How to know when to accommodate religious expression
February 26, 2020
It is difficult to deny that there has been an ever-increasing secularization of our society. Despite this significant trend, employers today are still being confronted with issues related to their employees’ religious beliefs. The issues arise in a variety of contexts. Among the most common have been issues related to conflicts between an employer’s dress code and the religious clothing or articles required to be worn by observers of certain religions. There have been numerous cases involving the hijab or khimar (head scarf) worn by women of the Muslim faith. Conflicts between an employee’s work schedule and their religious obligations sometimes still arise as well. The daily prayer obligations of Muslim employees have also been an issue with which employers have struggled. The entry of immigrants from Islamic countries into the workforce has precipitated this issue that few employers have previously faced. In addition, issues have arisen as a result of employee proselytizing and religious expression in the workplace itself, sometimes presenting employers with difficult decisions.
Employer Obligation – Reasonable Accommodation
Both Title VII of the Civil Rights Act of 1964 and state human rights laws impose a duty on covered employers to reasonably accommodate the sincerely-held religious beliefs of their employees and job applicants, unless it would create an undue hardship. Because religious issues are not a common workplace problem, managers and supervisors are sometimes unaware of their legal obligations. The accommodation required is similar to that under the Americans with Disabilities Act, as amended (ADAAA). Once an employee requests a religious accommodation, the employer must engage in the interactive process to try to find a reasonable accommodation that does not create an undue hardship on the operation. The employer need not accept the employee’s preferred accommodation. Additionally, the employer may deny the request if accommodating it would create an undue hardship. In the area of religious accommodation, unlike reasonable accommodation under the ADAAA, “undue hardship” is defined as something “more than a de minimis cost”. It is a substantially lower threshold for finding “undue hardship”. Virtually all courts have applied this lower standard since the Supreme Court first ruled on it in 1977.
Work Schedules and Religious Observances
The conflict between an employee’s work schedule and their religious observances most frequently arise over the need to attend Sabbath Day services. The courts have generally found lawful employers’ rejection of employees’ requested schedule or shift changes that involve involuntary scheduling of other employees to accommodate their weekend Sabbath obligations. Title VII does not require an employer to discriminate against some employees in order to enable others to observe their Sabbath. Schedule changes, the use of voluntary substitutes, shift swapping, and changes of job assignments have all been considered acceptable reasonable accommodations.
Employers sometimes argue that the employee was hired knowing that their work schedule might conflict with their Sabbath. In such circumstances, they argue, there should be no obligation to consider reasonable accommodation, and some may even operate in that manner. That argument has consistently been rejected by the courts. Any time an employee requests an accommodation for religious purposes, the employer must consider reasonable accommodation. In most cases they are able to find a solution that satisfies the needs of both without unduly impacting the operation or other employees.
Personal Appearance
Title VII also requires reasonable accommodation of dress and grooming requirements that reflect religious beliefs. In 2015 the Supreme Court ruled in favor of an Abercrombie and Fitch sales job applicant who had been denied the job because, as a Muslim woman, she was required to wear a hijab (headscarf). The company had taken the position that her hijab, which she had not worn to her job interview, violated the company’s “look” policy. Understandably, not long after this case Abercrombie & Fitch adopted a much less restrictive dress code and changed the job titles of its sales personnel from “models” to “brand representatives”. Courts across the country have generally been consistent in requiring employers to permit wearing of the hijab in a variety of employment settings.
The dress requirements of adherents of the Sikh religion have also posed workplace conflicts. They are required to wear five articles of faith as part of their beliefs. Most employers have been able to accommodate the wearing of turbans by Sikh men, except in circumstances where workplace safety could be compromised. In several cases the issue involved whether Sikhs should be permitted to carry in the workplace the small ceremonial sword known as a “kirpan”. It is another of the five articles of faith of Sikhism. It is carried in a sheath and worn under the clothing. The courts here too have generally accepted the wearing of the kirpan irrespective of the employment setting, finding that it did not constitute a prohibited “weapon”.
Prayer Breaks in the Workplace
The issue of prayer in the workplace has sometimes arisen in cases where Muslim employees on a production line have insisted upon time to pray outside of regular break times. The Muslim faith’s requirement of five daily prayers at specific times of the day, such as pre-dawn and sunset, can pose a serious conflict with production line operations. Praying on the scheduled breaks is sometimes considered insufficient by some Muslim employees. The issue has, in some cases, been exacerbated during the Muslim holy month of Ramadan when daily prayer is a critical part of the religious observance. The Courts have found employer’s liable where reasonable accommodation wasn’t considered and employees were disciplined or terminated for taking unscheduled time to pray. These situations are best handled on a case-by-case basis. Permitting two or three employees to leave the production line for a few minutes to pray may be possible without a significant disruption. However, if a large group of Muslim production line workers were to insist upon additional breaks to pray, the loss of productivity and impact on other employees would very likely be considered an undue hardship. Employers with Muslim employees need to have an established procedure in place to address the need to pray well in advance of the issue arising in their workplace.
Other Accommodations
In some instances the employee’s religious beliefs conflict with job duties and are unrelated to work schedules or religious garb. There have been reported cases where a male employee’s job duties required him to spend substantial time alone with a female employee or client in violation of certain tenets of their faith. In one case, a truck driver who was a Jehovah’s Witness could not make long-haul overnight runs with female drivers who were not his wife. Such overnight runs were an “essential function” of his truck-driving job. His claim that the employer failed to accommodate his beliefs was rejected by both the lower court and the federal appeals court. Both courts agreed that the employer could not accommodate the plaintiff’s religious beliefs without undue burden on the employer and co-workers.
There have also been numerous cases that have involved the need to accommodate employee religious expression within the workplace itself. The courts have required employers to provide religious accommodations to the extent that they do not have an adverse effect on employee morale and workplace productivity. Where to draw the line when it comes to accommodating the injection of personal religious beliefs such as group prayer or proselytizing into the workplace can pose problems. For example, using the phrase “have a blessed day” with co-workers and supervisors has been found to be acceptable, even if some employees object. However, including the same phrase in business correspondence to the employer’s customers was considered to create an undue hardship and unacceptable. When addressing these issues it is important to consider that such religious beliefs are usually strongly-held and quite personal. The employer’s response must be respectful and understanding, especially when it is determined that the particular religious expression is unacceptable in that workplace.
Conclusion
The issue of employees’ obligations to observe their sincerely-held religious beliefs can arise in many forms. Approaching such issues on a case-by-case basis with the understanding that some effort must be made to reasonably accommodate the employee’s religious beliefs should result in solutions that satisfy both the employee and the employer.
Richard D. Alaniz, of Alaniz Law and Associates, has been at the forefront of labor and employment law for over 30 years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Alaniz is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article, or requests to subscribe to receive his monthly articles, can be addressed to Rick at (281) 381-2219 or ralaniz@alaniz-law.com.