NEWSLETTER

As the holiday season approaches, employers may be concerned about how to deal with challenges that arise in their increasingly religiously diverse workforces. These concerns are not unfounded. The Equal Employment Opportunity Commission (EEOC) reports that in 2007 it received a record level of religious discrimination charges and recovered over $6 million in monetary benefits on behalf of those aggrieved by religious discrimination. This article discusses some "best practices" that may help employers avoid religious discrimination claims during this holiday season and beyond.

Title VII of the Civil Rights Act of 1964

As most employers are aware, Title VII prohibits covered employers (those with 15 or more employees) from discriminating against individuals because of their religion.

Under Title VII, employers:

• May not treat employees or applicants more or less favorably because of their religious beliefs or practices – except to the extent a religious accommodation is warranted.
• Cannot force employees to participate – or not participate – in a religious activity as a condition of employment.
• Must reasonably accommodate employees' sincerely held religious practices unless doing so would impose an undue hardship on the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. An employer can show undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.
• Must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the employer. Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency.

Religious Harassment

Title VII has been interpreted to prohibit religious harassment. Religious harassment claims often occur when a religious employee tries to persuade a non-religious employee of the correctness of his beliefs, or vice versa. Requiring an employee to attend an office holiday party when that employee objects on religious grounds could give rise to a harassment claim or, more likely, a claim for failure to accommodate the employee's religious beliefs.

As with other types of harassment under Title VII, an employer may be able to avoid liability for religious harassment that does not result in a tangible employment action by showing that it has a well-publicized and consistently applied antiharassment policy that:

(1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management's attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.

Some suggested "best practices" for avoiding religious harassment claims include:

• Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
• Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee's objection.
• If a non-employee assigned by a contractor is the person engaging in the objectionable conduct, the supervisor or other appropriate individual in the chain of command should initiate a meeting with the contractor regarding the harassment and demand that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different individual be assigned by the contractor.
• Employers should immediately intervene when they become aware of objectively abusive or insulting conduct, even absent a complaint.

Accommodation Claims

Failure to accommodate claims can also arise during the holiday party season. Suggested best practices for avoiding claims of religious discrimination based on failure to accommodate include:

• Inform employees that the employer will make reasonable efforts to accommodate employees' religious practices.
• Make sure managers and supervisors are trained to recognize requests for religious accommodation.
• Consider developing internal procedures for processing religious accommodation requests.
• Assess each request for accommodation individually to determine the appropriate accommodation.
• Train managers and supervisors to consider alternative accommodations if the accommodation requested would pose an undue hardship.
• Consider a variety of accommodations in responding to an employee's request, such as:
• schedule changes;
• voluntary schedule substitutes or swaps;
• change of job assignments or lateral transfers;
• modification of uniform requirements, if possible.

Conclusion

The above suggestions, along with developing workplace policies and procedurs that include things such as: implementing objective criteria for hiring and promotion; establishing set interview questions directly related to the position sought; keeping accurate written records of the legitimate, non-discriminatory reason for any adverse employment actions; and providing appropriate training to new managers, may help employers avoid religious discrimination claims during the holiday season and throughout the year.

If you have any questions regarding the issues addressed in this article, please contact the author, Peyton Keaton at pkeaton@fordharrison.com or 407-418-2312.

Workplace communications transmitted over company-wide networks, such as e-mail and voicemail raise some interesting and new concerns for employers and human resources professionals. For example, Internet communications between employees are regularly introduced as evidence of discrimination. While many employers find it useful to monitor electronic communications to assess workplace productivity and prevent the misuse of employer-owned technology, electronic monitoring poses some risk of litigation and exposure to damages if employees bring civil actions claiming that the employer violated their right to privacy by monitoring their electronic communications. Now that many employees use personal digital assistants ("PDA's"), cell phones, and two-way communication devices to work, check work-related email, and communicate with co-workers outside of the workplace and outside of normal work hours, the courts are being pressed to decide whether employees can reasonably expect these electronic communications to be kept private.

Earlier this year, the United States Court of Appeals for the Ninth Circuit decided that, under certain circumstances, employees have a reasonable expectation of privacy in text messages that were sent to other employees and non-employees during and outside of normal work hours from text-messaging pagers purchased and provided by the employer. See Quon v. Arch Wireless Operating Co., Inc. (9th Cir. 2008).

