In June, a federal jury awarded $287,640 to a Muslim employee. The basis for the award? Religious discrimination after the employee was fired for refusing to remove her head scarf during Ramadan.
Increasingly, employees are bringing religious discrimination claims under Title VII of the Civil Rights Act of 1964 (and analogous state and local laws), including claims for failure to accommodate. The EEOC, in fact, processed 2,541 religious discrimination charges in FY2006, up from 1,564 in FY1996. Although lagging far behind race and sex discrimination charges filed with the EEOC (in FY 2006, 27,238 and 23,247, respectfully), employers must be mindful of their religious accommodation obligations or risk significant liability.1
Meeting this obligation, maintaining efficient operations and respecting the rights of other employees can be a delicate balance. The place to start? Your company's non-discrimination and non-harassment policies, both of which must specifically encompass religion.
Equally important, however, is to provide a centralized mechanism for employees to make requests for religious accommodations. Employers that are silent on this point increase the chances that employees will make requests to managers who not only will be unprepared to respond but who may approve or deny accommodations in a manner inconsistent with company practice.
Religion Means Different Things To Different People
When an employer is not familiar with an employee's religion, it is not surprising that an employer may initially question whether the employee has a sincerely held religious belief or practice for which a reasonable accommodation must be provided.
Employers, however, should be careful not to immediately dismiss an employee's accommodation request simply because the manager does not understand the religion. Under Title VII, the term "religion" includes all aspects of religious observance and practice as well as certain moral and ethical beliefs that fill the role of religion. Adherence to a traditional religion is not required in order to be afforded the protections of the law, as suggested by the decision in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), where the United States Court of Appeals for the First Circuit analyzed a religious accommodation claim by an employee who was a member of the Church of Body Modification, without questioning whether the church was in fact a religion.
Reasonably Scheduling Religious Practices
Standard employer-provided paid holidays do not encompass the myriad days or portions of days off that an employee may need for religious expression and observations. As a result, it is not unusual for employees to request additional time off or flexibility to practice their religion.
Whether an employer must accommodate an employee's particular accommodation request (such as short prayer breaks or swapping shifts with other employees) must be based upon the employer's unique business operations. While short breaks or minor shift swapping may be easily accommodated in some work environments, the same accommodations may not be realistic or possible in others, where they may constitute an undue burden for the employer.
This undue burden, which provides a defense for an employer that denies a requested accommodation, may be shown where, for instance, providing the accommodation requires more than ordinary administrative costs, diminishes the efficiency of other positions, overburdens co-workers, impairs workplace safety or conflicts with other laws or company policies, including an employer's collective bargaining agreement.
Determining where a particular employee's request falls on this accommodation/undue burden continuum requires the employer to engage in an interactive process with the employee. An employer takes great risk in simply rejecting an employee's request without exploring other possible accommodations.
An employer must also consider the ramifications of other laws and policies on the provision of religious accommodations. For instance, short prayer breaks must be paid in order to comply with the Fair Labor Standards Act and analogous state law. If an employer permits flex time for non-religious purposes (such as for child care or other family situations), it will be more difficult to argue that flexible scheduling for religious reasons is an undue burden. If an employee is being provided a day off from work for religious observances, an employer should evaluate the extent to which such days are counted against an employee's paid time-off benefits such as vacation days.
Dressing The Part May Not Take Religion Into Account
Employers that implement dress codes may face claims from employees that they infringe on employee rights to individual religious observance through dress. Unfortunately, there is no clear trend in the case law in this area.
On the one hand, in an oft-cited case referenced above, Cloutier v. Costco Wholesale Corp., an employee sought to wear a facial piercing (eyebrow ring) required by her religion, which subscribed to a belief in body modification and facial piercing. Her employer's dress code prohibited facial piercings. The employer, however, offered to allow the employee to cover up her piercing while at work or to wear a clear, non-metal ring instead, both suggestions that were rejected by the employee. In ruling for the employer, the court noted that accommodating the facial piercings would be an undue burden as the company had a legitimate interest in controlling how it projects itself to the public and in controlling its image.
Conversely, in a more recent case, EEOC v. Alamo Rent-A-Car LLC, 432 F. Supp. 2d 1006 (D. Ariz. 2006), the court granted summary judgment on the issue of liability in favor of the EEOC on behalf of a Muslim employee who was fired after she refused to take off her head scarf during Ramadan. The company's dress code did not specifically prohibit scarves but barred the wearing of any garments "not specifically mentioned in the policy." The employer's offered compromise to allow the employee to wear the head scarf in the back office but not at the front counter when she was helping customers was rejected by the court as an unacceptable accommodation. A year later, in June 2007, the jury awarded the employee $287,640.
