLACE.
The Directive applied to all civilian executive branch agencies, officials, and employees in the federal workplace. This order guaranteed personal religious expression by employees in the federal workplace except where the employee's interest or practice was in conflict with government's obligation of public service. However government agencies were still permitted in their discretion to reasonably regulate the time, place, and manner of all employee speech provided that these regulations do not discriminate on the basis of content (The White House 1997).
The Directive covers faith based employee conduct while in a personal capacity. As such an employee may keep a Bible, Koran, or scripture on one's private desk which may be read during breaks. Also inclusive is the right to display religious messages on items of clothing as long as these messages are permitted in the same extent of other comparable messages (The White House 1997).
There is an increasing diversity of faith being practiced by the American workforce. Out of 1500 faiths, 900 may be seen as Christian, and 100 Vedic. Under equal protection Paganism, and the Church of Scientology have protected status. Paganism may include Druids, witches, shamans, and aspects of Christianity. The Church of Scientology was started in 1954 by science fiction writer L. Ron Hubbard (Digh 1998).
As seen employees filed complaints based on discrimination had risen 9 percent to 1709 in just one year from 1996 to 1997 (Digh 1998).
The employer must reasonably attempt to accommodate an increasingly wide range of requests regarding being able to exercise their right to faith based practices. As such human resource managers must become aware of basic tenets and principles of diverse practices (Findlaw 2011).
For example, in the Islam faith, the followers are known as Muslims. Adherents bow and pray facing Mecca five times per day. Ramadan is the Holy Week where followers fast.
In Sikhism there are elements of from both Islam and the Vedic traditions. The followers are known as Sikhs. The men wear turbans and do not shave (Digh 1998).
An employer who is knowledgeable and able to keep channels of communication open between management and coworkers is more likely to maintain a happy workforce and working environment. Title VII requires employers "to reasonably accommodate...an employee's or prospective employee's religious observance or practice" (The White House 1997).
In attempting to accommodate a request, safety is concern. Does clothing jeopardize standards or create risks? The practice in question shall not infringe on the beliefs of coworkers. An employer, in order to obtain an exemption must specify that an accommodation would impose an "undue hardship on the conduct of the employer's business." 42 U.S.C. 2000e(j) (The White House 1997).
Here are two requests and possible resolutions (Digh 1998).
A. A request to trade shifts with another worker may be as reasonable.
B. A request to take a month off for a faith based observance may be seen as a hardship to the employer.
United States citizenship imposes rights and duties. With rights we are entitled to freedom to think freely and move about. Duties are the legal obligation to respect the law and the rights of others. The evolution of religious freedom is a part of the heritage of the United States. Such continues as rights are discovered from the original framework of the Constitution and Bill of Rights. The First Amendment, the Civil Rights Acts of 1964 especially Title VII provide for religious expression and accommodation. In 1997 President Bill Clinton refocused the need for federal guidelines in the work place concerning faith based practices by ordering the Directive. The Workplace Religious Freedom Act (S. 4046) was introduced on December 17, 2010 by Senator John Kerry. This bill would provide for my flexibility for workers in their dress (Feinstein 2011).
The historical emergence of faith based practices has evolved in the United States under a system of Separation of Church and State. The government in it's wisdom has attempted to recognize the diversity of beliefs that it's citizens practice and it's value in private, public, and economic life.
Religious discrimination in the workplace involves treating an applicant or employee prejudicially because of one's religious beliefs. Protections provide remedies not only to traditional practices as Buddhism, Christianity, Vaishnavism, Islam, and Judaism, but to all who have sincere faith based, ethical or moral beliefs. Federal civil rights protections bind employers of 15 or more persons. Employees have 180 days to file a complaint. Federal employees have 45 days to file a complaint. Marriage or the association of persons who practice faith is also protected (EEOC 2011).
Discrimination is illegal in any phase of employment, as hiring, termination, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment (EEOC 2011).
It is a violation of Civil Rights to harass one based on religion. Conduct can include offensive remarks about one's faith or practices. When the conduct becomes so frequent or severe that it creates a hostile work environment or such creates an adverse employment decision as demotion or termination such is illegal. Those parties who are culpable may be a supervisor, owner, coworker, or a client or customer (EEOC 2011). Overall the balance of common practice and protected rights has emerged reflecting the interaction of individuals in the workplace and government. When private or public workplaces have not been willing to accommodate faith based requests the question emerges of whether these issues are rights or should have protected status. As the magnitude of these issues emerge they are either reconciled or an intervention is needed by law.
The motility of the world’s population is increasing due to economic and faith based freedom plus political circumstances. As such, expression of one's faith in practice and symbols is going to occur in the workplace. However, this right does not absolutely extend into the workplace and confer any extraordinary duty on coworkers to participate. Although discrimination is strictly prohibited such exists. As seen employer's should prepare all employees in the workgroup. Gandara states, "Training and education should be provided to all employees regarding the policy and exactly what constitutes discrimination, with training specifically for managers and employees acting in any supervisory capacity on termination procedures, conflict resolution, and observation skills"(Gandara p.198).
