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With recent events such as the Arab Spring and the activities of ISIS in Iraq, it is possible that tensions between Muslims and non-Muslims could be on the rise. But what happens if you suspect that your faith is causing you problems at work? One recent case involving a Muslim professor, Shafer v. The American University in Cairo, highlights several keys considerations in employment law claims for religious discrimination. And, critically, this case is a perfect illustration of how a claim for retaliation for reporting religious discrimination may be much better than the actual religious discrimination claim that prompted the complaint.
Under both Title VII of the Civil Rights Act of 1964 and the Ohio Unlawful Discriminatory Practice Statute, R.C. § 4112.02, religious discrimination is unlawful. Under these antidiscrimination laws, employers cannot harass employees based on their religion and must reasonably accommodate their employee’s religious beliefs and practices, unless making the requested accommodations would create a demonstrative unreasonable burden on the employer. However, courts generally require more than one example of offensive conduct to make out a case of religious discrimination. Nonetheless, the law protects any employee that makes a good faith claim of discrimination, even if inaccurate, from retaliation by his or her employer.
In Shafer, the plaintiff was a female art professor who decided to convert to Islam during her employment at The American University in Cairo (“AUC”). During her employment, Shafer made allegations that the Dean of her department made a comment referring to “veiled cars” which Shafer took to be an offense against female Muslims, like her who wear a hijab, and sitting her next to an “anit-religion” non-employee at a dinner.
After Shafer utilized an internal grievance procedure at AUC to complain about a demotion, the anticipated role of the Dean in her potential application for tenure, and a general hostility she perceived from the Dean, the governing body found in favor of the Dean. Shafer appealed the decision and also filed a charge with the Equal Employment Opportunity Commission (“EEOC”). Subsequently, the Dean made an announcement in a meeting attended by Shafer and other faculty that he was recording the meeting. When Shafer objected, according to her testimony, the Dean yelled and stated that he was advised to record the meeting by counsel because Shafer was suing the University. During this meeting, Shafer alleges that she was banned from participating in committees.
Shafer then filed suit in federal court without hiring an employment discrimination lawyer. Likely because there was evidence in the record that Shafer did not cite, the court looked only at the “veiled cars” and seating assignment as the only evidence of religious discrimination, and found this evidence insufficient:
Ferguson’s comment about photographing “veiled cars” offended Shafer. She admitted, however, that she never heard him say anything else that she viewed to be a slur against Muslims, Muslim women or Muslim women who wear veils. …At worst, Ferguson’s comment was a “stray remark” not illustrative of discriminatory intent. “[T]he more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination.” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007). Courts typically look to four factors to determine whether a remark is a “stray remark:” “(1) who made the remark . . . ; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark . . . ; and (4) the context in which the remark was made.” Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Ferguson was a decision-maker who ultimately took an adverse action against Shafer, so the first factor cuts in Shafer’s favor. The other three, however, weigh heavily in favor of finding that Ferguson’s comment was a stray remark. He made the comment off-hand, at the end of a meeting, during casual conversation, … the comment came months before any alleged adverse action and was not explicitly offensive. Shafer concedes that she has no evidence that Ferguson intended the remark to be a slur against Muslim women or that Ferguson ever made a similar comment… In the absence of other evidence or similar comments, Ferguson’s poor choice of words is a “stray remark” that does not tend to show discriminatory intent.
Second, Shafer complains about being seated next to Wells at a dinner party. For purposes of this summary judgment motion, the Court accepts as true Shafer’s assertion that Wells told her at dinner that she was doing a bad job with AUC’s art gallery because she was “conservative religiously.” … Although Wells was not an AUC employee, the Court accepts Shafer’s assertion, as it must at this stage, that Ferguson was aware that Wells was antireligious and “promoted” artists who were anti-religious. … Nevertheless, Shafer has no evidence that Wells was biased against Muslims, and no evidence that Ferguson was aware of any bias against Muslims that Wells may have held.
