Disparate Treatment Discrimination

Disparate treatment is an overt form of discrimination, involving unequal treatment on the basis of an employee's religion. An employer with a policy of refusing to hire or to promote (or only hiring and promoting) members of a particular religion would commit this form of discrimination. Some employers whose business purpose is religious in nature may be permitted to require certain employees to adhere to a particular faith. Courts will look closely, however, at the legitimacy of the employer's requirement for the position.

Disparate Impact Discrimination

A more subtle form of discrimination arises through disparate impact. An employer discriminating in this way has no express policy for treating one or more religious groups unequally. Instead, a policy that makes no mention of a particular religion still functions to discriminate by affecting only certain religious groups. For example, a rule that forbade men from wearing any form of hat or other clothing on their heads during the business day might conflict with the dress rules of a particular religion that requires headwear be worn in public.

Hostile Work Environment Discrimination 

The third form of discrimination occurs when the employer maintains (or allows) a hostile environment for employees of particular faiths. Typically, this arises where co-workers harass an employee on the basis of his or her faith, to the point of creating an abusive or intimidating work environment. The harassment must be severe or pervasive in order to constitute discrimination under a hostile work environment theory. Thus, a simple disagreement over religious principles would probably not constitute unlawful harassment. Severe insults or threats, or continuing words and actions meant to harass or intimidate an employee on the basis of religion, however, may cross the line of lawful conduct. The employer is culpable if it knew or should have known of the illegal harassment.