Now that the two major U.S. political parties have officially nominated their respective candidates for President and Vice President, this fall's election marks a notable historic milestone that mostly has gone unnoticed: for the first time in history, three of the four individuals at the top of the two major parties' tickets are members of historically marginalized religious communities. (Republican Presidential nominee Mitt Romney is a member of the Church of Jesus Christ of Latter Day Saints, while current Vice President Joe Biden and Republican challenger Paul Ryan are both members of the Roman Catholic Church.)3 The fact that this historical milestone has garnered relatively little attention perhaps illustrates that America is a much more religiously diverse place today than it was only 52 years ago, when John F. Kennedy became the first non-Protestant elected President of the United States.
In the midst of such unprecedented religious diversity, private plaintiffs and the EEOC are increasingly challenging employers' work rules under Title VII of the Civil Rights Act of 1964, which, among other things, requires employers to reasonably accommodate employees' religious observance or practice unless such accommodation would cause "undue hardship on the conduct of the employer's business."4 For example, recently, a former employee at Disneyland filed a lawsuit challenging a uniform requirement that allegedly prevented her from wearing a hijab in accordance with her Muslim faith5, while the EEOC sued a Burger King franchisee in Texas over a uniform requirement that allegedly prevented a female employee from wearing a skirt, which the employee alleges is required by her Pentecostal Christian faith.6
Given the increase in lawsuits related to religious accommodations, employers in general (and hospitality industry employers in particular) should tread carefully when considering requests by employees for religious accommodations. The following are five practical pointers for employers to consider when dealing with religious accommodation issues:
1. Remember that an observation or practice need not be reasonable, conventional, or even traditionally "religious" to be protected as long as it is "sincerely-held." Because Title VII's definition of religion includes "all aspects of religious observance and practice, as well as belief," the law protects not only employees' religious beliefs, but also practices that employees follow in carrying out their beliefs.7 It is in the area of religious practices that employees' religious exercise often conflicts with employer work rules, particularly when employee schedules require employees to work on days reserved for religious observations (such as an employee's Sabbath or periodic religious holidays) or when dress code and grooming requirements require employees to wear clothing forbidden by their religion (or, more commonly, prevent employees from wearing clothing mandated by their religion).
Intuitively, it will not come as a surprise to most employers that they should not (and, in fact, must not) make decisions about religious accommodations based on how reasonable an employee's religious requirement appears to them. After all, what may seem bizarre or even farfetched to one person may represent the core of another person's religious convictions. What is perhaps more surprising, though, is that a religious practice or observance can be protected by Title VII even if it is not shared by members of the employee's same religious group and even if it is not "religious" in the conventional sense of the word.
Courts have struggled over the years with where to draw the line between mere "personal preferences" (which are not protected by Title VII) and religious practices (which are). But the EEOC has taken the position that "religious practices" include "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views."8 In addition, the EEOC has taken the position that such beliefs do not have to derive from an organization or faith community but can be unique to the individual: "The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee."9
Given Title VII's broad definition of the term "religious," in most situations it's prudent for employers to presume that an employee's professed belief or practice is a "religious" belief or practice covered by Title VII - at least if the employee can articulate some basis for the belief that is even remotely "religious" in the general sense of the word.
2. Where possible, document your interaction with employees regarding your attempts to reasonably accommodate religious practices and observations. Most employers are familiar with the interactive process necessary for considering reasonable accommodations for disabilities under the ADA. The same concept applies to religious accommodations under Title VII.
Although there is no requirement per se that employers document their interaction with employees regarding possible reasonable accommodations, as a practical matter such documentation is necessary if the employee challenges the employer's decision in an EEOC charge or lawsuit. When it becomes clear that there is a conflict between a work rule and an employee's professed religious practice or observance, consider asking the employee to complete a questionnaire about the request for an accommodation. The questionnaire should ask the employee to identify the specific religious belief or practice that needs accommodation, explain how the employer's work rules conflict with the specific religious belief or practice, and offer any suggestions for accommodation that the employee believes will eliminate the conflict. While employers do not have to provide the specific accommodation requested by the employee, soliciting suggestions and other information from the employee gives the employer evidence of its good faith, assists the employer in assessing whether a true conflict even exists, and sometimes may allow the employer to identify a reasonable accommodation that it otherwise would have overlooked.