As interests range from politics, business, and faith itself expand, older traditional boundaries will fall. Emergence usually will create increasing complexity to lead and manage. This will likely be reinforced by amending legislation:
Senator John Kerry (D MA) introduced the Workplace Religious Freedom Act (S. 4046) on December 17, 2010. This bill would have amended the Civil Rights Act of 1964 to require employers to make affirmative efforts to accommodate the religious practices of employees, including an employee's practice of wearing religious clothing or a religious hairstyle The Senate has not voted on S. 4046 before the 111th Congress adjourned on December 22, 2010. This legislation must be reintroduced in the 112th Congress (2011 2012) in order to be passed (Feinstein 2011).
Optimizing employee efficiency and happiness is a cornerstone to a stable society. As many firms emerge towards being transnationals from multinational firms it is in their interest to promote diversity in their products, services, and employees. This same diversity is also reflected in the Armed Forces and public administration. As seen the government has a very tenable task to remain neutral, legislate rights but at the same time enforce the violation of infractions strongly and with due process.
Human Resource officers and employer’s must be able to accommodate the changing workplace that faith based diversity brings as well as stay productive. Since there is a difference between management and file, the leadership capacitated to order subordinates should take the initiative to guarantee that the channels of communication are open and that Civil Rights postings remain in clear view. Leadership should be transparent and actively concerned that issues are deliberately considered and dispensed with in conformity to federal and state rights.
Education is a long term solution but to create the best modification in conduct, rules must be enforced. There must be consequences for non compliance. Both criminal and civil remedies should reinforce infractions against rights. The assertiveness of an employee who believes their rights have been violated should not subject them or their supporters to retaliation (ADL 2011).
Gandara in her recommendations to avoid double recovery due to claims states, "An employer should first assess it's company policy regarding workplace harassment and discrimination. If the employer has no policy, it should immediately draft and implement a written one" (Gandara p. 197). (Her complete suggestions will be included in the Appendix).
The concept of equality and fair treatment is an integral part of Faith Practices. In turn through history it has had positive and negative effects of both the private firm and government. This trajectory is far from static and the interaction between different forms of social order form cornerstones within our cultural framework. It is in the best interest of good government to make rational decisions to protect conduct that can be perceived to be private that help create a dynamic and just working environment. This will insure leadership and competitiveness domestically and globally as a cultural diverse population enters the American workplace.
Anti Defamation League (2011). Religious Freedom in the Workplace: Your Rights and Obligations. Retrieved June 17, 2011 from: http://www.adl.org/religious_freedom/resource_kit/religion_workplace.asp
Carr Ruffino, N. (2009). Managing Diversity People Skills for a Multicultural Workplace. New York NY: Pearson.
Digh P. (1998). Religion in the Workplace: Make a Good-Faith Effort to Accommodate. Center Collection. Originally published in HR Magazine, December 1998.
Feinstein D. (2011). Workplace Religious Freedom Act. Email.
Findlaw 2011. Federal Laws Against Religious Discrimination. U.S. Department of Justice Civil Rights Division. Retrieved June 26, 2011 from: http://public.findlaw.com/civil-rights/more-civil-rights-topics/religion-discrimination-more/religion-discrimination-federal-laws.html
Findlaw. Religion<.em>. Retrieved June 11, 2011 from: http://caselaw.lp.findlaw.com/data/constitution/amendment01/01.html
Gandara, C. (2006). Post-9/11 Backlash Discrimination in the Workplace: Employers Beware of Potential Double Recovery. Houston Business and Tax Law Journal.
Hoeckley, C.W. n.d. Liberal Arts Tradition and Christian Higher Education – A Brief Guide. Institute for the Liberal Arts at Westmont.
U.S. Equal Employment Opportunity Commission (2011). Laws, Regulations, Guidance, & Mous.Retrieved June 15, 2011 from: http://www.eeoc.gov/laws/types/religion.cfm
Quaker Information Center. Retrieved from: http://www.quakerinfo.org/history/1701%20charter/1701charter.pdf
The White House (1997). Guidelines on Religious Exercise and Religious Expression in the Federal Workplace. Retrieved June 7, 2011 from: http://clinton2.nara.gov/WH/New/html/19970819-3275.html
Vincent B. Christianity and the American Constitution. Retrieved June 12, 2011 from: http://www.rbvincent.com/usconstitution.htm
Casandra Gandara has published these recommendations regarding the formulation of an anti discrimination policy for an employer (Gandara p. 197).
A clear explanation of prohibited conduct;
Assurance that employees who make complaints of [discrimination] or provide information related to such complaints will be protected against retaliation;
A clearly described complaint process that provides accessible avenues of complaint;
Assurance that the employer will protect the confidentiality of discrimination complaints to the extent possible;
A complaint process that provides a prompt, thorough and impartial investigation; and
Assurance that the employer will take immediate and appropriate corrective action when it determines that [discrimination] has occurred.
The following data has been provided from Anti Defamation League website. The following are the more salient codes that reflect faith based practices that managers is a Cross Cultural setting should be aware of.
