’Tis the Season to Be Mindful of Religious Accommodation Obligations

So it begins—the annual holiday marathon. But which holidays come to mind? Thanksgiving, Christmas, Hanukkah, Kwanza, Festivus? The answer may differ depending on a host of factors, such as an individual’s family traditions, cultural upbringing, or religious beliefs. As we prepare holiday to-do and shopping lists, employers may want to keep in mind their legal obligations for recognizing, addressing, and accommodating employees’ religious needs. Below is a list of five considerations to keep top of mind this season and year-round to stay off the U.S. Equal Employment Opportunity Commission’s (EEOC) naughty list and limit your company’s exposure to unwanted gifts in the form of religious discrimination complaints.

Religions—Come One, Come All

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals based on certain protected characteristics, including religion. Courts interpret broadly the concept of religion under Title VII. Besides prohibiting discrimination based on traditional organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, Title VII also covers nontraditional religions and ethical or moral beliefs if such beliefs are sincerely held.

For example, in EEOC v. United Health Programs, No. 14-CV-3673 (September 30, 2016), the U.S. District Court for the Eastern District of New York recognized as a religion under Title VII an employer-initiated program known as “Onionhead.” In United Health, the EEOC sued on behalf of employees who alleged the company subjected former employees to religious discrimination because they refused to adopt employer-imposed religious practices and beliefs. The employer argued, in part, that Onionhead was not a religion, but rather a conflict resolution tool secular in nature. The court, however, held that Onionhead, which required activities such as prayer, burning candles, and saying “I love you” to coworkers, was “more than intellectual” and protected as a religion under Title VII.

An individual’s set of beliefs generally will meet Title VII’s definition of a religion if such beliefs involve matters of the afterlife, spirituality, or the soul, “among other possibilities.” Religion may also include sincerely held beliefs that occupy a place in the life of an individual similar to that filled by a supreme being in organized religions. The EEOC takes the position that Title VII protects both theistic beliefs and practices and nontheistic moral and ethical beliefs and practices. Courts have recognized atheism and conscientious religious objectors to military participation as religions subject to Title VII protections. Due to this expansive interpretation of “religion,” employers may want to take care not to make premature assumptions about the sincerity of an employee’s religious beliefs when approached with a request regarding a religious observance or practice. The law requires employers and employees to engage in an interactive process to determine whether accommodation is possible regardless of whether the religion or practice is considered “mainstream.”

Keep Holy the Sabbath—Schedule Limitations

Due to Title VII’s accommodation requirements, an employer may want to ensure its policies and practices do not limit the company’s ability to explore reasonable accommodation options. An employee may obtain an exception to certain rules or polices to engage in a practice consistent with his or her sincerely held religious beliefs. A failure to consider exceptions or accommodation options could result in costly litigation for employers. For example, the EEOC issued a cause determination against an employer and then sued in Colorado federal court on behalf of a group of Muslim meatpacking employees whose employer allegedly refused to allow prayer breaks.

During the holiday season, as employees flood employers with requests for time off to attend religious services or observe religious holidays, employers may want to carefully consider the options to accommodate employees. Examples of common religious accommodations include flexible scheduling, voluntary shift substitutions, job reassignments, and modifications to workplace policies or practices. Employers may consider providing employees some days to use throughout the year to observe their preferred holidays or allowing employees to swap with other employees the holidays they will work. A company may also consider approving an employee’s request to attend a religious service by allowing the employee to leave work early and then make up the time missed by working extra hours during the week. Remember, however, that some scheduling alternatives may implicate state wage and hour laws, so consider these issues when exploring accommodation options.

The World According to Garb—Exemptions to Grooming and Dress Policies

Regardless of the season, the law may require exceptions to grooming and dress codes as a religious accommodation if such exceptions will not impose an undue burden on the employer’s business operations. For example, an employer may have to allow certain hairstyles, such as Rastafarian dreadlocks or Sikh uncut hair and beards. Other examples may include accommodating employees whose religion prohibits the wearing of certain clothing, such as a Pentecostal woman whose religion prohibits wearing pants or short skirts. Employees whose religions require head coverings may also be entitled to dress policy exemptions, such as a Jewish man who wears a yarmulke or skullcap or a Muslin woman who wears a hijab or headscarf.

