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Religious Accommodation in the Workplace:
Your Rights and Obligations |
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Introduction
Religious employees often confront conflicts between their employment obligations and their religious obligations. What follows is meant to serve as a general guide about protections for religious rights provided by federal employment law. Please be aware that many states have their own laws which may differ from the federal law.
What does federal law require of an employer?
Federal law requires an employer to “reasonably accommodate” an employee’s religious observances, practices and beliefs. However, an employer need not “reasonably accommodate” if the employer can show that accommodation would cause an “undue hardship” on business.
What constitutes “reasonable accommodation” and “undue hardship” depends on the facts in a particular situation. Regardless of whether an accommodation is ultimately possible, the employer bears the burden of showing that a serious attempt was made.
Are all employers required to try to accommodate their employees’ religious needs?
The federal law applies only to companies with more than 15 employees, although your state’s law may protect employees of smaller companies.
Many employers also have come to realize that in addition to the legal requirement to accommodate religious employees, a commitment to religious accommodation can improve employee morale. Moreover, accommodation in the workplace is a method of retaining valued employees who are religious.
What is a “reasonable accommodation”?
Requested accommodations vary — an employee may need a particular day off each year for a religious holiday; or to refrain from work every week on his or her Sabbath; or to wear religious garb; or to have a place to pray. An employer must try to arrange for these religious obligations.
An employer may not simply refuse to accommodate an employee. If the employer claims that accommodation is not feasible because it would result in undue hardship, the employer must demonstrate the effect accommodation would have on the business; that is, the employer must prove the undue hardship.
The employer is not mandated to provide the specific accommodation requested by the employee. As long as the employer has reasonably accommodated an employee’s religious needs, the employer need not consider the employee’s alternative suggested accommodations even if the employee's preferred accommodation would not cause undue hardship to the employer. Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986).
Some examples of possible accommodations may include shift swaps between employees, voluntary assignment substitutions, flexible scheduling (allowing an employee to work on Sundays, Christmas or other national holiday in place of the day he or she needs off), lateral transfers to other positions in the company, and use of lunch time in exchange for early departure. An employer could allow an employee who is a Friday-night Sabbath observer to work longer hours on Monday through Thursday to enable the employee to leave early on Friday to be home for the Sabbath.
Similarly, an employer should not schedule tests or training in a manner that totally precludes the participation of Sabbath observers. As with the scheduling of work, the employer must attempt to accommodate the religious needs of the employee. The employee cannot be unreasonable in demanding accommodation. For example, if the same test or training is being given at another location on another day, the employee may be required to take it elsewhere. In addition, the employee may be required to use personal time to take the test or training.
Must the employee be paid for time taken off for religious observance?
An employer is generally not required to pay the employee for time taken off for religious observance. The United States Supreme Court determined that allowing an employee to take unpaid leave for holiday observance would generally be a reasonable accommodation with the added caveat that unpaid leave would not be a reasonable accommodation when paid leave was provided for all purposes except religious ones.
What is an “undue hardship”?
Not only must there be a reasonable accommodation available, the accommodation must not cause undue hardship on the employer. Neither federal civil rights law nor the courts have clearly defined “undue hardship. ”Again, different states have interpreted it differently. The United States Supreme Court has ruled that an employer need not incur more than minimal costs in order to accommodate an employee’s religious practices. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
For example, an employer probably does not have to train a part-time employee at substantial cost in order to cover for another employee who is unable to work on Saturdays.
Also, if a collective bargaining agreement is in force which sets forth rules regarding seniority and assignments, it may be an undue hardship to ask the employer to violate that agreement.
An employer is also not required to pay premium or overtime costs in order to accommodate the religious needs of employees. Some employers do voluntarily pay these costs; however, this is up to the employer.
What are the employee’s responsibilities?
Employees seeking to observe their religious beliefs and practices have a responsibility to do their part to help resolve conflicts between job duties and religious needs. To this end, an employee should tell his or her employer about the religious commitment at the time the job is accepted or immediately upon becoming observant if he or she becomes more observant while employed. Some states have laws requiring the employee to notify his or her employer a certain number of days before each absence. Moreover, the employee should arrange to take religious holy days as vacation days or unpaid personal days.
Employees do not have to justify or prove anything about their religious belief to the employer (for example, the employee need not provide a note from clergy): an employer is required to accommodate — subject to the undue hardship rule — any of the employee’s religious beliefs.
If an accommodation issue arises and it is not easily resolved, the employee should discuss the matter with his or her union representative, contact an attorney or contact the Equal Employment Opportunity Commission (EEOC) or the state’s EEOC-equivalent.
What counts as a religious belief that needs to be accommodated?
Title VII protects all “sincerely held religious beliefs.” The law’s intention is to provide protection and accommodation for a broad spectrum of religious practices and belief — not merely those beliefs based upon organized or recognized teachings of a particular religion.
However, it is equally clear that Title VII was intended only to protect and accommodate individuals with sincere religious beliefs and not those with political or other beliefs unrelated to religion. Thus, the religious accommodation rules do not apply to requirements based on personal preferences rooted in non-theological bases such as culture, heritage or politics.
Employees must be clear when explaining why they need an accommodation. Vague objections such as saying that he or she cannot work on a particular day because of cultural tradition will not suffice; the employee must clearly state that he or she is required not to work because of religious beliefs.
May an employee wear religious garb or symbols to work?
Employers must attempt to accommodate employees who, for religious reasons, must maintain a particular physical appearance or manner of dress in keeping with the tenets of their religion. Again, accommodation is possible if it can be made without undue hardship to the employer. When it comes to religious apparel, typically only safety concerns constitute undue hardship.
Can an employer ask about religion on my job application?
No. Questions concerning an applicant’s religion or the religious holidays observed by an applicant are totally impermissible. For example, an employer may not ask an applicant: “Does your religion prevent you from working weekends or holidays?” or “What church do you attend?” However, during an interview an employer may describe the regular days, hours, or shifts of the job.
Again, it is the employee’s responsibility at the time he or she is hired to alert the employer of religious observances which will affect job responsibilities.
What is “religious harassment”?
Under Title VII, an employer has an affirmative obligation to maintain a work environment free of harassment, intimidation and repeated insult. It is noteworthy that proselytizing may rise to the level of harassment. The employer’s obligation extends to situations where he or she knows of the harassment or has reason to know of it and does nothing to clear up the situation. If fellow employees are creating a hostile work environment through religious harassment, the employee has an obligation to notify his or her supervisor of the harassment. If the harassment continues after the supervisor is notified, the employee may file a complaint of discrimination against the employer.
The Supreme Court held that harassment need not seriously affect employees’ psychological well-being in order to be problematic under Title VII so long as the environment would reasonably be perceived, and is perceived, as hostile or abusive. Harris v. Forklift Systems, Inc. 510 U.S. 17 (1993).
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