Although the Court found some of Shafer’s other claims to be lacking, it saw these particular allegations as enough to warrant a decision by a jury as to whether Shafer was retaliated against for engaging in protected activity by complaining about discrimination. The Court found that this type of behavior, both announcing the recording of a meeting and removal from committees was enough to possibly support a jury’s conclusion that a reasonable employee would be deterred from making a charge of discrimination if faced with similar consequences. The court held on this point:
Although Shafer has not created a genuine question of fact whether she was discriminated against, she has created a genuine question of fact whether she was retaliated against for her complaint of discrimination. Courts evaluate retaliation claims under Title VII … “under a three-step burden-shifting analysis.” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). First, the plaintiff must make out a prima facie case of retaliation. Id. If she succeeds, the defendants “must then ‘articulate a legitimate, non-retaliatory reason’” for the materially adverse action. Id. (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)). Finally, the plaintiff must prove “that ‘a retaliatory motive played a part’” in the adverse action. Id. (quoting Sumner v. U.S. Postal. Serv., 899 F.2d 203, 209 (2d Cir. 1990)).
… Shafer’s complaints of religious discrimination to AUC’s Senate Grievance Committee and the EEOC constituted protected activity of which AUC was aware. Shafer alleges three acts of retaliation. First, AUC did not grant her tenure.34 Second, Ferguson attempted to record an Art Program faculty meeting that she attended in September 2011. Finally, Shafer was not permitted to serve on faculty committees in the Art Program.
Defendants allege that Shafer’s removal from committees and the recording of the faculty meeting are not adverse employments actions. They may well be right – but the standard for retaliation relies on the presence or absence of a “materially adverse action,” which is distinct from an “adverse employment action.” White, 548 U.S. at 62-63 (citing 42 U.S.C. §§ 2000e-2 and 2000e-3). …Courts analyze whether an action is materially adverse “objectively, based on the reactions of a reasonable employee. But ‘context matters, as some actions may take on more or less significance depending on the context.’” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 25 (2d Cir. 2012)…. The sine qua non of material adversity is whether “‘it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Id. (quoting White, 548 U.S. at 68).
In context, construing the evidence in favor of the non-moving party, a reasonable jury could find that Ferguson’s decision (even though apparently based on advice of counsel) to record the PVA faculty meeting constitutes a “materially adverse action” under White. By attempting to record the meeting and doing so expressly because Shafer filed an EEOC complaint, Ferguson sent a clear signal to Shafer and to the other faculty members present that complaints about discrimination will be met with hostility and will turn the complaining faculty member into a pariah who cannot be trusted to faithfully report what happened even in a pedestrian faculty meeting. That sort of hostile reaction to an EEOC complaint is exactly the sort of reaction that could dissuade an employee in the future from attempting to vindicate his or her rights not to be discriminated against.
Although many professors might celebrate being barred from committee work, in the context of an assistant professor applying for tenure at a school that weighs 33 percent of the tenure decision on service to the school, preventing Shafer from participating in faculty committees could also dissuade others from engaging in protected activity. … Moreover, the committees from which Shafer was excluded included one that was entrusted with “a complete revision of the curriculum.” Preventing a professor from contributing to the shape of her department’s curriculum, particularly when participating in such a weighty matter might have contributed to the strength of her tenure application, is sufficiently punitive that it could dissuade a reasonable person in her shoes from engaging in protected activity.
As you can see, Shafer lost her religious discrimination claim, but was able to move forward against her employer simply because there was evidence that the employer chose to take adverse actions against a complaining employee. And, the adverse actions did not have to be wrongful termination, demotion, or even a cut in earnings. Thus, the adverse treatment that supports a claim for retaliation is easier to prove that the adverse employment action needed to prove religious discrimination.
The last note to take away from Shafer is that it is important to seek the advice of an attorney before going it alone in the legal process. Some of Shafer’s arguments were dismissed because she failed to point to certain evidence in the record. An attorney may have been able to help Shaffer build a better case or flesh out additional information that could have better supported her claims. If you think that you are experiencing discrimination based on religion or retaliation after reporting what you think is religious discrimination, seek the help of an attorney immediately.
If you feel that you are being discriminated or harassed based on your religion or religious beliefs or that you were wrongfully terminated because of you are Jewish, Muslim, Mormon, Hindu or any other religion, the best course of action you can take is to call the right attorney at 866-797-6040 to schedule a free and confidential consultation. At The Spitz Law Firm, you will meet with a religious discrimination attorney, who will be able to tell you what your legal rights are and the best way to protect them.
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