Federal Laws Against Anti Religious Discrimination and Violence:
Key Federal Statutes Prohibiting Religious Discrimination and Anti Religious Violence
18 U.S.C. § 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the Unites States, (or because of his/her having exercised the same).
18 U.S.C. § 245 makes it unlawful to willfully injure, intimidate or interfere with any person, or to attempt to do so, by force or threat of force, because of that other person's race, color, religion or national origin and because of his/her activity as one of the following:
A student at or applicant for admission to a public school or public college
A participant in a benefit, service, privilege, program, facility or activity provided or administered by a state or local government
An applicant for private or state employment; a private or state employee; a member or applicant for membership in a labor organization or hiring hall; or an applicant for employment through an employment agency, labor organization or hiring hall
A juror or prospective juror in state court
A traveller or user of a facility of interstate commerce or common carrier
A patron of a public accommodation or place of exhibition or entertainment, including hotels, motels, restaurants, lunchrooms, bars, gas stations, theaters, concert halls, sports arenas or stadiums.
18 U.S.C. § 247, The Church Arson Prevention Act, makes it a crime to deface, damage, or destroy religious real property, or interfere with a person's religious practice, in situations affecting interstate commerce. The Act also bars defacing, damaging, or destroying religious property because of the race, color, or ethnicity of persons associated with the property.
18 U.S.C. § 248, makes it a crime to, "by force or threat of force or by physical obstruction, intentionally injure[ ], intimidate[ ] or interfere[ ] with or attempt[ ] to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship" or to "intentionally damage[ ] or destroy[ ] the property of a place of religious worship."
18 U.S.C. § 249, The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 makes it a crime to willfully cause bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon) when (1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person or (2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce.
42 U.S.C. § 3631 makes it unlawful for an individual to use force or threaten to use force to injure, intimidate, or interfere with, or attempt to injure, intimidate, or interfere with, any person's housing rights because of that person's race, color, religion, sex, handicap, familial status or national origin.
Non Criminal Statutes
Title II of the Civil Rights Act of 1964 prohibits discrimination in public accommodations such as restaurants and motels on the basis of race, color, religion, or national origin.
Title III of the Civil Rights Act of 1964 protects against discrimination in public facilities, which are publicly owned and operated facilities open to the public, such as parks and community centers. Title III authorizes the Attorney General to bring suit when a person has been denied equal access to public facilities on account of race, color, religion, or national origin.
Title IV of the Civil Rights Act of 1964 prohibits discrimination based on religion in public primary and secondary schools, as well as public colleges and universities.
Title IX of the Civil Rights Act of 1964 permits the Attorney General to intervene in any action in federal court, involving any subject matter, "seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution on account of race, color, religion, sex or national origin," if such intervention is timely made and the Attorney General certifies that the case is of "general public importance."
Title VII of the Civil Rights Act of 1964 prohibits discrimination in public and private employment. It also requires employers to make reasonable accommodation of employees' religious observances and practices, unless doing so would cause the employer undue hardship.
42 U.S.C. § 3601, et seq., the Fair Housing Act, prohibits housing discrimination on the basis of race, color, religion, sex, national origin, disability, or familial status. These housing protections apply to discrimination in the sale or rental of housing, and also apply to the "terms and conditions" of the sale or rental of housing.
15 U.S.C. 1691, the Equal Credit Opportunity Act, prohibits discrimination against persons seeking home mortgages or other credit based on race, color, religion, national origin, sex, marital status, or age, or because an applicant receives income from a public assistance program.
42 U.S.C. § 2000cc et seq., The Religious Land Use and Institutionalized Persons Act (RLUIPA)prohibits zoning and historic landmark laws that substantially burden the religious exercise of churches or other religious assemblies or institutions unless implementation of such laws is the least restrictive means of furthering a compelling governmental interest. RLUIPA also provides that if a regulation imposes a substantial burden on the religious beliefs or practices of persons confined to certain institutions, the government must show a compelling justification, pursued through the least restrictive means.
42 U.S.C. § 2000bb et seq., The Religious Freedom Restoration Act (RFRA) "prohibits 'government' from 'substantially burdening' a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden '(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.'" RFRA only applies to the Federal Government and federal territories and possessions.
The Religion Clauses of the First Amendment to the United States Constitution provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first of the two Clauses, commonly called the Establishment Clause, commands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation's people. Cutter v. Wilkinson, 544 U.S. 709, 719 (2005)
The Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Art. VI, cl. 3.
Enacted in 1990, the Hate Crimes Statistics Act (HCSA) requires the Justice Department to acquire data on crimes which "manifest prejudice based on race, religion, sexual orientation, or ethnicity" from law enforcement agencies across the country and to publish an annual summary of the findings. In the Violent Crime Control and Law Enforcement Act of 1994, Congress expanded coverage of the HCSA to require FBI reporting on crimes based on "disability." Under the 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, the Attorney General is also required to collect data on crimes committed because of gender and gender identity, and crimes committed by and against juveniles.