By: Claudia D. Orr
You might recall “Onionhead”, a 1958 comedy set on a U.S. Coast Guard ship during World War II that starred Andy Griffith. How can that be a religion you ask? It is not. But the Onionhead discussed in this article is a religion, at least according to a federal district court in New York. I’m not sure whether the facts of this case, or the case law referenced by the court, is more bizarre. But, what is clear is that some fairly peculiar beliefs may be “a religion” for purposes of Title VII.
Normally, claims of religious discrimination are based on the employee’s beliefs. But the 102-page opinion in EEOC v United Health Programs of America, Inc is primarily about the alleged “religion” of the “C Suite” executives that was forced upon the company’s employees. Let’s look at what happened EEOC v United Health Programs of America, Inc. and Cost Containment Group, Inc.
The defendants operate a small company that provides discount medical plans to groups of individuals and other for-profit and non-profit companies. Around 2007, CEO Robert Hodes and COO Tracy Bourandas noted the company culture was deteriorating and decided to hire Hode’s aunt, Denali Jordan, to improve the environment. Jordan had developed a program she called “Onionhead” which she was to employ in their workplace.
The purpose and nature of the Onionhead program was in dispute. The defendants described it as a conflict resolution tool whereas the Equal Employment Opportunities Commission (“EEOC”)[and the former employees who intervened in the case] argued it was a system of religious beliefs and practices.
Onionhead was originally targeted to help children with disabilities understand and communicate emotions, but it was “expanded to assist people of all ages with addiction, abuse and domestic violence, family issues, marital problems, eldercare, death and dying, the full spectrum of autism and other cognitive disabilities or illnesses (such as Alzheimer’s), and to generally develop better problem-solving and communication skills.” Onionhead used tools, many of which describe emotions, such as cards, pins, magnets, journals and “a Declaration of Virtues of Empowerment”. A few years after Onionhead was created it was merged into a program called “Harnessing Happiness” to make it more suitable for use with adults.
The EEOC, arguing that Harnessing Happiness was a system of religious beliefs and practices, relied, in part, on emails between Jordan and others within the company involving discussions about God, spirituality, demons, divine destinies, blessings, miracles, etc. Hodes was known to reference the program as “higher guidance teachings”.
When Jordan visited the office, she noted a lot of disharmony, and attempted to create more “camaraderie and unification” in the staff. She started coming every month or two and was paid handsomely for her work. The Onionhead workshops involved prayers and were more or less mandatory. Employees were asked to share personal information about themselves, and Jordan would provide advice. Two of the employees testified they were encouraged to leave their husbands. Apparently candles and incense were burned to “cleanse the workplace” and overhead lighting was discouraged “to prevent demons from entering the workplace through the lights”. Witnesses also testified that there was chanting and prayers.
By now, even the most novice human resources employee is asking “in what world would this seem like a good idea”, right? It gets worse. Some witnesses testified that when they complained about Onionhead being in conflict with their own beliefs, they were fired. Others testified that when they strayed from Onionhead beliefs, they were given progressive discipline.
To be fair, the defendants argue they were just interested in a more harmonious workplace, that it was voluntary and that the disciplinary actions and discharges were for other legitimate reasons. However, the court recognized that the fact that the individual purportedly holding the beliefs denies that it is religious in nature is not dispositive.
The court had to decide whether this was a religion. If it wasn’t, then Title VII would not be implicated. So the court began comparing Onionhead to other practices found to be “religions” by other courts, and how “religious in nature” has been described.
The EEOC guidance defines “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief…” The Supreme Court has indicated that a religious belief often involves ultimate concerns, but they need not be “acceptable, logical, consistent, or comprehensive to others.” The Second Circuit framed the issue as whether the beliefs are, in the believer’s own scheme of things, religious? But it also cautioned that courts need to be “mindful to ‘differentiat[e] between those beliefs that are held as a matter of conscience and those that are animated by motives of deception and fraud”.
That’s the rub, right? I once defended an EEOC charge brought by someone who was self described as the Hindu who turned Baptist after a spiritual journey involving piercings [but who sold liquor for a living]. She claimed she couldn’t work on Saturdays because of church services. The truth was, those same services were held on Sunday and she just wanted Saturday nights off to work at a different bar with better tips. And, recently a healthcare industry client asked whether an employee could refuse a flu shot because of her religious beliefs (which were not shared by the employee’s church).
With the upcoming season of various religious holidays, let’s look at some sincerely held beliefs found to be “religious” so we can see just how broadly this net can be cast. One family’s belief that social security numbers were a device of the Antichrist that may prevent their children from entering heaven was determined to be religious in nature, but so was Transcendental Meditation with its mantras and chanting. Another couple refused to have their children inoculated for school because their beliefs required all persons to live in harmony, as part of one intimate universe, since god is pervasive everywhere… and immunization interferes with the health of an organism was found to be religious in nature. Another plaintiff’s “belief in the power of dreams” was characterized as “a moral and ethical belief” sufficient to be religious. But, apparently, the sky is the limit since another court rejected “earth day” and another rejected “nuclearism” …which was argued as the “new source of salvation”, focusing “on the acceptance of nuclear weapons as sacred objects” since this was merely a “political judgment, not religious belief.”
The bottom line is that when an employee requests an accommodation for their religious beliefs, you shouldn’t be so quick to reject the bizarre because it doesn’t line up with more traditional views. Some fairly strange ideas have been found to be “firmly held religious beliefs”. If you need assistance in deciding how to respond, consult with an experienced employment attorney, such as the author.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full-service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863. For more information go to: http://www.plunkettcooney.com/people-105.html.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. November 2016.