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Unintended consequences of religion at work September 21 , 2007 Excerpted from New York Employment Law Letter and written by an attorney at the law firm of Epstein Becker & Green, P.C. by Lisa J. Teich Imagine that you are the head of HR at a large financial institution. You recently learned that the front desk receptionist reported to work with a tattoo of a burning cross prominently placed on her chest. When questioned about her tattoo, which is in violation of the company's dress code, she claims it is a religious statement and refuses to conceal it while at work. Although you strive to accommodate all your employees' religious practices, observances, and expressions, if you accommodate the receptionist's claimed religious statement by allowing her to prominently display her tattoo, you risk both offending employees and clients and exposing the company to a potential hostile work environment lawsuit. Unfortunately, this hypothetical scenario isn't that far-fetched. Congress currently is contemplating passing bipartisan legislation, which if enacted, could create a conflict between an employer's obligation to accommodate employees' religious interests and its obligation to guard against the abuse of religion in the workplace. Religious diversity in the American workforce Globalization, immigration patterns, a focus on workplace diversity, and a renewed spiritual awakening prompted by the September 11, 2001, terrorist attacks have combined to create a more religiously diverse and devout workforce. As a result, the proverbial wall separating religion from work is crumbling now, and more and more workers are bringing their religion into the workplace. Indeed, employees' religious beliefs not only play a role in their on-the-job decisionmaking but also influence their day-to-day interactions with coworkers. This proliferation of religion in the workplace is creating new challenges for employers. They increasingly are being inundated with requests for religious accommodations and progressively confronted with unexpected and awkward faith-related situations (i.e., proposals to form affinity groups and prayer breakfasts, employee e-mail sign-offs that quote Scripture, and proselytizing). The number of religious accommodation requests and religious discrimination charges filed with the Equal Employment Opportunity Commission have risen sharply during the last decade, underscoring the growing pressure companies face to accommodate their employees' diverse religious views, practices, and expressions. In fact, religious discrimination claims currently are the third-fastest growing discrimination claims behind disability-based claims and sexual harassment claims. Workplace Religious Freedom Act of 2007 The increasing number of religion-based discrimination charges hasn't gone unnoticed by the legislative branch of the federal government. Congress currently is contemplating the Workplace Religious Freedom Act (WRFA), a bipartisan bill first introduced in the U.S. Senate on March 17, 2005, by former Senator Rick Santorum (R-Pennsylvania) and Senator John Kerry (D-Massachusetts). It was introduced in the House of Representatives by Representatives Mark Souder (R-Indiana), Carolyn McCarthy (D-New York), Bobby Jindal (R-Louisiana) and Anthony Weiner (D- New York). The bill seeks to enhance the legal protection available to people of faith in the workplace. To do that, the WRFA seeks to overrule the U.S. Supreme Court's interpretations of both an employer's duty to reasonably accommodate an employee's religious practices and observances and what constitutes an undue hardship, which would excuse an employer from providing such as an accommodation. Specifically, the WRFA seeks to supersede the Supreme Court's interpretation of "reasonable accommodation," which the Court defined as being any reasonable accommodation an employer offered, regardless of whether it was the specific accommodation the employee sought. The WRFA would redefine "reasonable accommodation" as an accommodation that eliminates the conflict between the employment requirement and the employee's religious practice and/or observance, regardless of the effort it would impose on an employer to fashion such an accommodation. In addition, the Act seeks to annul the Supreme Court's interpretation of the term "undue hardship" -- which it defined as a situation that imposes more than a de minimis (minimally sufficient) cost on the employer -- and redefine it as a situation that imposes significant difficulty or expense on the employer. If passed, the WRFA, which is heavily weighted in favor of employees, will require employers to make more drastic accommodations to resolve conflicts with employees' religious practices and expressions. Nonetheless, the Act could have a broader impact than many of its supporters intended. Indeed, opponents contend that it will foster religious harassment, create hostile work environments, and threaten the critical personal and civil rights of religious minorities, racial minorities, women, and homosexuals. For example, if the WRFA is enacted, employers may be required to accommodate the following forms of religious expression:
As those examples illustrate, an employer might deny a requested religious accommodation or adopt a religiously neutral employment policy to avert a workplace rife with intimidation and harassment. The WRFA could create conflicts between an employer's obligation to accommodate its employees' religious interests and its obligation to guard against the abuse of religion in the workplace. Bottom line If history is an indicator of future events, the WRFA's past record suggests it's unlikely to pass into law anytime in the near future. Regardless of whether the bill is ultimately enacted, however, be prepared to deal with workplace conflicts stemming from employees' diverse faiths by:
Copyright 2007 M. Lee Smith Publishers LLC. This article is an excerpt from ARIZONA EMPLOYMENT LAW LETTER. NEW YORK EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in New York employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. ___________________________________________________________________ Additional resources on HRhero.com Subscribers Area Resources
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