If you’re a management attorney and you receive questions from clients about religious accommodation in the workplace, you may have heard one or two employers say they have zero tolerance policies. To such clients, attorney Eric Barnum says: “No you don’t.”
Barnum, a partner in Baker & Hostetler LLP’s Atlanta office, was among five panelists to discuss Title VII religious accommodation issues Nov. 10 at the American Bar Association’s Labor and Employment Law Conference.
“For employers, it’s really about providing a religious accommodation that helps the employee meet or satisfy whatever their obligations are to their faith,” he said.
What is required is an interactive dialogue to determine what an employer can do to get an employee what he or she needs without disrupting the workplace or creating other issues, said program moderator Chaim Book of Moskowitz & Book, LLP.
Considering Title VII of the 1964 Civil Rights Act’s reasonable accommodation obligation, the panel suggested ways employers should respond when workers seek adjustments for religious garb or prayer, or when work requirements conflict with religious beliefs.
Question Sincerity, Not Validity
Imagine an employee of the Sikh religion requests permission to wear a kirpan sheathed and strapped beneath her clothing in a hospital that has a strict “no weapons” policy. A kirpan is a mandatory article of faith resembling a knife or sword that obligates a Sikh to promote justice for all people and to defend the needy and oppressed.
In another scenario, an employee of the Jewish faith asks to set aside time and space for group prayer in the workplace and seeks to persuade nonobservant Jewish co-workers to join the group.
A grocery store shelf-stocker declares he can’t handle pork, and a pharmacist says she can’t dispense birth control, because of their religious beliefs.
What's the appropriate response?
According to Harsimran Kaur of The Sikh Institute, an employer has a duty to accommodate an employee’s “sincerely held” religious beliefs, absent undue hardship.
Employers have every right to question the sincerity of an employee’s religious beliefs, and may ask an employee seeking accommodation to demonstrate a belief is sincerely held, without violating Title VII, Barnum said. Behavior that’s inconsistent with a professed belief or suspect timing of a request may undermine the worker’s claim that a religious belief is sincerely held.
But, as a general rule, they shouldn’t question the validity of the alleged religion itself.
“As an employer, you don’t get to decide whether or not a specific tenet of someone’s faith is valid,” Barnum said.
Don’t Make Accommodation Contingent on Verification
An employer may communicate with an employee, or even ask the employee “to put something in writing,” to parse out whether the accommodation request being made is based on a sincerely held belief, Kaur said.
Further, it may request a letter from a religious organization, friend or family member. However, the employer “can’t make the accommodation contingent on a letter from a third party,” she stated.
Jeanne Goldberg of the Equal Employment Opportunity Commission clarified: “It’s not that the asking for the letter from clergy would itself violate Title VII.” But by denying the accommodation unless the employee produces verification of a certain form, the employer is going to put itself in a position where it doesn’t have a defense to denial of accommodation if the accommodation didn’t otherwise pose an undue hardship, she said.
Title VII provides “ample room for dialogue,” Goldberg added, noting federal courts have incorporated the interactive process concept.
As a best practice, “employers, when in doubt, before denying a religious accommodation, need to consider whether there is more information they need to get to make an informed decision,” she advised.
Title VII’s “De Minimis” Undue Hardship Standard
One important thing to understand is that the undue hardship standard under Title VII is a “very different standard” than the undue hardship standard that applies to reasonable accommodations under the Americans with Disabilities Act, Barnum said.
The ADA defines undue hardship as “significant difficulty or expense.”
However, the bar is lower for employers in Title VII religious discrimination cases, he said. An employer asserting the undue hardship defense must show in this case the proposed religious accommodation would pose more than a “de minimis” cost or burden on business operations.
The type of workplace and the nature of the employee’s job duties are important considerations, Goldberg said.
Another important question for counsel to ask is whether other exceptions have been made at other locations or facilities of the employer and whether there was any harm to the business, she said.
Goldberg noted employers have successfully contended it was an undue hardship to accommodate an employee’s religious expression if the form or content of it would give the misimpression that it was the employer’s own communication or that it was employer-sponsored.
Get Into the Weeds
It’s imperative that employers conduct a case-by-case analysis when considering religious accommodation requests, the panelists agreed.
“My gold standard on religious garb and grooming cases where you’re looking at a particular employee’s situation is simply not to assume that an employer can apply an across the board rule,” Goldberg said.
Case law shows complications with religious prayer at work arise when, not one, but many people want to pray all at once and need to take the same time off during the workday, Goldberg said. The type of workplace and nature of the work are critical concerns—in the case of factory workers working on an assembly line, allowing 60 percent of the workers time off for prayer could impose an undue hardship.
According to Goldberg, the case law is clear that the employer can require prayer and solicitation of others to occur during break time or time off-the-clock.
Handling Potential Harassment Claims
Another complication arises when employees solicit participation by co-workers and those co-workers claim harassment or have other adverse reactions.
“Case after case” shows employers don’t risk violating Title VII if they draw the line when they are put on notice that religious expression toward co-workers, whether it’s proselytizing or other religious expression, is potential harassment and isn’t consensual, Goldberg said.
If the employer speaks to the religious employee about the unwelcome communications and the employee persists in pressuring co-workers, he or she may be subject to discipline up to and including termination, she said.
Barnum said: “What I tell my clients is anytime you have a worker who is proselytizing in any way shape or form at the workplace, and you have anyone express any discomfort about it, you need to have a conversation with that worker and let them know that even the slightest expression of discomfort about the proselytizing is an issue the employer has to be aware of and has to manage.”
He counsels clients to urge employees to express themselves outside the workplace “because invariably there’s going to be someone who has a different view of that religious expression.”
When Jobs Conflict with Religious Beliefs
When job duties conflict with religious beliefs, employers should try to accommodate employees’ religious practices, Goldberg said.
As a religious accommodation, an employee may be excused from performing a duty or participating in an employer-sponsored religious event where they have a religious objection, Goldberg said.
According to Barnum, if you can assign the task to someone else without undue hardship, it’s often easier to do so.
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