In Quon, city employees sued the city of Ontario and its text messaging service provider under the Stored Communications Act, 18 U.S.C.S. § 2701-2711 ("SCA"). Arch Wireless contracted with the city to provide wireless text-messaging services and provided the city with 20 two-way alphanumeric pagers, which were distributed to city employees, including the plaintiffs. The contract allocated each pager a certain number of characters, and the city was required to pay overage charges for any characters exceeding that number. The city did not have an official policy regarding text-messaging using the pagers; however, the city had a general "Computer Usage, Internet and E-mail Policy," which prohibited the use of city-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems operating on these computers for personal business. Following the distribution of the pagers, the city held meetings in which it advised employees that the use of the pagers was governed by the Computer Usage, Internet and E-Mail Policy, but that the content of the text messages would not be monitored if employees stayed within the usage limits, or if they reimbursed the city for any overage charges.

The city, quickly overwhelmed by the large amount of overage charges, obtained transcripts of the employees' text messages to determine whether the messages were for personal or business use. The transcripts revealed that one of the plaintiffs, Trujillo, routinely grossly exceeded his monthly usage limits, and that most of his messages were not work-related. Trujillo filed suit, alleging an unreasonable search of his text messages.

Deciding in favor of the city employees, the Ninth Circuit held that the city's informal policy of not auditing text messages if an employee paid the overage charges gave the employees a reasonable expectation of privacy in their messages, and that a search of the messages without the employees' consent was unreasonable. In so holding, the court recognized that employers' policies, if not well-drafted, can create a reasonable expectation of privacy in an employee's electronic communications, even when these communications are made using employer-owned technology.

Consequently, clear technology usage policies are crucial to regulate employees' expectations of privacy in their work environment. While balancing the employer's needs and the employees' privacy interests, such a policy generally should state that all computers, telephones, and other electronic equipment are the property of the company, and that the company reserves the right to monitor or access all employee Internet, e-mail, computer, voicemail, and telephone usage for any business-related purpose. Employers may also use the policy to instruct their employees of appropriate times when they are allowed to use office technology for personal purposes, if any, and advise them that any violation of the policy may result in disciplinary action, up to and including termination. The technology usage policy should address all of the various types of equipment used by the employer, and should give the employees notice of all the methods the company may use to monitor its employees.

After the company has drafted and implemented an electronic communications and/or technology usage policy, the employer must advise its employees that they are subject to specified monitoring practices. Advising employees that they are being monitored precludes the employees from developing a reasonable expectation of privacy in their electronic communications or technology use. At a minimum, the policy should be included in the Employee Handbook, and all employees should be required to sign an acknowledgment that they received and understand the policy, and agree to abide by it. It is also helpful to re-distribute a hard copy of the policy to employees on a regular basis.

If you have questions or would like assistance in drafting an effective Electronic Communications/Technology Usage Policy, please contact the Ford & Harrison attorney with whom you usually work, or the author of this article, Lindsay O'Brien, an attorney in our Jacksonville office, at lobrien@fordharrison.com or 904-357-2005.

Although having your deposition taken may not be anyone's favorite experience, there are several tips that can make you a more effective witness and make your deposition experience less stressful.

Prepare: Before you begin your deposition preparations, obtain advice from your attorney about the documents you should review and the steps you should take to refresh your recollection about the facts.

Tell the Truth: Telling the truth is the right thing to do, the easiest thing to remember, and the easiest thing to recite consistently.

Testify ONLY to Known Facts: An important distinction exists between what you "believe" happened and what you "know" happened. Known facts are based on what you have perceived with one or more of your five senses. Answers containing phrases such as "I think," "I guess" or "I believe," reveal you are guessing, speculating or making assumptions.

Listen to the Question: Listen carefully to the question. Ask for clarification if the question is unclear. Refrain from accepting an attorney's rephrasing of your prior answer unless you agree with every word of the new question posed.

Before answering questions about a document, make sure you have been given the entire document and take time to read the entire document, at a pace that is comfortable for you.

Remember that "I don't know" and "I don't remember" have different meanings. "I don't know" means you do not now know and never knew the answer to the question. "I don't remember" or "I don't recall" means you once knew the answer to the question but are currently unable to recall the answer.

