Last year, the Office of Federal Contract Compliance Programs (OFCCP), a division of the U.S. Department of Labor (DOL), issued a directive related to federal contractors’ compliance with Executive Order 11246. In conjunction with a variety of federal statutes, Executive Order 11246 prohibits federal contractors and subcontractors from discriminating against job applicants and employees on the basis of their race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as protected veterans. The new directive from the OFCCP is at least partly a response to the U.S. Supreme Court’s decision overturning the Colorado Civil Rights Commission’s determination that a baker’s decision not to create a custom cake for a gay wedding, based on his religious beliefs, was discriminatory. Let’s take a look at the guidance and see if we can apply its meaning beyond the arena of federal contracting.
In the case before the Supreme Court, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the baker cited his religious principles in defending his position. The new OFCCP guidance reiterates that the agency and employers shouldn’t pass “judgment upon or presuppose the illegitimacy of religious beliefs and practices.” It further states that federal contractors must comply with the Religious Freedom Restoration Act (RFRA), and people must be able to practice their faith without facing discrimination or retaliation by the federal government.
Taking the guidance and recent case law into account, it isn’t clear what this means in practical terms for most federal contractors. Federal contractors are clearly charged with supporting equal opportunity in employment, having programs through which they take affirmative steps to ensure equal opportunity, and safeguarding the rights of employees. The OFCCP’s directive doesn’t address the core issue that arose in the Colorado case: what to do when two legally protected rights are in conflict. The OFCCP appears to note that a conundrum exists and indicate that it will pursue potential regulatory modifications to apply the changes in case law to the current rules and provide better clarification. In the interim, employers are left guessing.
Jesus or Muhammed or Buddha at Work
Dr. Carl Jung is said to have stated, “Called or uncalled, God is present.” While theologians and scholars debate Jung’s meaning, God, and an individual’s interpretation of God, has become increasingly present in the workplace as various civil rights laws as well as societal expectations challenge our interpretation of what is and isn’t acceptable workplace conduct. The recent Colorado case differs from the religious liberty cases we usually address because it didn’t involve a conflict over religion in the workplace.
Employment cases involving religious beliefs and accommodations in the workplace have been decided in favor of both employers and employees. In a case against Abercrombie & Fitch, for example, the Supreme Court found the retailer discriminated against an applicant who wore a hijab to her job interview when it refused to hire her because she was wearing the Islamic head covering. On the flip side, the Court ruled in favor of Hobby Lobby on its religious objection to the Affordable Care Act (ACA) requirement that it provide birth control coverage to its employees. These cases provide a springboard into the practical issues that frequently crop up when people who practice different religions and adhere to various religious beliefs interact within a single workplace.
The conflict between workplace dress codes and employees’ desire to abide by certain religious mandates related to their clothing or personal grooming has been a frequently litigated issue. In addition to disputes over female employees who practice Islam wearing hijabs in the workplace, there have been cases in which male employees have refused to shave their facial hair because their religion forbids it (e.g., Sikhism). Traditionally, courts have ruled that employers must reasonably accommodate employees’ religious beliefs and practices if the accommodation doesn’t create a safety risk or directly interfere with the employee’s performance of his job duties.
In cases involving facial hair, male employees should be allowed to wear beards unless doing so creates a safety risk (e.g., the job requires the employee to wear a tightly fitted respirator that would be inhibited by a beard). If a hijab presents safety issues for an employee in a manufacturing job because long or trailing pieces of clothing could be caught up in the machinery, a reasonable accommodation might be to require her to wear the head scarf tightly wrapped, with no trailing ends.
Some religions require female adherents to dress modestly, meaning they must fully cover certain body parts and, in some instances, are forbidden from wearing pants. Organizations such as long-term-care or assisted living facilities whose employee uniforms include pants for safety reasons (i.e., ease of movement and quick response to patient emergencies) should make an individualized assessment to determine whether an employee required to dress modestly may substitute a long skirt for her uniform pants.
Certain religions, as part of their outreach or proselytizing, may ask members to identify themselves with name tags at all times. This is a good example of a situation in which an employer may need to assess a preference rather than a religious requirement. While some religions certainly may require followers to identify themselves as members, others might simply prefer that members wear name tags. Moreover, identification with the religious group may vary from spiritual leader to spiritual leader or may simply be an employee’s preference.
Under the law, employers must accommodate employee’s religious requirements; preferences do not have to be accommodated. In this situation, you may need to make a reasonable inquiry into whether an employee’s request to wear a name tag identifying himself as a member of a certain religion is a preference or a requirement when assessing whether any accommodation of your uniform policy is necessary.
