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Religious accommodation in the workplace tricky and uncertain

May 22, 2014

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

The majority of Americans have a non-dogmatic approach to faith.  A strong majority of those who are affiliated with a religion do not believe their religion is the only way to salvation. They also believe that there is more than one true way to interpret the teachings of their religion. The comprehensive U.S. Religious Landscape Survey, conducted by the Pew Forum on Religion & Public Life, also found that more than half of Americans rank the importance of religion very high in their lives, attend religious services regularly and pray daily. The survey drew feedback from 35,000 Americans.

Religion is generally a personal choice and action.  But what happens when a person’s religious choice affects the workplace?  Since 2008, the EEOC has averaged 3,772 charges of religious discrimination a year, with 3,721 charges in 2013. From 2001 to 2007, the number of charges averaged about 2,100 per year.  Therefore, we have seen an 80 percent increase in these charges from the six-year period ending 2007 to the one ending 2013.  What follows is a sampling of cases involving religion in the workplace:

In 2012 a former Walt Disney employee filed suit against the company. She charged it with religious discrimination and harassment in a dispute that centered on her hijab, the headscarf worn by Muslim women. When the employee wanted to wear her hijab permanently, she asked her supervisor’s permission to wear it at work.  She was told it violated Disney’s “look” policy and would “negatively affect patron’s experiences at the café.”

Sikhs wear a miniature sword with a dull edge called a “kirpan,” sheathed, as a symbol of their commitment to defend truth and moral values.  In a 2008 EEOC lawsuit, a Sikh employee sued ManorCare’s Citrus Heights, California facility, because it instructed him not to wear the kirpan at work because it violated the company policy against weapons in the workplace.

Many faiths believe in a Sabbath.  Magnetics International, Inc. was sued in 2011 by a laborer at its  Burns Harbor, Ind., facility who was told at hire that he would not be required to work consecutive Sundays. When Magnetics scheduled him to work a second consecutive Sunday, the employee reminded Magnetics of its commitment and informed Magnetics that he could not work because of his obligations to his church. Magnetics forced the employee to choose between working the scheduled Sunday shift or losing his job, and ultimately terminated his employment.

In some cases a tenet of a religion can be stretched.  A federal district court in Ohio in 2013 refused to dismiss a complaint for religious discrimination made by a hospital employee after the employee was fired for refusing to be vaccinated for the flu. The basis of the refusal was the employee’s veganism, which the employee raised to the level of religious belief.

Proselytizing is a difficult issue. An employer successfully defended itself against a claim that it failed to reasonably accommodate the plaintiff’s religious practices when it prevented her from distributing religious pamphlets to other employees. The employer, the court observed, “was not required to accommodate [the plaintiff’s] religion by permitting her to distribute pamphlets offensive to other employees.” But in another case, an employer disciplining an employee who greets people with “God bless you” lost.

So what should the employer do when an employee requests a religious accommodation?  EEOC guidances generally expect an employer to try to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would be a hardship on the employer.  Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.

These guidances do not mean that the employer needs to accommodate all religious requests. But they do mean the employer should enter into a reasonable discussion as to an appropriate accommodation, unless the employer can show that hardship that any accommodation would cause.  Hardship needs to be documented.  When in doubt, contact your legal counsel.

Source: EEOC, Paul Hastings March 2014, EmploymentLaw360, Employment Law Matters 1/7/13

ASE will be hosting a Selected Insight on June 13th on Religion in Workplace at ASE.  For more information, click here.

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