by Brent Siler
Unless you have been hiding under a rock the past few weeks, you know that the U.S. Supreme Court legalized gay marriage in all 50 states when it issued its Obergefell decision on June 26. Much of the discussion about the ruling has revolved around its effect on people with sincere religious objections to gay marriage and balancing their right to religious freedom and expression with the newly approved constitutional protection of gay marriage. 
The tension between same-sex marriage and the right to religious expression has inspired much debate and controversy. Although you may hope otherwise, you can expect this issue to find its way into private employment settings sooner or later when employees’ sincere religious beliefs come into conflict with different beliefs or workplace policies.
We all know that Title VII of the Civil Rights Act of 1964 protects employees from religious discrimination, but how far does that protection go? What are the limits on an employee’s right to have her religious practices honored at work? What should you do when an employee’s religious beliefs conflict with a workplace policy or a diversity initiative? There are several key factors to keep in mind when dealing with such issues.
Broad definitions and requirements
First, “religion” is a very broad concept under employment discrimination laws. Rather than trying to provide a finite definition, Title VII broadly defines “religion” as any sincerely held religious belief. That may include beliefs that are new or uncommon, and it doesn’t matter whether an employee belongs to a formal church or whether only a few people (or no one) recognize the employee’s beliefs. A belief may be religious if it is an “ultimate idea” about life, purpose, or death, even if it does not involve a deity. Thus, Title VII’s protections extend well beyond popular and well-known religions such as Christianity, Judaism, Buddhism, Islam, and Hinduism.
However, not all sincerely held beliefs are religious. Social, political, and economic philosophies typically are not included. Title VII’s broad definition of religion can be a problem because while we all might recognize a request not to work on the Sabbath as a Christian or Jewish issue, the law extends well beyond that and may include religious observances or practices that you are not familiar with or that sound questionable.
Second, in addition to prohibiting religious harassment and discrimination, Title VII requires employers to accommodate employees’ religious practices unless they cause an undue hardship, a requirement similar to the concept of disability accommodations in the Americans with Disabilities Act (ADA). That means religious discrimination claims can arise not only when an employee is fired or demoted but also when his beliefs are not accommodated. In a much less publicized decision issued shortly before Obergefell, the Supreme Court clarified that an employee does not have to prove that the employer actually knew of her need for a religious accommodation. Thus, the duty to accommodate can arise even if an employee does not ask for a religious accommodation.
So if religion is such a broad concept that requires employers to accommodate employees’ religious beliefs, why do we not see more litigation over it? Most likely because Title VII sets a much lower standard than the ADA does for employers to show that a proposed accommodation would create an undue hardship.
In religious discrimination cases, an employer may establish undue hardship by showing that an accommodation is costly, compromises safety, decreases workplace efficiency, infringes on other workers’ rights, or requires other employees to perform more than their share of potentially hazardous or burdensome work. In other words, accommodations that impose more than a de minimis (minimal) burden on the operation of the employer’s business will create an undue hardship.
Not every minor inconvenience will constitute an undue hardship, however. An employer’s policy against a particular practice, an employee dressing in a way that is contrary to the image the employer wants to project, or the fact that some customers do not like an employee’s religious practices generally will not be enough to establish an undue hardship absent additional evidence.
Case studies
With those concepts in mind, let’s take a look at two situations in which issues often arise—dress codes and religious harassment.
Suppose you are the HR manager of a restaurant chain. One restaurant host is a Sikh who wears a turban on his head. Some customers have expressed dismay over the turban, and it conflicts with your dress code, which prohibits hats and other head attire. Can you make the employee remove his turban? Probably not. The fact that you have a dress code is not enough to show that accommodating the employee’s request to wear a turban is an undue hardship. Moreover, the fact that customers have complained is not enough to create an undue hardship. Can you move the employee to another position in the back of the restaurant so he is not in direct contact with customers? Again, the answer is likely no unless there is a demonstrable hardship on your operations.
The second problem area is religious harassment. Religious harassment claims often arise when an employee attempts to proselytize another worker or seeks to display a religious icon or symbol in the workplace. Such situations often lead to a conflict between employers’ duty to accommodate employees’ religious practices and their duty to prevent harassment.
For example, let’s say an employee with sincerely held Christian beliefs seeks to display in his cubicle a Bible verse that describes homosexuality as a sin. The employee one cubicle over is gay. The employees have had several amiable discussions about religion and homosexuality, but the gay employee wants to discontinue the discussions and comes to you, claiming harassment. When you discuss the situation with the other employee, he claims religious harassment.
In analyzing the situation, there are two things to keep in mind. First, don’t try to ban all religious discussion or expression in the workplace. The Equal Employment Opportunity Commission (EEOC) takes the position that religious accommodations can include allowing religious expression and discussion in the workplace. Thus, a blanket prohibition on religious discussion will likely be problematic. Second, you do not have to allow an employee to engage in unwanted religious discussions with another employee. Even the EEOC says that if an employee complains about another employee’s proselytizing, you can require the proselytizing employee to stop or face discipline. If proselytizing disrupts the workplace or interferes with work or customers could interpret an employee’s actions as your message, you generally are within your rights to ask the employee to stop.
So how should you respond to the Bible verse situation? The same way you would respond to any harassment complaint—investigate the allegations, decide what happened, and take reasonable steps to end any harassing conduct. In this situation, you are really dealing with two harassment claims, and you must investigate both of them. As with any investigation, take statements from employees, identify witnesses, and decide what happened based on the facts.
The only wrinkle in this example is employers’ duty to reasonably accommodate employees’ religious practices. The duty to accommodate generally does not require an employer to allow an employee to proselytize another worker against his wishes. Thus, you will likely need to warn the proselytizing employee that he must cease religious discussions with the other employee or be subject to discipline. You would likely be within your rights to ask the employee to take down the Bible verse or propose an accommodation (e.g., asking the employee to move the verse to a location where the other employee cannot see it).
Bottom line
Religious expression and accommodation issues are more common than ever, and religious harassment claims likely will continue to be a problem. As the above examples illustrate, these issues can be difficult. Employers must be aware of their obligation to prohibit discrimination and harassment while accommodating religious expression in the workplace.
Brent Siler is an attorney with Butler Snow LLP in Memphis, Tennessee. He may be contacted at brent.siler@butlersnow.com.
The common theme is to focus on the interactive process, have open ongoing dialogue on the best feasible solution and, if all avenues exhausted and employee is uncooperative, move forward with the performance piece.