For example, in an 8–1 decision, the Supreme Court of the United States, in EEOC v. Abercrombie & Fitch Stores, No. 14-86 (June 1, 2015), held that the employer violated Title VII by refusing to hire a Muslim teenager because her hijab violated the company’s “look policy.” Abercrombie should serve as a cautionary tale to warn employers of the dangers associated with strict adherence to image-based policies, as such policies could invite discrimination claims for excluding individuals due to religious grooming and dress.

When an employee or applicant notifies an employer of the need for a religious accommodation related to dress or grooming, or if an employer has reason to suspect a need, the employer and the employee can engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant an accommodation.

“Immunize” Your Company From Discrimination—Vaccine Mandates

The holiday season is often synonymous with flu season. Due to the serious and sometimes fatal risks associated with contracting influenza, the Center for Disease Control and Prevention recommends all United States healthcare workers obtain annual flu vaccines. Many employers have taken action by implementing annual mandates for flu and other vaccines. Although employers often have compelling reasons for vaccination requirements—such as protecting patients and customers from serious or fatal illness—employers may face opposition from employees on religious grounds.

The EEOC has historically targeted employers with vaccine mandates by asserting discrimination and failure to accommodate claims under Title VII. For example, in April of 2016, the EEOC sued a hospital in North Carolina claiming that the company had violated Title VII by discharging three employees who refused to obtain flu vaccines. The company claimed the employees failed to follow procedures to obtain an exemption to the requirement because they submitted exemption requests after the company’s deadline. The court denied the employer’s motion for summary judgment, highlighting the employer’s lack of flexibility regarding the consequences for untimely exemption requests.

Similarly, in December 2016, a hospital in Pennsylvania resolved a religious discrimination lawsuit brought by the EEOC on behalf of six former employees. The employees claimed that after the company denied an exemption from the flu vaccine requirement, the employees refused the vaccine and were discharged from their employment. The EEOC has also targeted several other employers’ mandatory flu vaccine programs.

To remain clear of the EEOC’s line of sight and avoid costly litigation, employers may want to think carefully and critically regarding employee requests for exemptions from vaccine mandates. Employers can tackle this issue by being proactive and having a formal written policy regarding applicable vaccine programs that includes details instructing employees of the procedures to request exemptions. As demonstrated by the North Carolina case, when employees fail to follow procedures for requesting exemptions, employers can still engage in an individualized assessment and consider those requests on a case-by-case. If challenged, employers will likely be tasked with showing the danger or burden that would have resulted from granting an untimely request or other requests that did not strictly adhere to the employer’s exemption procedures.

Undo Any Undue Hardships

The undue hardship standard under Title VII is a lower standard than the undue hardship standard applicable to the Americans with Disabilities Act, which requires employers to show significant difficulty or expense. Rather, Title VII provides that if an employer denies a religious accommodation request, the employer must prove the accommodation would require more than de minimis cost or burden on operations—a much lower threshold. Note, however, that employers should not become overconfident in the ability to meet the burden of proving Title VII undue hardship. Numerous cases addressing the undue hardship defense demonstrate that a failure to thoughtfully consider accommodation options could be fatal to an employer’s defense. What is more, the compliant employer may also need to keep abreast of state and local religion discrimination laws that impose stricter employer obligations or more generous employee protections.

As we head into the holiday season and reflect on this past year, employers may want to revisit their policies and procedures related to religious accommodations. To start the new year on the right track, consider conducting a review to ensure your company is prepared to address upcoming religious accommodation requests to give your company the gift of a litigation-free year for the next holiday season.

A version of this article first appeared on Law360.