Most employers know that federal and state civil rights laws prevent them from discriminating against employees on the basis of their religious beliefs and practices. But when you hear the phrase “reasonable accommodation,” you usually think of your duty under the Americans with Disabilities Act (ADA) to accommodate an employee with a disability. Many employers are unaware that civil rights laws require them to make reasonable accommodations when their employees’ religious beliefs and practices conflict with a work rule or practice. In other words, under certain circumstances, employers can be charged with religious discrimination for treating employees differently because of their religious faith or practices. This unique accommodation requirement sets religious discrimination claims apart from most other discrimination claims.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including discrimination
A requirement or just a desire?
A recent case is a prime example of this religious accommodation requirement. A department store employee believed his Christian faith required him to attend his church’s Wednesday evening, Sunday morning, and Sunday evening church services. The employee was hired as a door greeter, and the store avoided scheduling him on Wednesday evenings and Sundays. When he was scheduled to work those days, he either traded shifts or took a vacation day.
Five years into his employment, the store eliminated the door greeter position and offered the employee a cashier position. The store could no longer guarantee him time off every Wednesday night and Sunday because it scheduled most cashiers to work a majority of Sundays and required all cashiers to work certain Sundays, such as when the store had a big sale. Nevertheless, it offered the employee a schedule under which he could attend at least one church service per week. The employee refused the proposal and ended his employment.
The employee sued, alleging the store failed to accommodate his religion because it wouldn’t guarantee him Wednesday nights and Sundays off. The store argued that complying with his demands would have forced it to alter other schedules and caused “a significant scheduling strain” on the store. The court dismissed the employee’s claim.
The court found that the employee failed to prove that attending every service offered by his church was a genuine requirement of his faith or that there was a real conflict between the proposed work schedule and his faith because the schedule would have allowed him to attend at least one service a week. Thus, if the employee took the job, he would have had a reasonable opportunity to worship, and accommodating his request to have Wednesday nights and Sundays off would have created an undue hardship on the store.
Practical advice for accommodating religious beliefs and practices
So how do employers position their companies for a positive result when faced with a request for a religious accommodation? First, if an employee informs you that a workplace rule or requirement conflicts with his religious beliefs or practices, be aware depending on your number of employees, you may have a duty to make a reasonable accommodation unless doing so would cause an undue hardship. (The federal Title VII of the Civil Rights Act of 1964 applies to employers with 15 or more employees, while some states have laws that apply similar requirements to employers with less than 15 employees employees.)
State-by-state comparison of 50 Employment Laws in 50 States, including religious discrimination and accommodations
Second, talk to the employee. A reasonable accommodation is one that eliminates the conflict between the employee’s work requirements and his religion. The employee is in the best position to know the parameters of his beliefs, and the best way for an employer to determine the exact nature of the conflict and how to resolve it is to speak with him directly. In fact, case law encourages employers and employees to engage in “bilateral cooperation,” recognizing that it is the employees who best understand their religious beliefs and requirements and the employers that best understand the needs of their businesses and the intricacies of their operations.
Third, to better facilitate the interactive process, have a specific policy in your employee handbook addressing religious accommodations and how employees should request them. The policy should require employees to specify in writing what their religious beliefs require and how those beliefs affect their present work situation. Getting the accommodation request in writing focuses the inquiry and protects you from later claims that other issues were raised but not considered.
The policy also should require the employee to specify in writing the accommodation he thinks is needed (e.g., time off and how much, exemption from a dress code, abstaining from activities that violate religious requirements, display of religious symbols or icons, prayer during certain periods, or the need to proselytize to coworkers). By pinning the request down, you can decide whether the accommodation is reasonable or would create an undue hardship. You can also begin formulating alternative accommodations if the requested one isn’t workable.
Fourth, after you receive the written request, determine whether it imposes an “undue hardship,” which is vaguely defined by the courts as “more than a de minimis ” (or minimal) hardship. Examples include increases in the cost of doing business, decreases in efficiency or production, violation of a collective bargaining agreement, creation of a safety or health risk, or a tangible negative impact on coworkers. If the requested accommodation creates an undue hardship, you should document in a letter or memo to the employee specifically why the request isn’t feasible and offer an alternative. The employee should be offered an opportunity to respond if the proposed alternative does not eliminate the conflict.
By documenting the interactive process in this fashion, an employer creates a detailed record that should protect it from future legal liability. The more you document a good-faith effort to identify both the employee’s specific religious needs and any available accommodations, the less likely a court will second-guess your decision concerning either the reasonability of the accommodation offered or your assertion of an undue hardship.
The employee must make a good-faith effort to satisfy his religious needs through the accommodation either already available or offered by the employer during the interactive process. For example, if the employee needs a day off to attend prayer service, he should use an available personal day rather than requesting an additional day off. If you agree to allow the time off but require the employee to make up the missed time on a weekend shift, he can’t demand to receive the day off without pay (unless you regularly allow workers to take unpaid leave days for nonreligious matters) instead. In short, the employee can’t insist on a different accommodation if the offered accommodation eliminates the conflict. You only need to accommodate the actual conflict, not the employee’s “purely personal preferences.”
Audio Conference: New EEOC Religious Discrimination and Accommodation Guidance
Finally, if there is any question about whether a requested accommodation creates an undue hardship or whether a proposed alternative is “reasonable,” we strongly recommend engaging the assistance of experienced legal counsel to help you through the process.
With the rising cost of litigation, you almost always save money in the long run by seeking early legal advice rather than waiting until an Equal Employment Opportunity Commission charge or lawsuit is filed. By that time, it is often time for “damage control” rather than “damage avoidance.”