As we previously noted, businesses are increasingly confronted with Catch-22 situations when trying to accommodate the religious beliefs of their employees and patrons. In the workplace, this circumstance arises frequently in the context of religious-based refusals to shake hands with opposite-sex co-workers. In our last post on this topic, we discussed what to do if a company learns during the interview process that an applicant does not shake hands with women for reasons the company suspects relate to his religion. Assuming this hypothetical candidate is hired and confirms that–as a matter of religious belief–he will not shake hands with women, what should the company do next?
It turns out that the Equal Employment Opportunity Commission (“EEOC”) has informally discussed this issue. In its discussion, the EEOC appears to advocate for a “wait and see” approach. That is, until there is demonstrable evidence that the employee’s belief “actually infringes” on the rights of co-workers or that customers have viewed the practice as a company-wide message against women, the employee’s “no handshake” belief should be accommodated. But how?
One thing is clear: a company should never adopt discriminatory policies as an accommodation for the “no handshake” religious belief. For example, a company should not limit the employee to servicing male clients only, nor should it ban the employee from interacting with female employees. Instead, an employer should allow the employee to engage in his practice in a respectful manner. The EEOC suggests including information about religious practices in its diversity or equal employment opportunity training to alleviate possible tension and discomfort amongst the employees regarding the handshake practice. Or, a company could encourage an alternative accommodation that involves a separate method of greeting individuals. For example, in one case, the employee fashioned an alternative method of greeting others – clasping his hands together and bowing.
Once an accommodation is chosen, the company should continue to monitor the situation. An employer is not required to continue to make an accommodation when doing so would subject itself to possible suits for discrimination or harassment from other employees. On the other hand, the company should remain aware of the other co-workers’ reactions to the employee’s practice. Indeed, there has been at least one reported case of a non-handshaking employee claiming religious discrimination and harassment on the part of female co-workers who were offended by his actions and who allegedly “ostracized” him as a result. Careful monitoring and open dialogue are key to mitigating the risks of such unintended circumstances.
Companies should also remain cognizant of other religious accommodation issues that have the potential to butt heads with anti-discrimination laws. One need only look to the failed initiatives in Kansas and Arizona, where lawmakers proposed bills that would have allowed business owners to refuse service to same-sex couples based on religious beliefs, to see the potential for intractable conflict. Historically, courts have not required employers to accommodate religious beliefs regarding homosexuality. In fact, there has been at least one reported decision where the court determined that taking down diversity campaign posters featuring gay workers to accommodate another employee’s religious belief would infringe upon the company’s right to promote diversity and encourage tolerance and good will among its workforce. As social attitudes and the legal landscapes change, however, companies can expect to see more tensions arise and more questions develop regarding whether and when religious freedom means freedom to discriminate against other protected classes.