NEW ORLEANS—Employers must take steps to prevent and stop workplace discrimination and harassment, but they can’t interfere with employees’ right to work together to improve working conditions and join a union. So what can employers do when these rights conflict?
Title VII of the Civil Rights Act of 1964 requires employers to maintain a work environment that’s free from discrimination and harassment based on protected categories such as race, religion and sex. The National Labor Relations Act (NLRA) bars employers from interfering with, restraining or coercing employees who engage in concerted activity. And employers must honor the terms of a collective bargaining agreement (CBA) it reaches with a labor union on behalf of employees.
Balancing employee rights under the two acts is tricky, panelists noted during a Nov. 7 session at the American Bar Association’s 13th Annual Labor and Employment Law Conference.
Accommodation vs. Seniority
Panelists provided the following example of conflicting employee rights: Imagine that three Jewish employees who are relatively new to the company requested Saturdays off to observe the Sabbath. Under the unit’s CBA with a labor union, however, employees with seniority have the first right to take Saturdays off.
Typically, an employer must provide a reasonable accommodation for an employee’s sincerely held religious beliefs unless doing so would cause an undue hardship for the business. But what if accommodating the workers’ religious observance would force the employer to breach the CBA because the business can’t realistically give Saturdays off to workers with seniority, too? Should the employer provide the religious accommodation or honor the CBA?
[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]
According to the Equal Employment Opportunity Commission (EEOC), “Undue hardship [may] be shown if the request for an accommodation violates others’ job rights established through a collective bargaining agreement or seniority system.”
But employers shouldn’t just say, “We can’t do this under the bargaining agreement. Go pound sand,” said Sonya Richburg, labor and employment counsel for Coca-Cola Bottling Co. Consolidated in Charlotte, N.C.
She said employers should be prepared to show that they tried to make an accommodation for the workers’ legitimate request.
Brent Wilson, a management attorney with Elarbee, Thompson, Sapp & Wilson in Atlanta, noted that even if employers can defend their decision to deny a religious accommodation because it conflicts with the bargaining agreement, the EEOC is starting to impose a greater burden on employers to make reasonable accommodations.
He suggested that employers engage in a dialogue with the union rather than take a hard stance about denying all conflicting accommodation requests.
Employers may also want to discuss the matter directly with employees, so long as that doesn’t violate the bargaining agreement, he said. Perhaps the employer could rotate shifts, ask for volunteers to work on Saturdays or find another solution that might work for everyone.
“I think we all want to make sure that everyone is happy,” said Ryan Hagerty, a union attorney with Asher, Gittler & D’Alba in Chicago. “I don’t want a division in my bargaining unit.”
Imagine that in the same scenario posed by the conference panelists, when the three workers requested Saturdays off as a religious accommodation, a member of the bargaining unit with seniority rights made offensive comments about the workers’ Jewish faith and their request to take shifts that the CBA reserves for workers with seniority. Can the employer fire the senior employee for harassing co-workers and creating a hostile work environment?
“On one hand, [the Jewish employees] have the right to be free from harassment and to be free from discrimination based upon their religion,” Wilson said. But on the other hand, the senior employee is allowed to assert his rights under the CBA.
Under Title VII, employers may be liable for failing to prevent harassment if they don’t:
- Take complaints seriously.
- Promptly investigate complaints.
- Take corrective action, if necessary.
Employers should note that harassment becomes illegal if the conduct is severe or pervasive. “Petty slights, annoyances and isolated incidents, unless extremely serious, will not rise to the level of illegality,” according to the EEOC. “To be unlawful, the conduct must create a work environment that would be intimidating, hostile or offensive to reasonable people.”
Employers should consider all the facts and circumstances before acting, Hagerty said. Do supervisors generally tolerate comments such as those made by the senior employee? How long has the senior employee worked for the company? Did the employee make more comments, or was this an isolated incident?
“It’s very difficult to look at these cases in a vacuum,” Wilson said.