Picture this scenario. You are a busy manager of a retail organization. You assume that a sales employee is deeply religious because she wears religious symbols around her neck, talks about her pastor and church services frequently with coworkers, and says “Have a blessed day” to customers after she completes their purchases. She is a very good worker and well-liked by her colleagues. Although the employee has never asked for any scheduling preferences, when preparing the shift schedule for the holidays and on weekends, you avoid scheduling her for Sunday shifts or the day before (or after) religious holidays. Often, the days the employee is scheduled to be off from work are high-traffic days with many customers in the store. All sales employees work on commissions.
Have you done anything wrong?
Potentially, yes. Despite your good intentions, you have deprived an employee of the opportunity to work on days in which commission sales are high based on an assumption about the employee’s religious beliefs and practices. If your assumptions are wrong, you have engaged in a form of religious discrimination by depriving an employee of job opportunities (the ability to earn higher commissions) based on religion and religious stereotyping.
As background, under Title VII of the Civil Rights Act of 1964, employees of covered employers (i.e., employers with 15 or more employees) are protected from discrimination at work because of “sincerely held religious beliefs or practices.” Not only are underlying religious beliefs protected from discrimination (and harassment) at work, practices used to carry out those beliefs are within the umbrella of Title VII protection. Common practices associated with religious beliefs include observing religious holidays by not working, wearing religious articles, symbols or clothing, or taking time out of the work day to pray.
The Difference Between Assumptions and Accommodations
Assumptions about religious belief and practices can be dangerous under Title VII and many state laws, especially if you act on those assumptions relative to job opportunities. There is a significant legal difference between accommodating a specific request for a religious accommodation at work—which is required under Title VII and many state laws absent an undue hardship—and assuming that an employee wants or needs religious accommodations in the first place. It is best to stay neutral and uniformly apply work rules and opportunities (for example, shift scheduling) unless you receive a specific request for an accommodation from the employee.
If a conflict exists between a religious belief and practice and a work rule or requirement, under federal (and many state laws) employers must make reasonable efforts to find a work-around to the conflict before denying a job accommodation or taking adverse job action. However, in most cases, only the employee with the sincerely-held religious belief or practice is in the position to know if a conflict even exists. For example, not all employees whose religion forbids working on the Sabbath strictly adhere to the religious practice. Bottom line: Wait for the employee to ask for a religious accommodation.
Assumptions About Undue Hardships are Equally Dangerous
If you do receive a request for accommodation, do not reject it out of hand. Just as assumptions about religious beliefs or practices can be dangerous, assuming that the requested work-around or accommodation will cause the business an undue hardship is equally problematic. A refusal to accommodate an employee’s religious belief or practice must be based on actual facts, not assumptions, speculation, or stereotypes. For example, an employer that assumes, without any documented investigation, that allowing an employee time off work to observe the Sabbath would unduly disrupt the schedules of other employees has not done enough to show undue hardship on the business. Maybe other employees would be willing to voluntarily swap shifts with the employee?
Examples of typical religious accommodations requested by employees include:
- modifying interviewing or testing times to allow religious observances;
- providing paid or unpaid leave;
- extending break periods;
- providing flexible departure and arrival times;
- using lunch time in exchange for an early departure allowing staggered work hours or neutral rotating shifts;
- “splitting” or “balancing” truck loads with other drivers;
- advertising on bulletin boards and at roll call for shift swaps;
- permitting employees to make up time lost due to religious practices;
- making exceptions to grooming or uniform policies to allow religious clothing;
- making exceptions to policies requiring photo identification; and
- allowing religious expression and prayer at work.
When would the above job accommodations cause an undue hardship? If the accommodation would require more than a minimal disruption to business operations, it would likely constitute an undue hardship under Title VII. Notably, the threshold for an “undue hardship” for religious accommodations under Title VII is much lower than the undue hardship requirement under the Americans with Disabilities Act. The accommodation process is a balancing act: Can the employer implement a work-around to accommodate one employee’s religious belief or practice in a way that does not unduly burden other employees or the business?
Examples of possible undue hardships that would justify denying a request for a religious accommodation at work, if supported by actual facts, include situations where the accommodation would:
- increase safety or sanitation risks;
- increase administrative costs that are more than minor;
- create additional overtime costs;
- deprive another employee of his or her seniority rights;
- violate a collective bargaining agreement;
- involuntarily increase the work of other employees on the team;
- force other employees to forfeit vacation or other time off work;
- threaten customer relations; or
- violate company policies, including policies guaranteeing other employees the right to be free of religious-based harassment at work
As with all requested accommodations, employers must consider not only the requirements of Title VII, but also applicable state laws. An accommodation not required under federal law may be mandatory under state law, or vice versa.