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Employment Law In Focus – March 2017

Religion at Work – Rights & Responsibilities

Every year at this time of year, with Christmas and Hanukkah behind us and Easter just weeks away, employers often receive questions about religion at work that may not be raised at other times.  So it might be helpful to summarize certain rights and responsibilities of both employers and employees when addressing religion in the private workplace.

First, most work-related issues concerning religion normally fall under three areas:  discrimination, harassment and accommodation.  Claims under each of those areas have risen dramatically through the years – to the point that last year, various federal agencies announced a new interagency initiative to oppose religious discrimination and promote religious freedom in the workplace.  Those agencies at least included the United States Equal Employment Opportunity Commission (EEOC), Department of Justice and the Department of Labor’s Office of Federal Contract Compliance, with the EEOC taking the lead due to its role in enforcing Title VII of the Civil Rights Act of 1964, our primary federal law prohibiting religious and other forms of discrimination at work.

Concerning Title VII – which only applies to employers with at least 15 employees – the main provision expressly addressing religion at work is Section 2000e-2.  This section states (with emphasis added):

(a) It shall be an unlawful employment practice for an employer –

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Like many employment laws prohibiting workplace discrimination, however, the devil is in the details with religion.  For example, “religion” under Title VII is not just the primary religious faiths most encountered in the United States, such as Christianity, Judaism, Islam, Buddhism and Hinduism, but rather any “sincerely held belief” or practice.  This standard is generally interpreted quite broadly to include any belief system addressing ultimate ideas about life, death and the purpose of existence – including belief systems that are comparatively “new” or “uncommon.”

Workplace protections also apply to conduct motivated by religion, such as prayer, worship, clothing and personal hygiene, which can and often do have a direct impact on commonly accepted practices such as work hours, work schedules and dress codes.  Although in limited circumstances an employer may satisfy the “religious organization” or “ministerial” exception that enables preferring one religion or religious faith over another (such as being Methodist in order to be hired as the director of Christian education at a Methodist church), most employers and job positions do not satisfy that standard.  Rather, like society at large, most workplaces are quite diverse and secular enough in practice that Title VII’s mandates and prohibitions apply.

Perhaps the best way to understand an employer’s obligations not to discriminate against employees on the basis of religion is to summarize Title VII’s legal requirements for stating one of the most commonly alleged claims – failure to “reasonably accommodate” the individual’s religious practices.  To state a failure to accommodate claim, the employee-plaintiff must generally demonstrate:  (1) a bona fide religious belief that conflicts with the employer’s requirement; (2) that he or she informed the employer of that belief; and  (3) that he or she was disciplined, not permitted to engage in a particular religious practice, or suffered some other adverse action for not complying with the conflicting employment requirement.

Assuming those elements can be shown, the employer-defendant must generally demonstrate that it did, in fact, provide the employee with a reasonable accommodation that sufficiently allowed the employee’s religious practice or observance, or that it could not provide such an accommodation without creating an “undue hardship” on the company.  Significantly, any reasonable accommodation that adequately addresses the situation will satisfy the employer’s obligation – and it does not need to be the employee’s “preferred” accommodation.  However, it will also be difficult to deny a particular accommodation as an undue hardship unless it adversely affects seniority rights concerning certain workplace practices (such as time off or work schedules), or if its effect imposes “more than a de minimis [minimal] cost or burden on business operations.” (EEOC Questions and Answers: Religious Discrimination in the Workplace, www.eeoc.gov/policy/docs/qanda_religion.html).  In making that determination, the EEOC usually considers “administrative costs” for enabling work assignment rescheduling to be only de minimis, factoring in the costs expended relative to the employer at issue along with the number of employees that would be accommodated.  In addition, other factors that can show “undue hardship” include at least the following:

* Diminishing efficiency or impairing safety
* Infringing on other employees’ rights or benefits
* Making co-workers carry the employee’s share of potentially hazardous or burdensome work
* Conflicting with another law or regulation

Examples of potential religious discrimination provided by the EEOC include the following, which also serves as a good overview of the type of issues that employers often face with employees or applicants:

Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Whether a practice is religious depends on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons (e.g., dietary restrictions, tattoos, etc.).

Discrimination based on religion within the meaning of Title VII could include, for example: not hiring an otherwise qualified applicant because he is a self-described evangelical Christian; a Jewish supervisor denying a promotion to a qualified non-Jewish employee because the supervisor wishes to give a preference based on religion to a fellow Jewish employee; or, terminating an employee because he told the employer that he recently converted to the Baha’i Faith.

Similarly, requests for accommodation of a “religious” belief or practice could include, for example: a Catholic employee requesting a schedule change so that he can attend church services on Good Friday; a Muslim employee requesting an exception to the company’s dress and grooming code allowing her to wear her headscarf, or a Hindu employee requesting an exception allowing her to wear her bindi (religious forehead marking); an atheist asking to be excused from the religious invocation offered at the beginning of staff meetings; an adherent to Native American spiritual beliefs seeking unpaid leave to attend a ritual ceremony; or an employee who identifies as Christian but is not affiliated with a particular sect or denomination requests accommodation of his religious belief that working on his Sabbath is prohibited.

