Religion in the Workplace

Religious diversity has been increasing in the U.S. population and its workforce. At the same time, there has been a rise in the incidence of workplace harassment and employment discrimination. According to the U.S. Equal Employment Opportunity Commission (EEOC), the period from 1997 to 2015 saw a two-fold increase in workplace complaints involving religion.

In one high-profile case from 2015, for example, Abercrombie & Fitch refused to hire a Muslim job applicant because it claimed the headscarf that she wore for religious reasons conflicted with company policy on dress code. Filed on behalf of the applicant by the EEOC, the suit alleged discrimination, although the applicant had not requested an accommodation for her religious dress code.

On June 1, 2015, the U.S. Supreme Court held that Abercrombie violated anti-discrimination laws because the company should have provided an accommodation and that the absence of a request for one was not sufficient to relieve the clothing retailer of liability for violating these laws.

Given the broadening scope of employer liability in religious discrimination cases, it's important to understand an employer's obligations under the law.

What Is Religious Discrimination?

Most religious discrimination cases against businesses arise under federal or state statutes because the First Amendment only protects against discrimination by the government. Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the following grounds: race, color, religion, sex, and national origin. Under the Act, private businesses with at least 15 employees are prohibited from:

• Discrimination based on religious beliefs or practices in any aspect of employment
• Harassment based on religious beliefs or practices
• Denying reasonable religious accommodations unless it would cause an undue burden
• Retaliating against individuals engaging in protected activities (such as filing complaints)

Federal laws against religious discrimination also protect individuals with non-traditional beliefs or practices and those with atheistic views as long as their views are sincerely held. Unless it's an unusual situation, it's probably good practice to take an employee's word when it comes to their belief system.

What Is a Religious Accommodation?

Put simply, under Title VII, religious accommodation is any adjustment to the workplace that allows an employee to practice their religion.

An accommodation becomes necessary when an employee's religious beliefs, religious observances, or religious practices interfere with aspects of their employment. It may also arise prior to employment as an applicant pursues a position.

Unless an employer can prove that they would sustain undue hardship in granting an accommodation for religious reasons, an employer cannot interfere with an employee's religious practices as a condition of employment.

Accommodations can pertain to an employee's religious expression, while they can also be related to an employee's schedule, observance of religious holidays, appearance, and religious garb.

When Are Employers Liable for Religious Discrimination?

Employers are always liable when employees suffer from religious discrimination resulting in a tangible employment action. However, in other cases, employers are liable for religious discrimination when it creates a hostile work environment where they knew or should have known of the discrimination and failed to take prompt and appropriate action. In these cases, businesses can limit or avoid liability if:

• They exercise reasonable care to promptly prevent or correct harassing behavior
• The claimant unreasonably failed to take advantage of preventive or corrective opportunities

It's a good practice for your clients to intervene quickly to address religious discrimination or harassment in the workplace. Sometimes, waiting for a complaint to take action may be too late, especially if the conduct has already created a hostile work environment that may also be impacting other employees.

Reasonable Accommodations and Undue Hardship

Under federal law, employers must provide reasonable accommodations for sincerely held religious beliefs or non-beliefs. Common types of accommodations include:

• Revising schedules or using voluntary substitutes with other employees
• Revising an employee's tasks
• Lateral transfers
• Exceptions to dress and grooming rules
• Allowing work facilities to be used for religious observances

Note that where multiple reasonable accommodations are available, your clients aren't required to provide the one preferred by the employee. Your clients also don't need to provide reasonable accommodations if it would cause undue hardship. Undue hardship occurs when the accommodation would impose more than a de minimis cost. This is a fact-specific determination that's made on a case-by-case basis. However, it can be based on the direct monetary costs of an accommodation as well as its burden on a business. Courts will typically find undue hardship where religious accommodations:

• Diminish the efficiency of other employees
• Create an imbalance of hazardous or burdensome work in the workplace
• Infringe on other employees' job rights or benefits
• Impair workplace safety

When it comes to religious accommodations, employers and employees should explore mutually convenient alternatives, but also document the costs and impact of such accommodations on other employees and the business itself.

Religious Liberty Rights for Closely Held Corporations

In addition to protecting religious freedoms of employees, federal law also protects the religious rights of certain corporations. With its Hobby Lobby decision in 2014, the Supreme Court ruled that closely held corporations can be exempt from laws on religious grounds if a less restrictive means is available.

Learn More about Religion in the Workplace

For more information and resources on religion in the workplace and religious discrimination, consider working with an employment law attorney in your area.