Diversity & Inclusion

Nonreligious observance may require religious accommodation

by Maggie LeBato and H. Mark AdamsChurch

Both federal and state laws prohibit employers from discriminating against employees because of their religion. The courts have further ruled that the prohibition against religious discrimination requires you to accommodate your employees’ sincerely held religious beliefs unless it would cause undue hardship to your business. You might assume, then, that for an employee to prove religious discrimination, she would have to demonstrate both the sincerity of her belief and that the belief is actually “religious” in nature. According to a recent decision from the 5th Circuit in New Orleans, however, that isn’t necessarily the case.

Instead, a three-judge panel of the 5th Circuit decided 2-1 that a nonreligious observance, such as a community service event at a church, might require accommodation. Let’s take a look at what happened in this case and, more important, what it means for you.

That’s her prerogative

Lois Davis worked for Fort Bend County as a desktop support supervisor and was responsible for supervising about 15 technicians in the IT department. In 2011, Fort Bend was preparing to move its IT equipment to a new building. All technical support employees, including Davis, were involved, and as the desktop support supervisor, Davis was expected to assist with testing the computers and make sure they were set up properly in the new location. The installation was scheduled for the July 4 weekend, and all IT employees were required to be present.

At the end of June, Davis informed her manager that she would be unavailable to work the morning of the move because of a “previous religious commitment.” She claimed she needed to be off work to attend a special church service that day but said she was willing to come in afterward. And what was her “religious” commitment? Attending a “community service” event that involved breaking ground for a new church and feeding the attendees.

Although Davis arranged for a replacement to cover her absence, her supervisor nonetheless declined to excuse her absence, warning that it would be grounds for a write-up or termination. She didn’t heed the warning, didn’t report to work, and was fired.

Davis filed suit in federal district court for religious discrimination, but the district court found in favor of Fort Bend and dismissed her claim. She then asked the 5th Circuit to take another look at her case. The 5th Circuit disagreed with the district court and reversed the decision, ruling in favor of Davis.

Court’s rationale

To establish a case of religious discrimination, Davis had to present evidence that she held a bona fide religious belief, her belief conflicted with a requirement of her employment, her employer knew about her belief, and she suffered an adverse employment action (e.g., she was fired) because of her failure to comply with her employer’s requirement. Davis and Fort Bend agreed on everything except whether her observance of the Independence Day weekend event at her church was based on a bona fide religious belief.

The 5th Circuit ruled that the issue turned on whether Davis sincerely believed she was religiously compelled to attend and participate in the special service at her church. In the court’s view, her belief that she was religiously compelled to attend the event was supported by her testimony that she was a devout member of her church, attended services every weekend, volunteered on church projects, and believed strongly that she “needed” to be at church that weekend as a religious matter.

The 5th Circuit also rejected Fort Bend’s affirmative defense that accommodating Davis’ absence would have resulted in an undue hardship. According to the court, Fort Bend couldn’t demonstrate undue hardship because Davis had arranged for a substitute to fill in for her and there was no indication that the IT project she missed was such a large and complex undertaking that her participation was necessary or that her substitute wasn’t qualified to fill in. Lois M. Davis v. Fort Bend County, Case No. 13-20610 (5th Cir., Aug. 26, 2014).

The takeaway

The 5th Circuit’s ruling in this case is significant because it’s contrary to the decisions of several other federal circuit courts of appeal that an employee must prove both that a belief is religious in nature and that it is sincerely held. Under the 5th Circuit’s ruling, when examining an employee’s religious belief, practice, or observance and deciding whether an accommodation is required, you can’t question whether the employee’s belief, practice, or observance is actually central to a particular religion. Instead, the issue appears to turn on the employee’s subjective motivation and whether the belief, practice, or observance is “religious” to her. If an employee’s religious belief, practice, or observance conflicts with a condition of employment, you may have to focus on her subjective sincerity rather than inquire into the religious nature of her request for an accommodation.

To avoid a similar result in your workplace, treat all employees the same, regardless of their religious beliefs. Your failure to do so can lead to discrimination claims. Just because an employee’s religious belief isn’t similar to your own or something you’re familiar with doesn’t mean it’s not religious in nature. Many belief systems qualify as “religion” under the law. The bottom line is, you’re obligated to accommodate the sincerely held religious beliefs, practices, and observances of your employees that conflict with their work obligations to the extent that the accommodation doesn’t cause you an undue hardship.

Maggie LeBato is an associate in Jones Walker LLP‘s labor and employment practice. You may contact her at mlebato@joneswalker.com or 504-582-8262.

H. Mark Adams is a partner in Jones Walker LLP‘s labor and employment practice. You may contact him at adams@joneswalker.comor 504-582-8258.

Leave a Reply

Your email address will not be published. Required fields are marked *