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Larry J. Rector
Steptoe & Johnson PLLC
Vol. 12, No. 10
April 2007
RELIGIOUS ACCOMMODATION
A new cross to bear: employees' religious rights
Most of you are familiar with the term "culture wars" — it's a loose description of the tension and conflicts between people who hold opposite views of what constitutes morality. One aspect of the culture wars you may be aware of is the
relationship between an employee's religious faith, beliefs, and practices and your duty to accommodate them in a multicultural workplace.
Some of the skirmishes in the religious accommodation battle have ranged from an employee's right to time off for religious services or holidays to the right to display religious symbols in the workplace to even more contentious issues like openly
objecting to company diversity policies or actively proselytizing coworkers. Those issues highlight the fact that religious accommodation is something you must seriously consider when managing your workforce.
Title VII prohibits religious discrimination
Title VII of the Civil Rights Act of 1964 protects employees from religious discrimination. It's an unlawful employment practice under Title VII "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because of [his] . . . religion" or "to limit, segregate, or classify . . . employees or applicants for employment in any way which would deprive or tend to
deprive [them] of employment opportunities or otherwise adversely affect [their] status as an employee, because of [their] . . . religion."
Title VII broadly defines religion to include all aspects of religious observance and practice as well as belief. An employer must accommodate an employee's or prospective employee's religious observance or practice unless doing so would cause undue
hardship on the conduct of its business.
The federal courts have concluded that to be protected, a belief must be a sincerely held belief and a bona fide religious belief. Determining what constitutes a religious belief or practice is a difficult and delicate process because "religious
beliefs need not be acceptable, logical, consistent, or comprehensible to others," according to a 1981 U.S. Supreme Court ruling. The Seventh U.S. Circuit Court of Appeals has said, however, that "an employee is not permitted to redefine a purely
personal preference or aversion as a religious belief."
But employee must suffer adverse action
Nothing in Title VII changes the basic statutory requirement that to make a religious discrimination claim, an employee must have suffered some adverse employment action. In addition, the three-part McDonnell Douglas burden-shifting framework
applies in religious discrimination cases. To establish a prima facie, or initial, case, the employee must establish that:
- he has a bona fide religious belief that conflicts with an employment requirement;
- he informed his employer of that belief; and
- he was disciplined for failing to comply with the conflicting employment requirement.
After the
employee makes his initial case, his employer must show it couldn't accommodate his religious needs without undue hardship. Although the burden is on the employer to offer a reasonable accommodation short of undue hardship, an employee isn't entitled
to the accommodation of his choice.
Bottom line
When it becomes apparent that an employee's religious beliefs may conflict with a company policy, you should immediately open a dialogue with her. Many accommodations may be fairly easy. For example, when an employee wants to express religious
beliefs, such as posting religious sayings in her cubicle, a simple solution may be moving employees around so that those who feel offended aren't exposed to the postings.
Likewise, a company should work with an employee who has religious objections to company policies in an effort to reach an accommodation acceptable to both parties. In the Buonanno v. AT&T Broadband LLC case, an employee claimed his religious
beliefs prevented him from signing a "Certificate of Understanding" in the company's code of conduct because it contained a "Diversity Policy" requiring each employee to "fully recognize, respect and value" coworker differences. He couldn't
conscientiously value any difference that he found "contrary to God's word." The court found the employee's firing violated Title VII because the employer had failed to communicate to him the company's interpretation of its diversity policy or make
minor changes to its wording that would assuage his objection to valuing behavior that Scripture abhorred.
Employers also may be forced to accept behavior they don't necessarily like. In the Banks v. Service America Corp. case, the court upheld the right of two employees who continually greeted customers with phrases such as "Praise the Lord" and "God
bless you." Even though the employer received roughly 25 complaints, the court determined that it wouldn't unduly burden the employer to let the employees use the religious greetings, basically because there was no showing that customer
dissatisfaction would significantly affect the employer's profits.
Of course, there are some types of religious activity you aren't required to tolerate. Persistent and blatant proselytizing at work can be prohibited. Employees aren't entitled to send companywide e-mails of religious literature, hold Christmas and
Easter parties — complete with songs and amplifiers — in conference rooms, and conduct weekly prayer meetings.
You should be aware of the right of religious accommodation and keep that in mind when adopting office or employment policies. As with much else, open communication and reasonable dialogue may help avoid unhappy workplaces or litigation. In short,
you should tread lightly lest you become collateral damage in the culture wars.
We hope this short overview raised your awareness of an increasingly important area of employment law. Religious accommodation issues will continue to proliferate. You must be cognizant of your employees' rights and be proactive in dealing with their
requests for accommodation.
Find out more about religious accommodations in the subscribers' area of www.HRhero.com, the website for West Virginia Employment Law Letter. You have access to an HR Executive Special Report on the
subject: "Ten Commandments for Avoiding Religious Harassment & Discrimination Claims." Just log in and scroll down to the link for all the Special Report titles. Need help? Call customer service at (800) 274-6774.
Copyright 2007 M. Lee Smith Publishers LLC
WEST VIRGINIA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should
consult an attorney. The State Bar of West Virginia does not certify specialists in the law, and we do not claim certification in any listed area. For further information about the content of any article in this newsletter, please contact any of the
editors.
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