Steer clear of holiday season’s discrimination hazards

December is often a time for office parties, gift exchanges, and general holiday cheer in the workplace, but the season also can bring claims of discrimination and harassment if employers aren’t mindful of a religiously diverse workforce. 

Legal hazards come in many forms. For example, non-Christians may feel discriminated against or harassed by all the attention surrounding Christmas. Also, non-Jewish employees may have resented menorahs displayed in cubicles earlier in the month in observance of Hanukkah. Employees wanting time off for religious observances also can spark resentment since everybody wanting time off may not be able to get it. Other employees may be upset by office celebrations tied to the season.

Employers can take precautions, however, to avoid problems.

Time off

December is a popular month for time off requests, and employers may not be able to give everybody what they want. But they need to guard against religious discrimination.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of religion, and employers need to reasonably accommodate requests for time off for religious reasons “unless doing so would cause an undue hardship for their business,” Julie A. Arbore, an attorney with Steptoe & Johnson in Morgantown, West Virginia, wrote in a November 2013 article in West Virginia Employment Law Letter. “In the context of religion, an accommodation creates an undue hardship if it will cause more than a minimal cost or burden to the employer.”

Arbore suggests accommodating employee requests for time off to attend religious services by allowing voluntary shift swapping or letting employees come in early, stay late, or possibly work through lunch to make up for hours missed.

Employers may face complaints when some people are allowed time off for religious reasons and others are denied, but employers should realize “that the mere fact that coworkers may complain about an employee’s request for religious accommodation in the form of time off work doesn’t necessarily prove undue hardship,” Arbore wrote. “Rather, a showing of undue hardship based on coworker interests generally requires evidence that the accommodations would actually infringe on the rights of coworkers or cause disruption of their work.”

What’s real?

Although employers need to accommodate employees wanting time off for religious observances, employers don’t need to fall for every ostensibly religious request. Title VII requires employers to reasonably accommodate sincerely held religious beliefs, but just what is a “sincerely held religious belief”?

Anyone who’s ever seen the Seinfeld episode in which George Costanza’s father invented “Festivus” – a holiday that George later tried to pass off to his employer as real – knows to be on the lookout for employees trying to take advantage of their employers.

Timothy M. Barber, an attorney with Axley Brynelson LLP in Madison, Wisconsin, wrote about the Festivus effect in the December 2012 issue of Wisconsin Employment Law Letter. “In today’s multicultural society, employers must deal with employees adhering to a wide variety of religious beliefs and practices,” he wrote. “Additionally, adherence to ‘personal religions’ has become increasingly popular as of late. Ever since the infamous Seinfeld ‘Festivus’ episode, employers have had to contend with employees who claim to adhere to ‘nontraditional’ religious practices during the holiday season. Sorting through what is a legitimate religious practice and what is not can be difficult.”

Decorations and religious symbols

Many employers decorate common areas for the season and allow employees to decorate their work areas. When holiday décor includes religious symbols, some employees object and consider the decorations religious harassment. Barber pointed out in his article that private employers don’t have to remove religious symbols just because an employee complains.

“Conversely, you are free to be a complete Grinch and ban all holiday symbols during the season,” Barber wrote. “However, if you allow employees of one religion to display religious symbols, you must allow employees of all faiths to do so. In other words, if you allow workers to display Christmas decorations on their cubicle, you also must allow workers to display Hanukkah symbols.”

Greetings and celebrations

It’s common for employers to instruct employees to send greeting cards to customers, wear holiday clothing, and participate in office gift exchanges during the season, but not all employees will welcome such efforts to promote holiday spirit.

“If an employee’s refusal to participate is based on religious beliefs, you cannot discipline him for lack of holiday cheer,” Barber wrote, citing an example of members of the Jehovah’s Witnesses denomination, who don’t take part in Christmas celebrations. He says one court held that an employer discriminated against a Jehovah’s Witness employee who was sent home for refusing to wear a Santa hat.

Michael J. Modl, a partner with Axley Brynelson, wrote on the issue in the December 2013 issue of Wisconsin Employment Law Letter. He pointed out that even employers that aren’t religious in nature may have religious displays and activities during the Christmas season. As long as the employer isn’t a government entity, such displays and activities aren’t illegal, but employers have to make sure they’re not harassing or discriminating against employees who don’t participate for religious reasons.

“You shouldn’t require employees to attend religious observances or activities,” Modl wrote. “Case law and EEOC guidance suggest that employers probably cannot require employees to attend holiday devotional services during business hours. If you invite a person who is associated with a particular religion to speak in the workplace during the holidays, don’t require employees to attend.”

• Tammy Binford
  Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR Web and print publications. In addition, she writes for Diversity Insight, which can be found on HRHero.com.