Title VII imposes an obligation to accommodate religion, including “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e, subd. (j). This obligation has drawn renewed attention following the U.S. Supreme Court’s decision in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___ (June 1, 2015).
There, a Muslim woman – who applied for a job while wearing a hijab/headscarf – was rejected because of Abercrombie’s “Look Policy” (i.e., appearance/dress code policy), which specifically prohibited wearing “caps” while working. The applicant did not proffer a religious reason for her attire nor did Abercrombie ask (although its local manager assumed that it was worn for religious reasons and her superior instructed her to reject this applicant regardless of her reason for wearing the headscarf).
As a result, Abercrombie’s defense (“lack of knowledge”) failed: “to prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.” This implicitly suggests that employers ought to err on the side of accommodating religion. Not a bad summary of the case law:
- Davis v. Fort Bend Cnty., 765 F.3d 480 (5th Cir. 2014) (summary judgment in favor of employer reversed where employee needed one Sunday off for church service and arranged for someone to cover her shift);
- Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382 (9th Cir. 1984) (despite job requirement that men be clean-shaven when working with toxic fumes, company required to reasonably accommodate Sikh machinist by transferring to janitorial position after he stated his religion precluded him from shaving his facial hair);
- California Fair Employment & Housing Commission v. Gemini Aluminum Corp., 122 Cal.App.4th 1004 (2004) (employer failed to reasonably accommodate Jehovah’s Witness employee who was scheduled to attend a religious convention held once a year over a long weekend);
- Soldinger v. Northwest Airlines, Inc., 51 Cal.App.4th 345 (1996) (employer required to accommodate airline attendant employee’s request for time off during the Passover holiday).
But, there must be limits to accommodations. Let’s check.
What Must Be Accommodated?
Only “sincerely held” religious beliefs and practices need be accommodated. Frazee v. Illinois Dept. of Employment Security (1989) 489 U.S. 829, 834. That includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” 29 C.F.R. § 1605.1; United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970). But, even those broad standards have an outer boundary:
Sun Worshipping Atheism. Copple v. California Dep’t of Corr. & Rehab., No. G050690, 2015 WL 1383578 (Cal. Ct. App. Mar. 24, 2015) (unpublished opinion). Copple founded his own branch of atheism called Sun Worshipping Atheism, a religion of which he was the sole member. Beliefs of Sun Worshipping Atheism included sleeping eight or more hours a day, getting fresh air daily, exercising frequently, having a job, being social frequently and being skeptical of all things. However, these beliefs conflicted with his job when overtime was required. Copple’s request that he be only required to work 8 hours per day due to his religion was properly rejected.
Cat Food Lovers. Brown v. Pena, 441 F. Supp. 1382, 1385 (D.C. Fla. 1977) (aff’d, 589 F.2d 1113 (5th Cir. 1979). Copple’s Sun Worshipping Atheism may be every employee’s daydream but a personal religious creed centered on eating Kozy Kitten Cat Food is undeniably the most unique religion in American history. Here, the court concluded that it was a mere personal preference beyond the parameters of the concept of religion as protected by the constitution or statute.
Veganism. Friedman v. Southern Cal. Permanente Medical Group, 102 Cal.App.4th 39 (2002). Here, the Court of Appeal affirmed the right for the employer to withdraw its offer of permanent employment to plaintiff when he refused, because he was a strict vegan, to be immunized against mumps, the vaccine for which is grown in chicken embryos, holding that under California law, veganism is not a religious creed – it is a moral and secular, rather than religious, philosophy of the value of animal life.
What is a Reasonable Accommodation?
Accommodation most often involves scheduling alterations to permit attendance at religious observances. Pragmatically, however, the question is not what is “reasonable” but rather what accommodation request imposes an “undue hardship.” In an era dominated by accommodating disabilities, this is oft misinterpreted. Employers need far less to say NO to a religious accommodation than to a disability accommodation. For religion, all that is needed is “more than de minimis cost on the operation of the employer’s business.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). Watch how this plays out in practice:
- Unreasonable costs. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (airline was not required to permit store clerk to work a 4-day week in order to avoid working on his Sabbath or to replace employee on clerk’s Saturday shift with other available employees through payment of premium wages).
- Violation of the law. Baltgalvis v. Newport News Shipbuilding, Inc., 132 F.Supp.2d 414 (E.D. Va. 2000) (employee refused to provide her social security number based on religious reasons; court held that employer need not provide accommodation because under federal law, all employers are required to withhold certain income taxes and social security taxes and file a report with the Internal Revenue Service).
- Violation Of A Collective Bargaining Agreement. E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 317 (4th Cir. 2008) (employer did not violate Title VII by refusing to violate seniority rules under its union contract to transfer an employee to a different shift to facilitate his religious observances).
- Proselytizing In The Workplace. Berry v. Department of Social Services, 447 F.3d 642, 655 (9th Cir. 2006) (employer could enforce rules restricting religious discussion with clients and display of religious items; likewise, employee was justified in refusing to allow prayer meetings in conference room).