The basics of workplace religious accommodations |
On Board Online • Legal Agenda • February 2, 2009
By Aileen Abrams
Assistant Counsel
Editor’s note: This is the fourth and final article in a series addressing religion in the workplace. The series is focused solely on religious discrimination under Title VII, and does not address any constitutional or state or federal law questions that might also come into play with respect to religion in the workplace.
Pursuant to Title VII of the Civil Rights Act of 1964, employers, including school districts, must provide reasonable work accommodations that permit their employees to practice their religious beliefs, as long as the accommodation does not constitute an undue hardship.
According to recently issued guidance from the Equal Employment Opportunity Commission (EEOC), a reasonable religious accommodation consists of adjustments to the workplace that permit employees to comply with their sincerely held religious beliefs. An undue hardship exists when such an accommodation imposes more than a “de minimis” (minimal) cost or interference with the operation of the employer’s business.
Generally, religious accommodations in the workplace involve adjustments to work schedules and dress and grooming rules, as well as opportunities for religious observance and expression. Typically, they take the form of modifications to employee dress requirements, schedule changes, voluntary shift or assignment swaps, lateral transfers, use of work facilities for prayer and permitting the display of religious icons and messages by the employee.
The “reasonableness” of a religious accommodation depends on the facts of each request and is decided on a case-by-case basis. Notably, if more than one accommodation is available, employers do not have to provide the employee’s preferred accommodation. Instead, employees must try to meet their religious needs through a reasonable alternative offered by the employer.
A religious accommodation will not be deemed reasonable unless it eliminates the conflict between work and the employee’s religion unless alternative accommodations would impose an undue hardship. Merely lessening the conflict is not enough. In addition, the accommodation may not place at a disadvantage the terms, conditions or privileges of the employee’s own employment or that of others.
Various factors can affect whether a religious accommodation imposes more than a “de minimis” cost that creates an undue hardship and exempts an employer from having to grant the accommodation. According to the EEOC, relevant factors include the type of workplace and the nature of the employee’s duties, the cost of the accommodation and the extent of the cost’s impact on the employer’s operations, and the number of employees that actually need the accommodation. An undue hardship might exist, as well, if the accommodation has a negative effect on the workplace rights of co-workers either because it diminishes the efficiency of others, impairs workplace safety, constitutes or threatens to constitute unlawful harassment, or infringes on the employment benefits of others under a bona fide seniority system or collective bargaining agreement. However, the latter does not excuse the obligation to attempt to provide a reasonable accommodation.
In claiming more than a “de minimis” cost, employers must be able to show the actual cost or disruption involved. Administrative costs, including infrequent or temporary payment of overtime for a substitute while a permanent accommodation is being sought, will not suffice. The mere potential for hardship is not enough.
When presented with a request for a religious accommodation, employers must avoid denying the request merely because:
- The employee did not use the words “reasonable accommodation” when submitting the request.
- The request involves a religious belief or practice that the employer is unfamiliar with or does not understand.
Instead, while not required by law, employers should engage in discussions with the employee to understand the religious nature of a belief or practice, and how work interferes with it.
Employers may and should ask for whatever information they might need to determine whether to grant or deny a religious accommodation request. Sometimes an employee’s own first-hand explanation will be sufficient and third-party verification unnecessary. When an accommodation solution is not immediately apparent, employers should also ask the employee for examples of effective accommodations. Employees who refuse to cooperate risk losing a subsequent claim that they were illegally denied their accommodation request.
Following are some EEOC examples illustrating possible accommodation requests.
Change of schedule to accommodate prayer
An employer’s policy provides two 15-minute breaks during the workday. One employee requests a change in the break schedule so that he can pray throughout the workday at the various times prescribed by his religion. His request will not exceed the total maximum break time allotted by the employer, or his ability to perform his duties. The request does not impose an undue hardship, either. Therefore, the employee is entitled to the accommodation.
Use of employer room for prayer
An employee asks to use a particular room to pray during a scheduled break time. However, there is a scheduled meeting in that room at that time. Although the employer does not have to make the requested room available, it still has an obligation to try and accommodate the request, perhaps by offering another appropriate unoccupied location.
Display of religious objects
An employee displays a poster that says “Jesus Saves” on a wall by his work station at the main entrance to the employer’s facilities, because he felt a religious obligation to do so. The poster is seen by everyone coming into the facility. Notwithstanding the absence of complaints or other disruption to the workplace, the employer orders him to remove the poster. Under the circumstances, the employer is likely to establish an undue hardship existed because the employee’s message could be mistaken as its own.