Of the various types of discrimination employers have known they must not commit for 50 years, discrimination based on religion remains one of the most challenging. Unlike race, gender, age and similar “immutable” characteristics, religion is more than what someone is; it is also what someone practices and believes. Therefore, Title VII of the Civil Rights Act of 1964 sometimes requires that employers treat people differentlybecause of their religion. In further contrast, one does not “preach” an immutable characteristic by trying to convince others to change race, age, or gender, but many feel comfortable, or even obligated, to share religious views with others and possibly even try to convert them. The challenge of accommodating religious practices without fundamentally altering the workplace keeps employers and their HR teams up at night. Here are some practical tips for understanding and handling these sometimes conflicting challenges.
First, what is a religion? In addition to the major world religions, the United States Equal Employment Opportunity Commission (“EEOC”) notes that Title VII also protects “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Both theistic and non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views” are usually protected, but the fact that a belief might be “strongly held,” such as a political, social or economic view, does not confer protection unless it is an “ultimate idea” about “life, purpose and death.” Employers should train supervisors and anyone interviewing applicants to be aware of these distinctions and not to ask questions about applicants’ religious beliefs or practices.
Second, what is an “accommodation” of a religious belief under Title VII? Put simply, it is a requested change in work rules or obligations by an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement. A “reasonable” accommodation is one that does not impose an “undue hardship,” defined as one that imposes more than a minimal cost on the employer, based on the nature of the duties of the requesting employee, the impact on co-workers, the number of requesting employees, and the type of workplace. Employers should evaluate requests for accommodation by weighing financial or operational hardships that likely will result, not simply reject a request out of hand. A request by a single employee to leave early one day a year to attend a religious service is easier to accommodate than a request by half of a department to leave once per week at the same time. An employee of a defense contractor who objects on pacifist grounds to the building of offensive weapons systems, or an employee of a food processing plant who objects on religious grounds to the eating of pork cannot require the employer to accommodate such beliefs, no matter how sincerely held, if doing so would require it to change its fundamental business structure. Employers also are not required to violate seniority systems or the rights of other employees in order to accommodate an employee who requests an accommodation.
Employers also must be careful not to discriminate or retaliate against employees or applicants based on their perception of a need for an accommodation. To state a claim based on failure to accommodate, an employee need only show a sincere religious belief that conflicts with a job requirement, that the employer was aware of the conflict, and the employee was disciplined for failing to comply with the conflicting job requirement. InEEOC v. Abercrombie & Fitch, the Supreme Court ruled that if the employee’s need for an accommodation was a motivating factor in an employer’s decision not to offer an employee a job, an employee may state a claim even if she did not explicitly notify the employer of her need. In that case, a Muslim job applicant wore a head scarf to her interview. A&F’s “Look Policy” did not permit “caps” to be worn by employees. Although the applicant did not say, “I need to wear a head scarf as a religious accommodation,” the evidence showed that during A&F’s internal consideration of her application, it formulated the belief that she wore the scarf to fulfill religious obligations. The Supreme Court rejected the argument that the applicant’s failure to request an accommodation relieved it of the obligation to provide one. It ruled that desire to avoid having to provide an accommodation is sufficient evidence of discriminatory motive.
How else might an employer unintentionally run afoul of the Abercrombie rule? Suppose an applicant is presumed to be of a certain religion that prohibits working on the Sabbath. If the employer refuses to hire the applicant because of the belief that he or she would request a schedule accommodation, this likely would result in a finding of discrimination. Similarly, if a company prohibits facial hair in its dress code, an applicant with facial hair could not be rejected based merely on the suspicion that he will request accommodation. Instead, such an employee (if otherwise qualified) should be told of the policy in a neutral, non-discriminatory manner. If the employee then indicates that he needs an accommodation, the request should be evaluated by analyzing the request and whether it would create an undue hardship to accommodate it. Certain practices, such as refusal to provide a social security number or refusal to provide services to developmentally disabled clients such as accompaniment to religious services, impose undue burdens on employers, who would be unable to comply with tax laws or provide needed services to other clientele, and therefore need not be accommodated. It is important, however, for an employer to review each accommodation request independently, keeping in mind the needs of the position and the impact that granting that accommodation would have on business operations.
The proselytizing employee creates a different type of challenge for an employer. An employee who feels obligated to “spread the word” may believe that work rules prohibiting discussion of sensitive topics violates his religious practice. Yet, employees who believe differently might find that the proselytizer creates a hostile work environment by criticizing or denigrating their beliefs (or lack of theistic belief). An employer in this situation should emphasize the importance of a workplace free of harassment, and determine to what extent the proselytizer can express his or her views in a way that does not change other employees’ conditions of employment. This is more effectively done when there already is a valid anti-harassment and EEO policy in place, but employers who lack pre-existing policies can use a potential conflict as an opportunity to develop a policy consistent with their legal obligations, with their values, and with the rights of their employees.
It is not always easy to comply with the religious accommodation obligations under Title VII, but it is not impossible. The keys are (1) to have compliant policies in place or put them in place, (2) to act not based on assumptions or speculation but on specific information, and (3) to treat each person as an individual and make decisions based on the specific facts of each case.