Accommodating Religious Beliefs in the Workplace

The tragic events of September 11 have undoubtedly led many of us in the HR community to take a renewed look at what we can do to ensure that our workplaces are free of harassment against our Muslim and Arab-American employees on the basis of national origin and religion.[1] While we are doing this, its also a good idea to refresh ourselves on a somewhat related, but different obligation under Title VII*the requirement that we accommodate the religious beliefs and practices of our employees. This is especially timely at this time of year, as we enter into the Ramadan, Hanukkah, Christmas, Kwanzaa, and etc. seasons.

This topic frequently generates a good deal of discussion in my training classes with managers. I often receive questions such as:

1. Do I have to hire someone if they tell me that because of their faith they cannot work on Saturdays, our busiest day?"

2. "I am afraid if I give employee "A" Sunday afternoon off to attend services, employees "B," "C" and "D" will also want off to attend services and I will lose most of my staff for that day. Also, what do I do about employees "E" and "F," who I know do not like to work Sundays because they want family time or want to watch football? I am afraid if I make an exception for one person, it looks like I will be playing favorites."

3. "A group of employees want to use my conference room every Wednesday for lunchtime bible study * what should I do?"

4. "An exempt employee just informed me that she cannot work after sundown during Ramadan because she has to cook for her family and attend services nightly at her mosque. We are very busy during this month, and all of the employees holding her position in this department work until 9:00 or 10:00 every night during this time. It is really going to put us in a bind if she leaves at 5:00 p.m. everyday."

5. "One of my male employees stopped shaving several months ago and is now sporting a very unkempt long beard. He has frequent customer contact. Our dress code requires a 'neat and clean appearance.' When I discussed the subject with him, he told me that his new faith forbids him from shaving. His job requires him to have frequent customer contact within a very conservative community and I am afraid his appearance will turn off our customers. We would have never hired him if he had looked that sloppy when he applied for employment. Also, we just acquired an IT division in which many of the employees have sloppy goatees. If I accommodate his request, what do I do about the other's facial hair*how should I handle this?"

6. These are often hard issues for employers. This paper discusses general principles surrounding a private[2] employer's duty to accommodate, as interpreted by various courts around the country. Keep in mind that the application of these principles is extremely fact-sensitive in nature, and a court having jurisdiction over your workplace might reach a contrary conclusion. Because of this, employers are urged to consult legal counsel versed in these issues before deciding to proceed on accommodation issues. What Are Employers Required To Do? An employer is required to make reasonable accommodations to an employee's or prospective employee's religious observances or practices where accommodation can be made "without undue hardship on the conduct of the employer's business."[3] If the employer fails to satisfy this requirement, an employee may be able to make out a case of religious discrimination. To prove this, an employee has to show that: (1) he or she has a bona fide belief that compliance with an employment requirement is contrary to his or her faith; (2) he or she has informed the employer about the conflict; and (3) he or she was discharged because of his or her refusal to comply with the employment requirement.[4]

WHAT IS RELIGION?

Under Title VII religion is defined very broadly to include "all aspects of religious observance and practice, as well as belief."[5] This could include the following:

• moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views (the EEOC has taken the position that vegetarianism might rise to this level);

• beliefs that are not tied to any recognized faith as long as they are held with the strength of traditional religious conviction ;

• beliefs that are not accepted by the religious group to which the employee belongs;

• beliefs tied to atheism; and

• beliefs recently acquired due to conversion, etc. that the employee did not hold at the time of the hire.[6]

CONVERSELY, "RELIGION" DOES NOT COVER THINGS SUCH AS:

• non-religious political views;

• association with various hate groups, such as the Ku Klux Klan;

• personal preferences based upon non-theological bases, such as a personal choice deduced from economic or social ideology (e.g. a Jewish employee who did not want to accept a transfer to a part of the country lacking an established and well-organized Jewish community).

WHAT DO "REASONABLE ACCOMMODATION" AND "UNDUE HARDSHIP" MEAN?

To reiterate,the concepts of reasonable accommodation and undue hardship are intensely fact specific and will be determined on a case-by-case basis. Generally, a "reasonable accommodation" is one that eliminates the conflict between employment requirements and religious practices."[7] Luckily, courts have, for the most part, uniformly held that employers are not required to provide the employee with the specific accommodation requested. It also appears that employers fare better in the courts where they can point to reasonable efforts to accommodate an employee's request. This includes pointing to specific examples of why the requested accommodation was not feasible (as opposed to mere speculation of the same), and suggesting alternative possible accommodations that would have eliminated the conflict at issue. Likewise, courts often require that the employee make some attempt to cooperate with an employer's attempt! at accommodation so that an accommodation is not impossible to reach, and are generally reluctant to require an employer to have to provide an "on the spot" accommodation to an employee's request.[8]

1. For an excellent discussion of this topic, see Mohammed, You Too Are My Brother: Preventing Backlash Against Muslim and Arab-Americans in the Workplace at www.epexperts.com.

2. Public employers and/or employers with unionized workforces have many more issues to contend with, which are beyond the scope of this paper. These employers should contact EPS for further assistance with this topic.

3. 42 U.S.C. 2000e(j).

4. Some Circuit courts have required that an employee show that he or she suffered an adverse employment action (i.e. not hired, fired, not promoted, disciplined, suffered a loss in pay or benefits, etc) to make out a failure to accommodate claim. See e.g., Ali v. Alamo Rent-A-Car, Inc., 246 F. 3d 662 (4th Cir. (Va.) 2001), cert. denied, 2001 WL 649093 (2001). In this case a Muslim employee was told to stop wearing a headscarf to her customer service position. She refused to do so, and was transferred to another non-customer service position. She conceded she did not suffer an adverse employment action, and her case was dismissed. The Fourth Circuit Court of Appeals upheld this dismissal, and the United States Supreme Court refused to review the same. Bear in mind that if the employee had simply plead that she suffered some sort of adverse action from her transfer (less pay, less desirable job duties or hours of work, reduction in benefits, less responsibility, less opportunity for advancement) the result may have very well been different.

5. 42 U.S.C. 2000e(j).

6. It's generally no defense for an employer to say " they never told me about this belief at the time of hire." However, if the matter progresses to litigation, your counsel may explore this issue in challenging the sincerity of the employee's beliefs.

7. Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986).

8. See Hussein v. the Waldorf-Astoria, 134 F. Supp. 2d 591 (S.D. N.Y. 2001). Here the Court held that the employer was not required to comply with a banquet waiter's on the spot demand to let him work when he showed up for his shift with beard growth, and when asked about it said "it's part of my religion." Notably, the employee had worked for the hotel for 14 years and had always been clean-shaven prior to this point.