True Believers at Work—Accommodating Religious Practices on the Job

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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An employee cannot work on Friday evenings or Saturdays because his religious beliefs forbid working on the Sabbath. Another employee objects to contributing to co-worker birthday celebrations or union dues on religious grounds. Yet another worker asks for an exception to the uniform rules to allow her to wear a hijab in the manufacturing plant, while her male co-worker wants to keep his beard for religious reasons even though the factory’s safety standard requires clean shaven faces in the respirator area.

Can a manager just say “no” and insist that the company’s general policy or rule be followed?

Title VII of the Civil Rights Act of 1964, which provides a blanket of civil rights protection for private sector workers, prevents companies with 15 or more employees from defaulting to an immediate “no.” When an employee’s sincerely held religious belief or practice collides with a workplace rule or policy, the employer must try to reasonably accommodate the employee’s religious belief or practice unless doing so would create an undue hardship on the business. This means that the employer must attempt a “workaround” the conflict before forcing an employee to choose between her religious practices and her job—a workaround may mean making exceptions to existing policies and work rules.

An employer’s process matters in attempting to reasonably accommodate religious beliefs at work. The employer cannot pass judgment on the validity of the religious belief or practice or make assumptions about what the employee can or cannot do. And, while the employee must have a “sincerely held” religious belief or practice in conflict with a work requirement, the religious belief or practice does not have to be mainstream or part of an organized religion. Unorthodox religious views or practices are equally entitled to accommodation under federal law.

Here is a framework for looking at the issue:

1.  Does the employee have a sincerely held religious belief or practice that conflicts with a work rule or policy?

It is up to the employee to notify the company or the union that a work rule collides with a religious practice. An employer should not guess or assume—and should certainly not survey employees’ religious beliefs on a hunch that accommodations may be necessary. The best practice is to publish a written accommodation policy that invites employees who need an accommodation to contact a human resources professional.

In most cases, an employee’s simple statement or brief explanation of the belief or practice and how it conflicts with a work rule is enough. Managers or human resources professionals should not wade into the murky waters of dissecting a worker’s religious belief or practice, and requiring a “note” from a pastor or minister is generally not a good idea. Of course, if an employee merely indicates a personal preference, rather than a fundamental religious belief or practice, an accommodation may not be necessary. For example, if an employee asks to be relieved of serving meat products in a restaurant because of his vegetarian preferences, rather than any religiously-based dietary objections, an accommodation is not necessary.

Also, if the employee has a history of acting inconsistent with the professed religious belief or practice, for example, regularly working Saturday shifts except during hunting season, the employer may have a factual basis to challenge the “sincerity” of the religious belief or practice. In a guidance published in 2008, the Equal Employment Opportunity Commission provides examples where employers went too far and attempted to assess the “validity” of the religious belief.

The conflict between religious practices and the job must be real and not imagined. In some cases, a brief discussion with the employee will solve the problem if the employee merely interpreted a work rule incorrectly. In many situations, however, the conflict is real. For example, a scheduled shift conflicts with Sabbath obligations; a dress code policy collides with religious garb; a rotating shift conflicts with prayer time, etc. In order to figure out what may work and what will impose an undue burden on business operations, a good faith “interactive dialogue” must happen. Employees who refuse to cooperate in the process in good faith lose their right to an accommodation.

2.  Can the company reasonably accommodate the employee’s religious belief or practice without creating an undue hardship on business operations?

The company does not have to provide the employee’s preferred or requested accommodation if another effective workaround exists. For example, if the employee asks to be moved to the second shift to accommodate his Sabbath obligations, but a third shift opening meets his needs and better suits the company’s production requirements, then the company can limit its accommodation to the third shift opening. However, whether an accommodation is reasonable or an undue hardship must be based on facts, not speculation or stereotyped assumptions. Managers who confer with employees about possible accommodations are more likely to be viewed by a court as acting reasonably. Too often, managers will summarily dismiss a request for an accommodation based on misguided assumptions and concerns that accommodations will “open the floodgates,” which are not legally sufficient justifications.

Possible religious accommodations are fact-specific and individualized. Examples include:

  • Assisting voluntary shift and schedule swapping with co-workers
  • Temporary or permanent schedule changes
  • Flexible scheduling and leave policies
  • Allowing staggered work hours
  • Modifying dress codes and grooming standards
  • Making exceptions to grooming standards
  • Allowing exceptions to uniform requirements
  • Lateral transfers and voluntary demotions
  • Contributing union dues to a substituted charity
  • Allowing limited expression of religious beliefs at work

The outer limits are accommodations that impose undue hardships on the company’s business operations. An undue hardship for purposes of religious accommodation is a much lower threshold than exists under the Americans with Disabilities Act. If the accommodation imposes anything more than a di minimus monetary cost or operational burden, it is not required. Unless the impact would be relatively minor, the company does not have to spend money or change its operations in order to prevent a conflict between the employee’s religious practices and his job. In deciding whether an undue hardship exists, the company should consider the following questions:

  • Would the company incur more than minor costs?
  • Would the accommodation create a safety or sanitation risk?
  • Would the accommodation violate a collective bargaining agreement or deprive other employees of their seniority rights?
  • Would the accommodation jeopardize customer relations, disrupt business sales, or require the employer to shift work to others?
  • Would the accommodation violate state or local law or the civil rights of other employees?

In the end, accommodating religious practices and beliefs at work requires flexibility. Internal pressures against making exceptions can be challenging and difficult. However, employers who engage in a good faith dialogue and consider ways to merge employee religious practices with work rules will reduce or eliminate liability under federal law.

Margaret (Meg) Carroll Alli is a shareholder in the Detroit Metro office of Ogletree Deakins.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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