If you cannot fairly answer a leading question "yes" or "no," ask for clarification or take the initiative by answering, for example, "I cannot answer the question with 'yes' or 'no,'" or "With the way you phrased that question, my answer is 'yes.'"

Sometimes lawyers shift between different times, places, documents or subjects, trying to create confusion. Ask for clarification about any uncertainties related to time, place or subjects.

Listen to the Objections: Your attorney may object that a question invades the attorney-client privilege or some other statutory or common law privilege (e.g., doctor-patient privilege, spousal privilege), and may instruct you not to answer. You should heed such instructions.

For objections that do not relate to privileges, such as objections to the form of the question, you will be required to answer despite the objection. Make sure you understand the question before answering.

Be Patient: Slow down. Take a moment after each question to digest the question and think about your answer. A brief pause between the question and the answer also allows time for your attorney to make objections.

Give Verbal Responses: Speak clearly and give verbal answers. Court reporters accurately cannot record nods of the head and may misinterpret an affirmative "uh-huh" for a negative "uh-uh." Court reporters also cannot record the intended meaning when a witness points or gestures instead of providing a verbal answer. "About this big," for example, cannot be accurately recorded.

Be Polite: Politeness projects the confidence and professionalism that demonstrate credibility. You should remain polite and courteous even if others around you do not.

Don't Volunteer Information! Never volunteer information when being questioned by the other side's attorney. Your attorney will have the chance to ask you any necessary follow-up questions later.

Don't Guess! Refrain from guessing or speculating about facts. If a lawyer pressures you to guess, simply respond, "I would not presume to guess."

Words to Avoid: Avoid absolute words such as "always" and "never," because every rule has an exception that may be used to discredit your answer. Use less absolute terms such as "typically" or "rarely." Avoid ambiguous words such as "few" or "many," as they may be misinterpreted to mean something different than you intend. Use more precise words or "bookend" your answer by giving a range (for example, "between ten and twenty") within which your truthful answer fits. Avoid words or phrases such as "honestly," "truthfully" or "if you want to know the truth," as they may erroneously imply that your answers which do not begin with these phrases are less than truthful.

Avoid Humor, Anger and Sarcasm: Avoid humor and sarcasm because they can easily be misinterpreted to mean the opposite of what you intended. Avoid anger because it is usually misinterpreted as something else and almost always clouds your ability to perceive the content of the question and recall the information necessary to answer truthfully.

Don't Be Evasive: Resist the temptation to evade uncomfortable questions. Instead, pause, think, take a deep breath and then answer the question honestly. Your attorney will have the opportunity, later, to ask follow-up questions.

Be aware of attorney tactics: Don't allow lawyer tactics, such as reminders that you are under oath, to cause you to change or qualify truthful answers. Answer the same question the same way as many times as necessary. Don't be fooled by an opposing attorney who claims to lack knowledge about the subject matter of the case or tries to come across as your best friend. Rest assured, the opposing attorney knows the case and is not your friend. Some lawyers use a pregnant pause at the end of your answer, or a silent stare, to convey the message that they expect you to say more. Don't break an uncomfortable silence by unnecessarily volunteering extraneous information.

If you have any questions about the issues discussed in this article, please contact the author, Colleen Rea, a partner in our Denver office, at crea@fordharrison.com or 303-592-8863 or the Ford & Harrison attorney with whom you usually work. •

F&H Solutions Group LLC is pleased to announce its partnership with LearnShare, LLC in the creation of an online classroom environment designed to provide a wide array of training and development opportunities using innovative, computer-based technology and methodologies. Our initial course catalogue includes some of the FHSG's most popular training DVDs including:

• Communication & Documentation
• Harassment Prevention
• Jury Duty -- Sexual Harassment Mock Trial
• Preventing Workplace Violence

FHSG University will offer flexible and secure 24/7 online access to meet the demanding schedules of training participants nationwide. Managers can also monitor the developmental tracks for their staff and make adjustments to coincide with their ever-changing business needs and objectives.

Participants will also get to choose from LearnShare's numerous online resources, including an online resource library, pay-per-view training and free eWorkshops. Watch for more details in the January 2009 issue of Management Update.