Monday, March 10, 2014

Shaking Hands. Or Not.

NewimageThe refusals, for religious reasons, of many men to shake hands with women has generated more than a little heat in the political arena over the years, for example, whether a  Jewish candidate for the European parliament or an Iranian's refusal to shake Kate Middleton's hand. The NY Times Ethicist weighed in on the topic in 2002 suggesting that the appropriate response of an offended woman was to tear up a contract she had just signed. For Randy Cohen, it was OK not to shake hands because of religious belief, but the real estate broker who did so should have avoided discriminating on account of sex by not shaking hands with anyone.

Then there's the EEOC, which issued an Informal Discussion letter in 2010, which viewed the question as one of "undue hardship" and suggested an inquiry into "the actual disruptions that have occurred" when a new employee refused to shake hands with a woman. It also advised the employer to consider "whether the employee implements his "no handshake" practice in a neutral manner" or in a way that is hostile and demeaning to women. Which neatly dodges the question of whether refusing to shake a woman's hands. no matter how politely done, is inherently demeaning.

A recent blog posting at Seyforth Shaw raised the issue as a not-so-hypothetical hypothetical in which, at the end of an interview, a candidate refused to shake hands with the females interviewing him, "stating that he does not engage in that practice" but not invoking a religious reason.

One obvious question was whether the interviewers should infer a religious motivation -- absent that, refusing to hire a candidate who offended half the staff would not be problematic. In the hypo, there were indications on religious belief on the resume, which -- together with other signals -- seems sufficient to apprise the employer of his (probable) religion. 

But could the employer ask? Inquiries into religion are obviously problematic, but might be permissible if the candidate is viewed as seeking an accommodation -- "excuse me from workplace etiquette norms because of my beliefs." Still, probably not advisable.

Assuming the employer is on notice of the religious basis of the refusal, and the candidate would otherwise be the top choice, what next? The blog suggests examining his "overall demeanor" as it relates to women: was he respectful or did he display any "sex-based animus."  OK, but this "examination" is presumably triggered by his religiously-motivated practice, and it's the practice that is raising concerns about whether he will treat women in the workplace (or customers and vendors) appropriately. The blog goes on to ask about the position to be filled -- whether the successful candidate will work alone or in teams, whether the job is a sales position, etc.  The goal is ask "whether the candidate's selective handshaking would cause any measurable impact in the workplace."

There's a noticeable lack of doctrine in the blog discussion, which may not be surprising because the scenario raises issues at the intersection of Title VII's prohibition on religious discrimination and its requirement of reasonable accommodation, not to mention the obvious tension between privileging religious observance at the potential risk of impairing gender equality.

Some of the blog's advice seems sound but rarely useful: if the job is a sales one, and someone who shakes hands only with men can't close half the deals, turning him down seems fine.  Religion, needless to say, is subject to the bona fide occupational qualification exception and, however narrow that defense is, this would seem to qualify.

But that's a kind of easy observation because it's very unlikely that bfoq requirements can be met in these kinds of cases. And, further, the internal political problem probably arises from fear that the candidate will treat his female co-workers disrespectfully, not because of potential problems with outsiders. That fear may be more or less rational -- religious worldviews about the proper place of women that drive the no-touching norm may well suggest an antiequality attitude that could infect the workplace.

But Title VII may bar drawing such an inference -- no matter how rational it might be.  To allow employers to do shift the focus from the individual by treating him or her as a member of a disfavored religion, whether Muslims or observant Jews.  And I use the word "her" advisedly because it's not just males who might refuse to touch members of the opposite sex, which makes the sex equality issue even more complicated.

What about the possibility that the candidate should be viewed as seeking a reasonably accommodation for his religious practice?  We all know that the bar's pretty low here for the employer: if there's more than a de minimis cost, no duty to accommodate. And surely this situation could be framed as involving more than de minimis costs -- in morale if not dollars.  But the problem with this is that the employer seems to be discriminating on the basis of religion, not merely asking for an accommodation.  And, as suggested, discrimination can be justified only by the bfoq defense.

That suggests a path out of the dilemma, but scarcely one that will be appealing to most employees: offer the candidate the job but require him to shake hands with everyone. No discrimination and no accommodation. The fly in this particular ointment is that the possibility of being sued over the decision has just skyrocketed, and maybe the courts would find the accommodation to be acceptable. After all, most workplaces don't feature regular handshaking marathons.

As is often the case when rights clash, there seem no good legal "answers."

CAS

 

 

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