Religion is defined broadly under Title VII of the Civil Rights Act of 1964 (Title VII) to include all aspects of an individual’s belief, observance, and practice. Religion includes unorganized religions and less common systems of belief so long as there is a sincere and meaningful belief in a God.
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Examples of Religious Practices
Protected religious practices include praying and attending religious worship services; wearing religious attire or symbols, such as rosary beads, hijabs, and turbans; and religious expressions such as displaying religious objects and symbols. Refraining from certain activities, such as working during the Sabbath, is also a religious practice. It’s important for employers to understand the basics about the following three related areas in order to respond appropriately and avoid potential litigation:
1. Reasonable Accommodations
When an employer knows or suspects that an applicant or employee has a conflict between his religious practice and job requirements, the employer should explore the possibility of making a reasonable accommodation. It is lawful, and even required, that the employer discuss the conflict and possible accommodations with the individual, even if the applicant or employee does not request an accommodation.
Reasonable accommodations may include flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunchtime in exchange for early departure, staggered work hours, alternative dress and grooming, and allowing an appropriate space for prayer.
The employer does not have to provide the reasonable accommodation proposed or preferred by the employee. An employer may fashion an accommodation that protects the religious practice yet is in the best interest of its business.
An employer is not required to make a religious accommodation if it would result in an undue hardship, meaning that it would impose more than de minimis cost on the employer’s business operations. An undue hardship can include both financial costs, as well as nonmonetary costs, such as an accommodation that poses a health or safety risk in the workplace.
In assessing whether an accommodation would cause more than a de minimis cost, the Equal Employment Opportunity Commission (EEOC) will examine the cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will need the accommodation.
For example, if an employee requests time off for religious observance, an employer should explore possibilities such as rescheduling work hours, granting sufficient time off for the service attendance, or other possible accommodations prior to claiming an undue hardship.
Generally, administrative costs incurred to change schedules may be considered de minimis. However, a request for time off that requires other employees to receive overtime compensation or premium wages does not have to be honored. Moreover, an employer is not required to force other employees to do the work of the employee requesting accommodation. An inability to have work coverage may be an undue hardship.
Employers are not required to permit employees to proselytize their religious beliefs, and evangelizing to customers may even amount to an undue hardship which may be prohibited.
A coworkers’ disgruntlement or jealousy about the religious accommodation is not considered an undue hardship. A customer’s preference against certain religions is also not an undue hardship.
2. Grooming and Dress Issues
Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf) or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks).
A religious request to wear a long skirt rather than shorts required by a company dress code is typically an example of a required accommodation. If other employees seek exceptions to the dress code for nonreligious reasons such as personal preference, the employer is permitted to deny their requests, even though it grants a religious accommodation.
An employer may accommodate an employee’s religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work, if the employee’s religious beliefs permit covering the attire or item.
An employer may prohibit an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns. As an illustration, allowing an employee in a manufacturing plant to wear a long skirt when the skirt poses a safety hazard may be an undue hardship. However, an employer should explore alternative accommodations that would permit the employee to adhere to religious practices and would permit the employer to avoid undue hardship.
On the other hand, an employee who wears long hair pursuant to his Native American religious beliefs may not be required to cut his hair due to a grooming policy requiring hair to be “short and neat.” An employer may be able to accommodate the long hair without undue hardship by having the employee wear his hair in a ponytail or held up neatly with a clip.
3. Harassment
Religious harassment under Title VII may occur when an employee is subjected to unwelcome conduct based on the employee’s religion when such conduct unreasonably interferes with the employee’s work performance by creating intimidation, hostile, or an offensive work environment. An employer is liable for harassment by coworkers and third parties where it knew or should have known about the harassment and failed to take prompt corrective action.
More religious charges are being filed by employees, and there are many traps for those who do not stay current with case law. It is best to obtain advice from an employment law specialist prior to making decisions about religious issues in the workplace.
 Randy Gepp is a member of Taylor English’s Employment and Labor Relations practice group in Atlanta. His practice consists of representation in employment discrimination, labor relations, contracts and administrative law matters before all federal and state courts, the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB). |