Note: This very interesting post is by attorney Allison West, principal of Employment Practices Specialists, in Pacifica, Calif. Thank you, Allison for contributing this to our blog. See below for more about Allison, and a Thompson Interactive Webinar she will be giving on this topic.
So, what is a religion, anyway? Not surprising, countless religions exist in our world. Both Title VII and the California Fair Employment and Housing Act (FEHA) define religion to include all aspects of religious observance, practice as well as beliefs. The beliefs must be sincerely held with the strength and conviction of traditional religious views. This means the belief can be formal or informal, theistic or non-theistic and typically include some type of moral or ethical beliefs as to what is right and wrong. Traditional, organized religions such as Christianity, Judaism, Islam and Buddhism are easy to spot; yet religious beliefs that are uncommon, new, followed by a small group or that seem illogical or strange would very likely still qualify as a religion.
Practice Pointers: You may have an employee who tells you about a religion unfamiliar to you or you question the sincerity of his or her sincerely held beliefs. The best practice is to assume most beliefs are sincerely held. Statistically speaking, the case is rare where an employee makes up the reason for needing an accommodation. Please do not assume an employee is insincere simply because some of his or her practices may deviate from the commonly followed tenets of his or her religion. For example, you know a religious Jewish man who wears a yarmulke (head covering.) The employee who has made the request is Jewish but does not wear a yarmulke. The absence of the head piece does not mean the person does not have a sincerely held belief. If some objective doubts exist, consider asking for additional information. You are permitted to ask for details about the religious practice or requirements.
If an employee tells you she cannot work Saturdays anymore because she needs to attend a religious service on Saturday mornings, ask if she could attend at different times, days, etc. Further, you could ask the employee to bring in any documentation from her religious entity that could support her need to attend that particular service.
Isn’t it supposed to be a REASONABLE accommodation?
An employee has the obligation to put his or her employer on notice for the need for a reasonable accommodation. No magic words are necessary. However, the employee must let you know the request is made due to a conflict between religion and work. The employee should cooperate with any requests for additional information. Unlike the reasonable accommodation requirements under the disability laws that require an “interactive process,” no such requirement exists for religious accommodation. With that said, engaging in an interactive process with your employee is simply good business. The efforts you make – and document – will go a long away with a jury and can help with a defense and possibly avoiding liability.
The big question remains: what is reasonable? According to the EEOC, the accommodation must eliminate, not just lessen, the conflict between religion and work, so long as the accommodation does not cause an undue hardship. A reasonable accommodation is any adjustment to the work environment that will allow the employee to comply with his or her religious beliefs. FEHA places a higher burden on employers than Title VII and requires employers to “demonstrate(s) that it has explored any available reasonable alternative means of accommodating the religious belief or observance…” The good news is employers are not required to provide an employee’s preferred accommodation if a more effective alternative is available. Using the example above, since the employee cannot work the Saturday shift you offer her the same hours on the Sunday shift. The employee tells you she has family obligations every Sunday and cannot work that day. You do not have to try and find another accommodation for the employee because offering the Sunday shift is reasonable. If you offered her the graveyard shift instead of the day shift that would be unreasonable.
Practice Pointers: Whenever possible, consider the employee’s proposed method of accommodation. An accommodation is not reasonable if it unnecessarily disadvantages the employee’s terms, conditions, or privileges of employment. What this means is that you cannot penalize an employee simply because they require an accommodation. The most common requests for accommodation are for scheduling, dress, displays of religious symbols or being excused from certain objectionable job duties. Typical methods of accommodation include: use of flex time, voluntary swaps, transfer, use of accrued leave, use of unpaid leave and changing job tasks.
To accommodate or not to accommodate? That is the undue hardship question
Employers have the defense of undue hardship when determining whether they can provide a reasonable accommodation. Significant differences exist between the “undue hardship” defense under Title VII and FEHA. Under Title VII the employer must show the proposed accommodation poses a “more than de minimis” cost or burden. Factors considered include not only direct monetary costs but also how the accommodation might burden the employer’s business. The FEHA imposes a much higher standard and requires an employer to show the propose accommodation causes “significant difficulty or expense.” In reality, this showing is very difficult for California employers who must make a real concerted effort to find an accommodation for the employee.
Practice Pointers: Potential undue hardship exists when the accommodation diminishes efficiency in other jobs, imposes on co-workers’ job rights or benefits, impacts workplace safety, or causes co-workers to carry a disproportionate share of potentially hazardous or burdensome work. Can customer or employee complaints constitute an undue hardship? Unlikely. Query the customer or co-workers as to the nature of their complaint. Simply because someone makes a complaint that the accommodation is unfair or makes someone feel uncomfortable is not enough to show an undue hardship. Be careful about policies or decisions based on “image” of the company. These types of policies can look like religious bias couched under “customer preference” in violation of state and federal anti-discrimination laws. Additionally, uniformity of appearance is rarely enough for undue hardship.
Courts typically respect seniority rights whether pursuant to a collective bargaining agreement or an employer system. A good rule of thumb is to find temporary solutions pending a permanent accommodation such as a bid process, etc. Keep the dialogue going and talk to your employees about voluntary swaps or other options.
At the end of the day, employers should train managers and supervisors on how to recognize religious accommodation requests from employees and not just answer “no.” Religious accommodations are made on a case by case basis and remember that higher burden we have in California. Finally, developing policies, procedures and forms for processing religious accommodation requests will streamline your process and keep your processes consistent.
Allison is a member of the State Bar of California and holds a Senior Professional in Human Resources certification. She will be giving a webinar entitled “Religious Accommodations in the Workplace” on Tuesday, Nov. 1 from 1-2:30 p.m. (Eastern Time) for Thompson Interactive.