While employers may seek to establish their corporate image through a dress code, appearance preferences alone may not be sufficient to legally reject an employee's religious accommodation request. Of course, where safety concerns are present (such as dress codes for uniformed officers or protective equipment for factory workers), establishing that modification of the dress code is an undue burden is far more likely.
Managers' Religious Beliefs And Conduct May Lead To Claims
A very different type of claim may also be brought by an employee who claims that a failure to adhere to his or her manager's religious beliefs had adverse consequences at work.
While it is human nature to have affinity toward individuals of similar religious background, managers must be careful not to let personal religious beliefs interfere (or appear to interfere) with promotion or discipline decisions. Such a claim was recently found viable in Noyes v. Kelly Servs., No. 04-17050, 2007 U.S. App. LEXIS 12356 (May 29, 2007 9th Cir.), where the United States Court of Appeals for the Ninth Circuit found that there was sufficient evidence to go to trial on an employee's claim that she was not promoted because her manager favored employees who were members of the manager's religious group. The evidence cited by the court: arguably less qualified employees who were members of the manager's religious group were promoted and were paid more than the plaintiff, a non-member.
Managers must also be mindful that their own religious expressions may constitute religious harassment where it borders on proselytizing. In a lawsuit filed in June in the U.S. District Court for the Western District of Washington at Tacoma, Foster et al v. Woodcreek Pediatrics, P.L.L.C. et al, 3:07-cv-05318, June 27, 2007 (W.D. Wash.), several employees allege that managers crossed that line and subjected them to a religiously discriminatory hostile work environment when they were forced to participate in group prayer at work run by managers and were chastised for failing to attend church and for engaging in other behavior that did not meet their managers' religious standards. While an employee may have the right to express his or her personal religious beliefs through, for example, prayer breaks at work, when other employees are solicited to participate and are then degraded or reprimanded for their unwillingness to participate, complaints of religious harassment may result.
Enforcing Your EEO Policy May Result In Discrimination Claims
Ironically, the actual enforcement of non-discrimination and non-harassment policies creates the potential for religious discrimination claims by employees whose personal beliefs conflict with these policies. This is yet another example of the delicate balance between protecting individuals from unlawful harassment while at the same time respecting other employees' religious beliefs.
In Peterson v. Hewlett Packard, 358 F. 3d 599 (9th Cir. 2004), an employer's decision to terminate an employee who refused to remove personal posters from his work area containing Biblical passages condemning homosexuality was upheld. The employee argued that his religious belief against homosexuality must be accommodated by allowing him to post these passages in response to the company's diversity campaign, which was inclusive of gay employees. Instead, the court found that it was an undue hardship on the company to require it to permit the employee to post his Biblical passages because the employee's actions infringed on the employer's right to promote diversity and encourage goodwill.
Conversely, one court recently found that an employee's refusal to execute an employer's standardized diversity policy may not be grounds for immediate dismissal. In Buoanno v. AT&T Broadband, LLC., 313 F.Supp. 2d 1069 (D. Co. 2004), an employee who claimed that his religion required him to believe that certain behavior is sinful was fired after he refused to sign a certificate attached to his employer's diversity policy that provided that each employee was charged with the responsibility to "fully recognize, respect and value the differences among all [employees]." In upholding the employee's claim for failure to accommodate, the court faulted the company for failing to investigate in any way the employee's beliefs and for failing to consider making minor clarifications to the word "value" in the policy in order to make it more amenable to the employee.
The takeaway from these cases? While an employer may in many instances legitimately prevent an employee from espousing beliefs that are inconsistent with an employer's non-discrimination principles, an employer may not necessarily be able to force an employee to sign a statement professing values inconsistent with his or her religious beliefs.
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In all of these cases, one lesson may be learned: being caught off guard by an employee's request for religious accommodation often leads to litigation. A sounder approach to lessen potential claims is to ensure that your company has properly drafted policies, is prepared to demonstrate its ability (or limits) to be flexible and has trained its managers to appropriately and consistently respond to religious accommodation requests.
1 U.S. Equal Employment Opportunity, Charge Statistics, FY 1992-FY 1996 and FY 1997-FY2006.
Linda B. Hollinshead is a Partner in WolfBlock's Employment Services Practice Group, where she focuses her practice on training and providing counseling to clients on medical and religious accommodations, leaves of absence, harassment and discrimination prevention and responding to harassment and discrimination claims. Marc J. Scheiner is an Associate in WolfBlock's Employment Services Practice Group, where he provides counseling on a variety of employment issues and represents clients in employment litigation matters.