Second post in our series.
NOTE FROM ROBIN: Last month, I posted the first in what will be a series of very basic explanations of the federal laws that govern the workplace.
I could not resist having religious accommodation as my topic this time. We are in an intensely religious time of year. Passover starts today, and it's also Good Friday for most Christians. Ramadan started on April 2 and will run through May 2. Easter Sunday will be day after tomorrow for most Christians (or a week from Sunday for Eastern Orthodox Christians).
Subsequent posts will get into other areas of employment law, including retaliation, disability accommodation, harassment, and wage-hour. If there is a topic that you'd like to see covered, please send me an email or leave a comment here.
Title VII of the Civil Rights Act of 1964 is the federal law that prohibits discrimination based on race, sex, national origin, color, and religion. As we discussed last time, "discrimination" means treating someone differently (less favorably) because of one or more of these characteristics.
Very straightforward, right? All an employer has to do is treat everybody exactly the same way and there should be no problem?
Treating everybody the same -- equally -- is indeed a good start. But sometimes, treating everybody exactly the same isn't fair. Sometimes doing the right thing requires us to treat people differently. Parents know this. In the employment context, that obligation to treat people differently is known as "reasonable accommodation."
Title VII in its original form prohibited religious discrimination but didn't require religious accommodation. But in 1970, a federal appeals court found in favor of an employer who fired an employee for refusing to work on Sunday because of his religious beliefs. According to the court, the employer didn't discriminate because it made all its employees work on Sundays when needed. In other words, the employer treated the employee with the religious need the same way it treated everyone else.
The case went to the U.S. Supreme Court, which split 50-50 on the issue, meaning that the lower court decision was left in place. About a year later, Congress amended Title VII to add a religious accommodation obligation.
As a result of the amendment, if an employee has a religious belief or practice that conflicts with a job requirement, the employer must at least try to accommodate the employee unless doing so would be an "undue hardship" for the employer. An "undue hardship" in this context would be anything more than a "de minimis" (insignificant) difficulty or expense. The employer has the burden of proving undue hardship in court.
When deciding whether to make a reasonable accommodation for an employee's religious beliefs or practices, the employer should ask itself three questions:
1) Is the employee's belief or practice "religious" in nature? If no, there is no duty to make reasonable accommodations. This came up a lot last year with COVID-19 vaccines, as I wrote about here and here. If an employee objected to the vaccines because of fear for his health, or for political reasons, then there would be no right to religious accommodation. On the other hand, if the employee believed it would be a sin to get the vaccine, then the employer would proceed to Question 2.
2) Is the employee's religious belief sincerely held? Employers are supposed to give the employee the benefit of the doubt on this point, but there are situations in which the employee's belief is clearly not sincere. Think about someone who has been given Sunday mornings off to go to church and is caught hanging out at the neighborhood bar. Not sincere, and the employer is done. But if the belief is or appears to be sincere, proceed to Question 3.
3) Would accommodation involve more than a minimal expense or disruption for the employer? In other words, would it be an "undue hardship" to accommodate? If no, then accommodate. If yes, then don't.
Now that you're an expert, take a crack at this one (answers/commentary at the end):
LAURA'S EASTER BRUNCH
A Religious Accommodation Story
Laura had nearly completed the work schedule for Easter weekend. She was expecting her bistro to do some great business. Friday and Saturday nights were always busy. And she and her sous chef had come up with a lovely Sunday brunch. Salt-cured country ham. Bunny-shaped omelets with green olives for eyes, sliced carrots for noses, and pancetta matchsticks for whiskers. Homemade bread with embedded Easter eggs. Fruit salad with a killer Greek yogurt and mint dressing. And of course plenty of coffee, and artisanal Bloody Marys and Mimosas.
But she needed an employee to decorate the eggs to go in the bread on Sunday morning. Fifteen of her 20 employees1 -- kitchen staff, wait staff, and dishwashers -- were already on the schedule. Only five employees were not yet scheduled: Abe, Jason, Joseph, Larry, and Mohammed. Any of them could do a fine job decorating the eggs.
Laura immediately ruled out Joseph. He was a devout Catholic, and had taken the afternoon off to go to the Good Friday service at his church. He'd be going to Mass on Sunday morning for sure. She decided to start with Mohammed.
"Mohammed, can you work on Sunday? I need someone to decorate eggs to go in the brunch bread."
"I'd rather not," replied Mohammed. "During Ramadan we have to fast from dawn to dusk. A morning shift would be really tough because I'd have to smell that food when I can't have any.2 (And so much pork!) But I'd be glad to work tonight or Saturday night."
"OK, I'll take you up on that. Let me try someone else for Sunday."
Wasn't Jason an atheist?3 He'd be perfect!
"Hey, Jason, I'm going to put you on the schedule for Sunday morning. I need someone to decorate eggs to go in the bread for Sunday brunch."
"I'd be glad to, Laura, even though I don't believe in all that Easter hocus pocus. But don't you remember? You gave me this weekend off so my girlfriend and I could go to the beach. After you told me I could go, I made a non-refundable prepaid reservation, so I can't reschedule."
"I'm sorry. You're right, I forgot. Don't worry about it. I'll find someone else."
Darn! Well, there was still Abe, who was Jewish. In fact, he was getting ready to leave for the day because Laura always let him off for the Sabbath.
"Hey, Abe. I'm gonna need for you to come in on Sunday morning to decorate the eggs to go in the Easter bread."
"I'll have to say no, Laura. With all due respect, it violates my religious beliefs to actively participate in a Christian holiday."4
"Don't worry about it, Abe. I won't make you work this Sunday."
"Thanks, Laura. You're all right. See you tomorrow."
OK. That left Larry. Laura had put him off as long as she could because Larry had his own religion, "Larryism," with a set of rules that applied to no one but him. He was a good guy, but Laura dreaded talking to him when there was a possibility that religion would come up.
"Hi, Larry. I need for you to come in on Sunday morning to decorate eggs to go with our Easter bread."
"Oh, Laura, you know I'd do anything for you, but this Sunday is The Day of the Holy Howling Coati. It is a sacred day in Larryism, and servile work is strictly forbidden."5
"Come on, Larry! I'm desperate! You're gonna have to work unless I get a note from your pastor."6
"But, Laura, you know that Larryism does not recognize fallible human pastors. There is no one I could ask for a note."
What was she going to do? It was already 6 p.m.
Just then, the door opened, and in walked Joseph. "Hi, all. Laura, why so glum?"
"I can't get anyone to decorate the eggs to go in the bread for Easter brunch!"
"That's too bad. I'd like to help you, but I'm driving up to Baltimore on Sunday to see the Orioles."
"Yeah. My frat buddy and I decided to give it a shot . . . we'll see if we can get in."
"You don't have tickets?"
"Nah. But I don't think they'll be sold out. We figure if we hit the road by 7 a.m., we'll be there in time for the first pitch."
"But it's Easter, and you're Catholic. Aren't you required to go to Mass?"
"Geez, you sound like my mother. No, I'd rather go to the ball game."
"Weren't you at church this afternoon for Good Friday?"
"Well, yeah, but only because my mom wanted me to take her. But she's going to be at my aunt's this weekend, so I'm off the hook for Sunday."
Laura thought for a minute. No religious concern, no non-refundable tickets . . .
"Joseph, I have some bad news for you."7