Will A Court Think You Are Naughty or Nice This Holiday Season?

Dentons Davis Brown

Religious discrimination cases have been all over the headlines in 2015. The most recognizable case involves Kim Davis, the Kentucky county clerk who refused to issue marriage licenses in protest of the legalization of same-sex marriage.

Other popular cases involve an Abercrombie & Fitch applicant, Samantha Elauf, who was denied a job because her religious headscarf violated the company’s “Look Policy.” Another, Charee Stanley, a flight attendant with Express Jet Airlines, filed an EEOC complaint against the airline company after it placed her on leave for her refusal to serve alcohol because of religious reasons.

Similarly, two Muslim truck drivers were awarded $240,000 by a federal jury in Illinois as a result of their religious discrimination claim against Star Transport. The truck drivers were fired for refusing to ship alcohol after they told their employer that doing so violated their Islamic beliefs. So what do all of these cases have in common?

Religious Discrimination

These cases serve as a reminder for some employers (and unfortunately a wake-up call for others) of the need to educate yourself, and your managing employees, of the legal requirements pertaining to religious discrimination. First, like other protected characteristics, such as gender and race, employers may not discriminate against an employee or applicant on the basis of religion. Second, unlike gender or racial discrimination, employers have a legal obligation to consider whether a reasonable accommodation is necessary because of an employee or applicant’s religious beliefs or practices (this includes all religious beliefs that are sincerely held–even when the belief is one the employer is not familiar with, or in some instances may not even be a tenant of the particular religion.) When a person has a sincerely held belief, employers must assess if an accommodation is required.

Similar to the Americans with Disabilities Act (ADA), employers are expected to reasonably accommodate an employee or applicant’s religious beliefs or practices unless doing so creates an undue burden on the employer.

For example, an employer may need to accommodate an applicant by offering flexibility with his or her work schedule to permit an applicant to have her Sabbath day off of work. Alternatively, an employer may need to accommodate an employee who explains that he needs to wear his Jewish yarmulke even though it violates the company’s dress code policy.

In contrast, employers are not required to provide an accommodation (meaning an undue hardship exists) if the individual’s religious request compromises workplace safety or significantly increases the employer’s financial or administrative burdens. When determining whether an undue burden exists, a court will likely consider the size of the employer, the number of employees requesting an accommodation, the workplace environment, and the identifiable cost of providing the requested accommodation.

 Evaluating whether a reasonable accommodation is appropriate requires an interactive conversation with the applicant or employee. The Supreme Court clarified this year that employers do not need actual notice of an individual’s need for a religious accommodation to be liable for religious discrimination.

For example, in the Abercrombie & Fitch case, the clothing store should have engaged in a good faith conversation with Samantha Elauf about her headscarf – even though she did not ask for a reasonable accommodation. She could have been wearing the headscarf because of a bad hair day (which is unlikely) or because her religious beliefs required her to do so. Instead of engaging in a conversation, Abercrombie & Fitch speculated about Elauf’s need to request an accommodation. As a result, Abercrombie & Fitch’s decision not to hire Elauf was motivated, even if partly motivated, by its potential need to provide her with a religious accommodation of its “Look Policy.” This is a violation of the law because the employer improperly considered the applicant’s religious beliefs when making its hiring decisions.

Preventing Religious Discrimination Claims

These cases should motivate employers both large and small to learn how to prevent religious discrimination and religious discrimination claims. One easy way for employers to protect themselves is by having a clear religious discrimination policy that notifies applicants and employees of their right to request a reasonable accommodation. Further, continual training is important.

The counsel and senior management for the companies listed above likely know how to prevent religious discrimination claims, but not all of their employees were properly trained on how to recognize these issues. Employment manuals and trainings require time and money, but they are less expensive than negative lawsuits awarding successful employees and applicants damages, including attorney’s fees, court costs, and punitive damages.

Finally, employers should consider providing a religious accommodation for an employee—rather than no accommodation at all—even if it is not the one specifically requested. Employers are not required to give applicants and employees exactly what they are asking for, but rather to provide a religious accommodation if reasonable to do so

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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