. . . .

Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of “quid pro quo” harassment may also give rise to a disparate treatment or denial of accommodation claim in some circumstances); or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.

 EEOC Questions and Answers: Religious Discrimination in the Workplace, www.eeoc.gov/policy/docs/qanda_religion.html.

As a practical matter, most religion-at-work issues involve the following concerns, with employer responses guided by the principles discussed above along with other issue-specific variations:

1. Clothing, Jewelry, Makeup & Body Piercing – Employer considerations include at least safety and dress code issues, and can be influenced by factors such as regulatory compliance, manufacturing or production requirements, and in certain situations even community standards, public image or customer relations concerns. For example, an employee in a safety-sensitive job operating dangerous machinery could be prohibited from wearing a flowing religious robe or headdress due to safety rules, provided that other forms of loose-fitting clothing, hats or headgear are also prohibited.  That same prohibition, however, might not apply to a receptionist, sales person or administrative assistant because their positions do not have similar safety-related issues.  And given their relatively non-intrusive nature, it could be quite difficult if not impossible to legally prohibit certain forms of makeup, perfumes, facial markings or body piercings based on a sincerely held religious belief or practice.  However, such a prohibition could occur if they’re offensive in content or otherwise violate a reasonable community-based standard, or if they could reasonably be seen as adversely affecting the employer’s public image or customer relations in a manner that has nothing to do with unlawful discriminatory behavior.

2. Speaking About Religion or Religious Views – As a general rule, and surprisingly for many people, if an employer allows other non-work related discussions at work (which virtually all employers permit), it cannot have a blanket prohibition against religious discussions. However, there are limits – and those limits usually involve crossing an often unclear line from merely discussing religion to actual evangelism or proselytizing, which generally can be prohibited (especially if complained about by other employees).  Employers can also open the door to Title VII liability if they have employer-mandated religious practices, such as prayer sessions or Bible readings, or allow a work environment to exist that arguably pressures employees to participate in those practices even if not actually “required.”

3. Accommodating Religious Practices with Work Schedules and During Working Hours – Employees who ask not to work on a particular day because it’s their Sabbath or other day of worship (such as a Sunday or Saturday), or on specific shifts (such as Wednesday evenings that might interfere with a weekday service or Bible study), may need accommodating – provided, of course, that their request is based on a “sincerely held” religious belief or practice. Normally, employers facing such requests are required to provide any reasonable adjustment that allows the employee to practice his or her religion without undue hardship to the employer.  Those adjustments could at least include the following: flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers, providing short breaks and a private room for daily prayer (unpaid time for hourly, nonexempt employees), modifying workplace policies or practices (such as dress code and personal appearance policies), or other “de minimis” steps that are reasonable under the circumstances.

Certain “red flags” in the workplace can also be helpful in terms of recognizing potential Title VII problems:  (1) if religion is being used as a basis for hiring, raises, promotions or discipline; (2) if the employer refuses to consider any accommodation for religious preferences; (3) if any evangelism, proselytizing or other religious action is unwelcome; or (4) if an adverse employment action is based on a customer preference based on religion. 

To summarize, as a general rule employers must allow religious talk and activities to the extent they allow other non-work related discussions and behavior in the workplace.  While employers can be vocal about religious preferences, they cannot require or take adverse action against employees who do not agree with or subscribe to those preferences.  Employers should also avoid actions that could reasonably be understood as creating implied pressure for employees to conform to a specific religion or religious view.

In addition, any complaint about religion, religious practices or religious behavior in the workplace, or any request to accommodate an employee’s religious faith or observance, should be promptly addressed.  It is especially important that employers take every such complaint or request seriously, investigating or considering it as appropriate.  If reasonable accommodations are requested, and can be made in accordance with Title VII, then those steps should be taken.  If not, the employee should be informed as to the legitimate business reason why their accommodation request is being denied.  If a complaint or concern is made over religious discrimination, harassment or other inappropriate actions based on religion, then it should be properly investigated.  If the complaint or concern is found to have merit, then prompt remedial action should be taken.  Employers should also have a strong policy against religious discrimination and harassment in the workplace, distributing it to their employees and enforcing it as needed.  Not only are those steps the “right” thing to do under federal law and for purposes of proper employee management, they can also provide certain key defenses if the employer is ever sued.

In short, religion in the workplace can be a minefield of sorts, often due to its somewhat ill-defined nature as any “sincerely held” belief or practice.  But the minefield can be successfully navigated, and the rights and responsibilities as discussed above – of both employers and employees – hopefully help that process.  Not only throughout, but especially at, this time of year.

This article was written by Ken Carlson of Constangy, Brooks, Smith & Prophete, LLP


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