Diversity & Inclusion

Wiccan what? Religious accommodations and sincerely held beliefs

by Steve Jones

Q If an employee asks for time off for her religious beliefs, can I legally question her about her religion (e.g., what her religion is and why she needs off)?  Wiccan

A Most likely, yes. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion. The Act requires employers with 15 or more employees to make reasonable accommodations for a worker’s sincerely held religious beliefs unless doing so would impose an undue hardship on business operations. Under Title VII, the “undue hardship” defense requires an employer to show that under the particular circumstances, the proposed accommodation poses more than a minimal cost to or burden on the employer.

Determining the accommodation

In certain settings (e.g., a job interview), it is unlawful for an employer to directly question an applicant or employee about his religious beliefs. However, if an employee seeks a religious accommodation, it is his duty to make the employer aware of both the need for the accommodation and the fact that the requested accommodation is due to a conflict between religion and work.

Employer-employee cooperation and flexibility are important when searching for a reasonable accommodation. If an accommodation isn’t immediately apparent, you should discuss the request with the employee to determine possible solutions. If you request additional information to reasonably evaluate the request, the employee should provide it. For example, if an employee requests a schedule change to accommodate daily prayers, you may need to ask for information about the religious observance ― e.g., the time and duration of the prayers ― to determine whether the accommodation can be granted without posing an undue hardship on business operations.

Sincerely held beliefs

Keep in mind that you don’t have to grant every request for religious accommodation. Title VII requires you to accommodate only religious beliefs that are sincerely held and can be accommodated without undue hardship. Factors (alone or in combination) that might undermine an employee’s assertion that he has a sincerely held religious belief include:

  • the employee has behaved in a manner that is markedly inconsistent with his professed belief;
  • the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • the timing of the request renders it suspect (e.g., it follows a previous request by the employee for the same benefit for secular reasons); and
  • you have reason to believe the accommodation isn’t being sought for religious reasons.

None of the factors is dispositive. For example, although previous inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs―or degree of adherence―may change over time. Thus, an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. You shouldn’t assume that an employee is insincere simply because some of his practices deviate from the commonly followed tenets of his religion.

Bottom line

Under Title VII, you are required to make religious accommodations so long as doing so doesn’t pose an undue hardship. Although you generally must refrain from discussing religion with an employee, you may (1) ask for additional information to best accommodate the employee or (2) make a limited inquiry if you suspect that the employee’s religious beliefs are not sincerely held.

Steve Jones is a partner with Jack Nelson Jones & Bryant, P.A., practicing in the firm’s Little Rock, Arkansas, office. He may be contacted at sjones@jacknelsonjones.com.