December 2012

By: Nancy E. Joerg, Esq.

Do employers really have to take affirmative steps to reasonably accommodate an employee’s religious practices (unless such an accommodation will cause the employer “undue hardship”)? Does the law actually require this from employers? The answer is: YES.

Most employee requests to employers for accommodation involve employees’ requests for days off to observe their Sabbath or religious holidays. However, somewhat muddying the waters, the responsibility of the employer to accommodate covers all conduct related to religion, such as prayer breaks or other religious practices.

While the employer may set minimal standards of dress and grooming, unnecessarily strict workplace standards may offend an employee’s religious requirements.

Discrimination or harassment by employers against employees because of their religious beliefs is against the law. This legal protection includes, but is not limited to, all aspects of religious observance and practice. Protected religious beliefs are not limited to organized or traditional religions, but also (somewhat surprisingly) include individual religious beliefs and atheism.

Harassment on the basis of religion may take the form of a supervisor requiring that an employee engage in a religious activity. For example, a supervisor cannot require attendance at workplace prayer meetings as a condition of employment. Another form of harassment involves conduct that creates a hostile work environment – for example, when a co-worker makes disparaging remarks or offensive jokes concerning an employee’s religious beliefs or practices.

To reasonably accommodate an employee’s religious practices, an employer must first review what realistic actions can be taken in the workplace to alleviate any conflict that exists between an employee’s religious practices and their work-related activities. If a solution can be found (that will not cause the employer undue hardship), the employer must offer this solution to the employee. The general standard for determining undue hardship is whether accommodation of the employee’s religious practices causes the employer to incur greater than minimal cost-which has been defined by the EEOC as “more than ordinary administrative costs.”

Certain typical workplace accommodations have been found by the courts to be “reasonable.” These accommodations include, but are not limited to, the following:

• Substitution by replacement personnel when such personnel are readily available (and when such substitution does not cause more than a minimal increase in costs or minimal reduction in efficiency). Some courts have held that an employer may not require an employee to arrange for their own shift swaps when doing so would conflict with their religious beliefs; an employer generally need not, however, force other employees to swap shifts.
• Offer of a lateral transfer to another position in the company to avoid scheduling conflicts.
• Permission to allow the employee to take unpaid leave, when the taking of such leave will not injure overall operating efficiency.
• Flexible scheduling (when it does not interfere with a company’s operation or cause a breach of a valid collective bargaining agreement). Flexible scheduling might mean:
• Modification of arrival and departure times.
• Use of floating or optional holidays.
• Changed work breaks.
• Use of lunchtime in exchange for early departure when not in conflict with state law requiring meal periods.
• Staggered work hours.
• Permitting an employee to make up time lost due to the observance of religious practices.

Unlike national origin or race, a person’s religious affiliation often is not obvious. Employers are not required to accommodate religious beliefs until the employee actually tells the employer that the employee requires accommodation for their religion.

An employer need not choose the actual accommodation suggested by the employee but may offer any reasonable plan for accommodation.

Employers cannot schedule examinations or other selection activities that conflict with a current or prospective employee’s religious needs, inquire about an applicant’s future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can clearly prove that these practices would cause an undue hardship.

Because of liability dangers, employers should take any and all employee requests for “special treatment” very seriously. This area is clearly a “trap for the unwary” employer. Therefore, train all supervisors to be aware of this danger zone. Ignoring an employee request for religious accommodation is always a BAD IDEA (always review such an employee request carefully with legal counsel).