Federal Court Permits Perceived Religion Claim To Proceed

Reasoning that discrimination based on an employer’s perception of an employee’s religion is no different than discrimination because of an employee’s actual religion, the United States District Court for the Eastern District of Michigan recently permitted an employee’s perceived religion discrimination claims to proceed to trial. Kallabat v. Michigan Bell Tel. Co., No. 2:2012-cv-15470 (E.D. Mich. June 18, 2015).

Basil Kallabat began working as a service technician for Michigan Bell Telephone Company (“Bell”) in 2000. By 2004, Kallabat — a dark-skinned Iraqi — was a customer service specialist. In a lawsuit filed in federal court, Kallabat alleged that he was treated differently than other employees and subjected to a hostile work environment because of what others perceived as his religion. Kallabat, for instance, claims that he was unjustifiably disciplined and that coworkers vandalized his property.

A union employee, Kallabat twice filed grievances when he was disciplined. Both grievances were denied. Kallabat then filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging discrimination on the basis of national origin, color, and religion. On the latter issue, Kallabat claimed that Bell treated him differently because the company and certain of its employees thought he was a Muslim.

Bell moved for summary judgment on all of Kallabat’s claims. On the religious bias claim, Bell argued that Title VII does not prohibit discrimination based on perceived religion. Kallabat countered that he produced sufficient evidence of discrimination. The court credited Kallabat’s evidence, which included examples of disparate discipline, as well as evidence that a co-worker said that Kallabat should not work on certain jobs because he is Arab and referred to Kallabat as Taliban. When that same co-worker was promoted, Bell required Kallabat to report to him. On another occasion, when the co-worker said that Kallabat looked like he was wearing a “topi” (a skullcap worn by Muslim men for religious reasons) other workers laughed at Kallabat. Kallabat also showed that Bell’s bathroom had graffiti depicting the 9/11 attacks with a caption stating that Kallabat was learning how to fly. When Kallabat complained, Bell’s manager said that Kallabat was oversensitive, emotional, and unable to take a joke. If that was not enough, Kallabat also presented evidence that he was called a “f’ing rag head.”

While Bell cited case law stating that Title VII does not recognize perceived religion claims, the court noted that the Sixth Circuit (the appeals court encompassing the Eastern District of Michigan) has not weighed in on the subject. Ultimately agreeing with Kallabat, the court referred to the Third Circuit’s decision in Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002), where the appeals court stated: “[I]magine a Title VII discrimination case in which an employer refuses to hire a prospective employee because he thinks that the applicant is a Muslim. The employer is still discriminating on the basis of religion even if the applicant he refuses to hire is not in fact a Muslim. What is relevant is that the applicant, whether Muslim or not, was treated worse than he otherwise would have been for reasons prohibited by the statute.”

The court found that a reasonable jury could find that the incidents are evidence of discrimination based on the perception that Kallabat was a Muslim. The court also denied summary judgment on Kallabat’s color and national origin discrimination claims.

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