Issue of the Month

May 2001, Religion in the Workplace: Accommodation and Prevention of Harassment

While most employers recognize that a refusal to hire an individual because of a person's religion or creed is discriminatory, many do not recognize that a failure to reasonably accommodate an employee's religious obligations can also be unlawful discrimination. Federal and state laws require employers to accommodate the religious beliefs of employees.

Definition of Religion

The United States Supreme Court has ruled that religion, or religious belief, can be defined as, "a sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption . . . ." The EEOC has also recognized that beliefs that are sincere and deeply held, "with the strength of traditional religious views," will constitute "religious beliefs."

If an employer is uncertain as to whether an employee's belief or practice is religious in nature, the employer should generally respond to the belief or practice as if it does represent the practice of religion. In most instances, a belief or practice that is part of an organized religion, and one which the employee has consistently followed, will be regarded as a religious belief or practice.

Beliefs or practices based upon political or personal preferences do not, generally, meet the criteria of a religious belief or practice. In addition, a belief that is professed only when the employee is assigned an unpleasant task will not be found to constitute a religious belief since the employee is neither sincere nor consistent in that belief.

Employer Accommodation

In the retail setting, requests for accommodation most often occur in employee requests for scheduling or availability to work overtime hours. For example, an employee may request that he not be scheduled to work on Sundays from 8:00 a.m. to 11:00 a.m. because he attends church services during these hours. Assuming that an employee's beliefs or practices are religious in nature, the next issue for an employer is the degree to which it must accommodate the employee's beliefs or practices. The federal and state laws require reasonable accommodation for religious beliefs or practices when it conflicts with the employee's job requirements. However, there is no clear definition of "reasonable accommodation."

Religious beliefs or practices should be accommodated unless the employer can prove that it would impose an "undue hardship" upon the employer. It has been held that an employer must only bear "de minimis" (minimal) costs in its efforts to reasonably accommodate an employee. Requiring an employer to bear more than de minimis costs is an undue hardship. Generally, an employer is considered to suffer an undue hardship if it must do without a productive employee's services without a substitute or if it has to pay additional or extra pay to have another worker perform the employee's job. The most reasonable alternative is for employer to offer a sufficient, or reasonable, accommodation.

For example:

• An employer does not necessarily have to experience a direct financial cost to suffer undue hardship. When a licensed minister had been absent from his regular job to conduct a funeral on a day he was especially needed at work, his employer had to use supervisory personnel instead. The resulting inefficiency was an undue hardship, a court ruled, even though there was no direct financial cost.
  
  
• An Islamic security officer filed a charge with the EEOC alleging that the security firm for which she worked refused to allow her to wear her headscarf or "hijab", which she claimed was consistent with her religious belief. In a settlement agreement with the EEOC, the company agreed to modify its uniform policy to reasonably accommodate the sincerely held religious beliefs of its employees, as long as the accommodation does not impose an undue hardship on the company.
  
  
• An employee insisted on wearing an anti-abortion button with a photograph of a fetus because she had promised God to wear it. Co-workers complained, and her employer suggested that she wear it with a covering over it while at work. She refused and litigation ensued. The court ruled that the employer's suggested accommodation was reasonable, even though the employee disagreed.
  
  

The following suggestions should help employers comply with both federal and state statutory requirements, in addition to preventing any claims of religious discrimination.

1. An employer's duty to reasonably accommodate an employee's religious observances is not triggered until the employee provides some notice of his/her special religious practices. However, some courts have found that employers who know of an employee's religious beliefs at the time of hiring have sufficient notice to require a duty to accommodate.
   
   CAUTION: An employer that questions prospective employees about availability for overtime and weekends should also inform the applicant that it has a duty of reasonable accommodation. Failure to do so could be discriminatory because it may deter individuals with particular religious beliefs from applying for the job.
   
   
2. When an employer is notified of a particular religious observance, the employer should not automatically deny the request. Instead, the employer should investigate the request and determine what actions would need to be taken to accommodate the employee's needs.
   
   CAUTION: An employer that denies a request because it is not based upon a religious belief or practice (i.e., the request is made only when the employee is assigned an unpleasant task) should attempt to document the reasons for the denial.
   
   
3. The employer should explore all options for accommodation. Suggested options include flexible scheduling, voluntary employee substitution or transferring to a position in which accommodation is feasible.
   
   
4. If an employer determines that the costs for accommodation will be more than de minimis, the employer may choose to enlist the employee's cooperation in reaching some type of compromise. However, an employer is not required to bear any costs in excess of de minimis costs.
   
   
5. It is important to note that an employer need only sustain de minimis costs to accommodate an employee and accommodations that violate a collective bargaining agreement are not required. If an employer cannot reasonably accommodate an employee, that employee's request can be denied and the employee can be told to do the job or be subject to discharge.
   

Religious Harassment

An emerging area of litigation is the issue of religious harassment. Most religious harassment cases involve supervisors or co-workers who demean an employee's religious beliefs or practices through insults or other belittling conduct. Employers who know of such behavior and do not take measures to stop it can be found liable, just as they would in a case of alleged sexual or racial harassment. Increasingly, however, employers are being asked to balance the demands of those who seek to practice their faith on the job with those of the employees who are offended by such expression.

For example:

• A Jewish employee who had heard "jokes" about the Holocaust and derogatory comments about Jews made by supervisors and co-workers was ruled a victim of religious harassment.
  
  
• But in another case, a Jewish employee's supervisors had made negative remarks about Menachem Begin and the Israeli position in the Arab-Israeli conflict. The court found that the comments were political opinions and did not represent harassment.
  

A suggested approach to dealing with the discussion of religion in the workplace would be for the employer to apply standards similar to those set forth in the sexual harassment cases. Employers should determine:

1. The frequency of the conduct;
   
2. The severity of the conduct;
   
3. Whether the conduct was threatening or humiliating; and
   
4. Whether the conduct interfered with work performance.
   

Employers must act with caution in this area. A legitimate, non-discriminatory policy prohibiting employees from discussing non-work-related issues that other employees find offensive presents the problem of determining just what is offensive. Employers clearly have the right to limit conduct that interferes with work, but banning any discussions of religion in the workplace while allowing discussion of other non-work-related issues would almost certainly violate Title VII of the Civil Rights Act of 1964.

Conclusion

Under state and federal law, it is unlawful for an employer to discriminate against an individual with respect to employment on the basis of religion. To prove that an employer's actions were discriminatory, an employee must provide evidence of the alleged discriminatory act. If the employee's evidence is sufficient to support the claim of discrimination, an employer must then present evidence that indicates the business necessity or legitimate reason for the decision.

Clear documentation of the employee's work history and job performance is vital in defending against a discrimination suit. If the employer can provide evidence of nondiscriminatory reasons for its conduct, an employee has one last opportunity to sustain his/her claim by alleging that the employer's reasoning is a pretext, or excuse, for the real discriminatory reason.

If you have any questions, email educational services, or call (414) 423-1330.