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Workplace collisions between religion and other protected interests

December 27th, 2012  |  Lorene Park

Recent news reports have proclaimed that a White House petition to recognize the Westboro Baptist Church as a hate group had become the most popular petition ever. The church had announced plans to picket the funeral of victims of the Sandy Hook Elementary School shooting in Connecticut (which the church claims was God’s wrath over gay marriage). Meanwhile, individuals referred to as good Samaritans by newspapers lined up to thwart a potential protest at the funeral of Principal Dawn Hochsprung. This collision between freedom of religion and freedom from the religious practices of others has also become a theme in the workplace, though on a smaller scale.

Overview of federal law. Title VII prohibits employment discrimination and harassment based on religion. The Act exempts religious corporations, associations, or institutions. The EEOC broadly defines “religion” to include “moral or ethical beliefs as to right and wrong that are sincerely held with the strength of traditional religious views.” Unless it would be an undue hardship, an employer must reasonably accommodate an employee’s religious beliefs or practices. As outlined below, the duty to accommodate applies in several contexts. As for undue hardship, according to the EEOC, this can be shown if an accommodation conflicts with another law or violates the terms of a CBA, or if it “requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work.”

Scheduling issues. In practice, many religious discrimination claims involve the failure to grant requests by employees to not work on holy days. Sometimes the case turns on whether a court considers it to be an undue burden for coworkers to either pick up the slack of or to swap shifts with the absent employee. For example, the Fourth Circuit recently affirmed summary judgment for an employer that would have had to incur more than a de minimus cost to accommodate a dump truck driver’s absences for his Saturday Sabbath observance (EEOC v Thompson Contracting, Grading, Paving, and Utilities, Inc, 4th Cir 2012). On the day of the absence at issue, the employer used all of its drivers and also hired thirteen outside contractors. According to the court, in this circumstance, having other drivers pick up the slack caused by the employee’s absence was “an unacceptable alternative.” On the other hand, a court in a different case denied summary judgment to an employer that failed to show it reasonably accommodated a Seventh-day Adventist employee’s request not to work the Sabbath (Kilpatrick v Hyundai Motor Manufacturing Alabama, LLC, MDAla 2012). The employer refused to grant exceptions to its attendance rules and there was no evidence that it would have been an undue hardship to allow the employee and coworkers to voluntarily swap shifts.

Dueling religions. Employers have also faced conflicts between employees of different religions. In a recent case, a Christian employee responsible for organizing office functions complained that his employer violated Title VII when it changed the date of a staff luncheon so that other employees fasting for Ramadan could attend and when it advertised the times that Muslim staff brought bagels to share (Ross v Colorado Department of Transportation, DColo 2012). His hostile work environment claim failed because, though he was subjectively offended, there was no evidence the events were objectively severe or pervasive enough to create a religiously hostile environment. Further, by relieving the employee of his duties to organize and advertise the lunch, the employer reasonably accommodated him. In addition, the court found that the employee’s preferred accommodation (not changing the date) would have created an undue hardship by forcing the employer to tread on the religious beliefs of other employees.

LGBT rights. In some cases, gay and lesbian employees have alleged religious discrimination based on the fact that they do not share coworkers’ views that homosexuality is a sin. Courts have rejected such claims, ruling that the alleged bias was based on sexual orientation, not religion (e.g., Pedreira v Kentucky Baptist Homes, 6th Cir. 2009). On the other hand, one federal district court recently upheld a professor’s religious bias claim where her religion required rejecting homosexuality and she was denied a position in a department staffed by faculty who support the LGBT community (Gadling-Cole v West Chester University, EDPa 2012). The court rejected the university’s position that her claim was actually based on her (heterosexual) sexual orientation and not her religion.

Dress code. An employer’s duty to reasonably accommodate an employee’s religious beliefs or practices also applies to dress or grooming practices that an employee has for religious reasons. According to the EEOC, these might include wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts). Some states are also incorporating this issue into their antidiscrimination laws. For example, in September 2012, California Governor Jerry Brown signed into law a bill barring employers from taking adverse employment actions based on an employee’s religious dress or grooming practice (AB 1964). The law clarifies, however, that employers are not required to make an accommodation that is demonstrated to produce an undue hardship.

Captive audience. Another issue that is cropping up involves religious discussions taking place in mandatory workplace meetings. Several courts have held that employers violated Title VII by requiring all employees, while at work, to attend religious services or meetings where the employer’s religion was promoted. Some courts have pointed out that allowing employees to opt out of such meetings may avoid the Title VII violation. A few states are also beginning to take action on this issue. For example, Oregon, New Jersey, and Wisconsin have enacted laws that generally prohibit employers from taking adverse employment actions against employees who choose not to attend meetings where religious or political matters are discussed.

Employer response and resources. In light of the foregoing, it should go without saying that employers should tailor workplace policies to allow for religious and other accommodations required by law. For example, any dress code policy should include a procedure for requesting exceptions based on religion and a grievance procedure. If an employee raises the issue of accommodating his or her religious practices or beliefs, the employer should work with the employee to come up with a solution. Approaches may include flexible scheduling, using floating holidays, relaxing dress or grooming standards, and job reassignment. Employers should also determine whether accommodations would impose an undue hardship, keeping in mind how the EEOC and courts construe that concept. For example, employers need not take an action that disproportionately increases other employees’ workloads or deprives them of rights under a CBA or seniority system. Employers should also document efforts to accommodate employees. The EEOC website provides additional information and resources for employers, including guidance and fact sheets, at http://www.eeoc.gov/laws/types/religion.cfm.