Certain religions may require their adherents to avoid working on certain days of the week, such as from sundown on Friday to sundown on Saturday. Other religions may require employees to participate in religious observances such as fasting, penance, or pilgrimages on days that aren’t recognized as federal holidays. While you aren’t required to create an unending and expanding list of paid holidays, you should allow employees to request time off for religious holidays. The time off may be either paid or unpaid.
Prayer at Work
Prayer at work has been a contentious issue, particularly when management “approves” a specific type of prayer. Employees must have the right to opt out of any workplace prayers or religious observances, and management may not single someone out for not being a team player because he chooses not to participate.
If employees wish to hold Bible studies, Koran studies, prayer groups, or convocations, you should give them equal access to meeting rooms if you allow other non-work-related groups to hold meetings on your premises. Again, no employee should be forced to attend, no employee should be retaliated against for failing to attend, and attendance or nonattendance should have no impact on workplace issues.
The Equal Employment Opportunity Commission (EEOC) has indicated that if an employee needs to use a quiet area of the workplace for prayer during break time, his request should be accommodated. However, an employer “is not required to give precedence to use the facility for religious reasons over use for a business purpose.”
While it should go without saying that no employee should make jokes about another employee’s religion, religious preferences, or beliefs, the current political climate indicates that we need to say it. In fact, employers should say it regularly and consistently and enforce the expectation that employees will be respectful of one another’s beliefs.
While sexual harassment and disability discrimination are often discussed during workplace training, religious discrimination may not be fully addressed, maybe because it isn’t viewed as an emergent problem. Training budgets and time are short, so trainers must focus on a limited number of issues. However, supervisors and managers should be aware that a wide array of workplace conduct can create religious discrimination issues.
For example, some religions prohibit members from being touched by people of the opposite sex, and other religions forbid members from participating in certain celebrations, including birthday or Christmas parties. A significant number of religions have rules addressing food, such as a prohibition on mixing of certain foods or eating certain foods altogether (e.g., meat). If every office celebration you hold features pork fondue, you may be marginalizing employees without even realizing it.
What Happens When Two Employees Just Can’t Agree?
The EEOC recognizes that employees may want to display religious icons or other faith-based items at their workstations or may even proselytize to their coworkers. Sometimes, employees feel that a religious accommodation provided to a coworker simply isn’t fair and improperly prioritizes the coworker’s religion over others’ needs. It can be difficult to manage employee interactions when “You’re a bigot” goes head-to-head with “You’re going to hell.”
This issue has cropped up not just with regard to religious beliefs but also with other deeply held beliefs, such as political opinions and affiliations. Here are a few practical tips for dealing with what are essentially—let’s be honest—unresolvable conflicts:
- Model professionalism. It’s hard to require employees to behave in a professional manner if you don’t do so yourself. If you make jokes about an employee’s religion or roll your eyes behind someone’s back, knock it off.
- Promote professionalism. You’re going to hear that word a lot. Basically, everybody needs to behave like adults. Employees should recognize that they won’t agree on everything, and they don’t always prioritize things the same way as their coworkers. Each employee is an individual well-rounded person, defined not only by her religion but also by many other traits. Remind employees that everyone doesn’t believe or worship the same thing—and that’s OK. Just because you don’t celebrate Walpurgisnacht or Beltane, that doesn’t mean it isn’t a sacred time for someone else. Be both open-minded and respectful of other people’s beliefs.
- Take it down a notch. If employees disagree about things that are unrelated to the workplace, such as whether the Marlins or the Padres are currently the worst team in baseball (Marlins), what’s the role of the designated hitter, or if you should put ketchup or mustard on an Iowa State Fair corn dog (mustard), you, as a supervisor, can tell them to simply stop discussing those topics. Sometimes, practicing respect and professionalism means to keep your mouth shut. Employees can be asked to refrain from engaging in discussions that interrupt the workflow or prevent others from performing their jobs. Certainly, if employees’ conduct devolves into discriminatory or harassing behavior (e.g., inappropriate jokes or disparate treatment) you should address the situation through your antiharassment policy and procedures.
What’s the final takeaway from all of this for employers? In the words of the EEOC, “Employer-employee cooperation and flexibility [is] key.” Everything from assessing an employee’s need for a religious accommodation, to engaging in an open and interactive process for determining what constitutes a reasonable accommodation, to modeling professionalism and training employees on appropriate behavior, is a building block and a strategy for addressing religious issues in the workplace.