Documenting the interactive process through an employee questionnaire can have an additional advantage: it can, in some circumstances, expose bogus requests for religious accommodation. Unlike disabilities, alleged religious observations and practices are rarely subject to objective verification, and it is certainly possible for employees to abuse Title VII by citing "religious" reasons in support of a personal desire to be excused from a work rule. For example, one can imagine situations where an employee requests time off from work, ostensibly to observe a religious holiday but in reality because of a personal preference to take time off from work. In some situations, properly-drafted written questionnaires may help separate legitimate requests for religious accommodations from bogus ones, particularly when the employee's responses indicate that he or she has a long pattern of not following the alleged religious observation that he or she cites as the need for an accommodation. (Note, however, that employees' religious practices can evolve or become more observant over time. Thus, the fact that an employee has never previously followed a particular religious observation does not always mean that the employee's need for an accommodation is insincere.)
3. Consider whether work rules in question can be justified by legitimate safety concerns. In the hospitality industry, one of the most common conflicts between religious practices and work rules relates to uniform and grooming requirements. Many faith traditions mandate that adherents wear certain articles of clothing (such as turbans, yarmulkes, or hijabs) that identify them as members of that tradition. Likewise, many faith traditions require adherents to wear their hair in a certain fashion or, if they are male, to wear beards. Because employers typically have policies that require employees to wear uniforms or that impose grooming requirements (such as policies that employees must be clean-shaven), employees frequently argue that such policies conflict with their religious practices.
In numerous cases, courts have considered—with varying results—the extent to which employers must accommodate employees whose religious practices conflict with such work rules. The courts that have addressed this issue have reached different (and sometimes inconsistent) conclusions, usually because of the unique facts present in particular cases. However, in general, courts have held that employers are not required to exempt employees from uniform or grooming requirements if such requirements are based on legitimate safety concerns. (For example, courts have held that employers are not required to provide employees with exemptions from policies that prevent employees from wearing beards or head coverings if allowing employees to wear beards or head coverings would prevent them from wearing respirators, hard hats, or other safety equipment.) Courts are much more likely to rule in favor of employees (and less likely to rule in favor of employers) where the work rule at issue is not justified by a safety consideration but on considerations of "company image." For this reason, when the particular work rule at issue is not justified by a legitimate safety concern, employers should be more wary of denying requests for reasonable accommodation that they might be when a safety rule is at issue.
4. Consider multiple ways to accommodate scheduling conflicts, including transfers, shift swaps, and vacation time. Another common religious accommodation issue in the hospitality industry arises from conflicts between employee schedules and religious observations. Many faith traditions require their adherents to take off work to pray or to attend religious services during certain times of the week, while other faith traditions not only require adherents to attend religious services but also to refrain from work on such days. Because such religious obligations often conflict with the times of the week that employees are scheduled to work, employees frequently request that employers allow them to take off work during times that they otherwise would be required to work.
When an employee requests an accommodation to take time off work for a religious purpose, consider whether the employee can be moved to a different work shift or work schedule or transferred to a different position. Some courts have held that such a transfer is a reasonable accommodation even if the transfer would result in a decrease in salary (but only if no other accommodation is feasible).10 If there is no alternative shift available, consider whether the employee can swap shifts with another employee. If no other options are available and the conflict is non-recurring, consider whether the employee has any vacation time that he or she can use.
5. Be wary of restrictions on religious expression within the workplace unless such religious expression creates an undue hardship. A somewhat less common but often sensitive accommodation issue arises from conflicts between employer policies and employees' religious expression in the workplace. For many employees of varying faiths, expression of their religious faith in the workplace is an essential aspect of their religious practice. Such religious expression can range from merely using religious terminology (for example, "have a blessed day" or "Praise the Lord") to more overt forms of proselytizing. For good reasons, many employers are concerned that employees' religious expression in the workplace could disrupt or offend co-workers or even (in more extreme cases) that it could result in claims of religious harassment by co-workers who do not share the same religious beliefs.
While employers should be sensitive to such concerns, Title VII does not require employers to erect "religion-free" zones where only secular speech is permitted. In many workplaces, employees' expressions of their political preferences or sports allegiances are as likely to give rise to heated discussions as any religious expression in the workplace. If an employer restricts religious expression more heavily than these other forms of expression, the employer may have difficulty demonstrating that the religious expression at issue creates an undue hardship.
Unfortunately, as with other areas of religious accommodation, the courts that have addressed this issue have reached different (and sometimes inconsistent) conclusions, usually because of the unique facts present in particular cases. In general, however, courts have held that employers must allow employees to express their religious faith in the workplace, so long as such expression does not have an adverse effect upon employee morale or workplace productivity and does not infringe on the rights of other employees. When responding to religious expression in the workplace, employers should follow a common-sense approach to balance the rights of employees to exercise their religion with the rights of other employees to a workplace free from religious discrimination or harassment: while employers should ensure that religious expression in the workplace (particularly by supervisors) does not disrupt the workplace, employers should also avoid across-the-board prohibitions on employee speech in the workforce