Avoiding Mistletoe Mishaps, Part VI: When Religion And Work Collide—Responding To Requests For Accommodations At Work

As 2013 comes to an end, we have been considering a number of workplace issues that employers might face at the end of the year and the beginning of the holiday season. In parts one, two, three, four, and five of this blog series, we covered

1. employers’ chief concerns when hiring a seasonal workforce;
2. employers’ health care obligations toward seasonal workers;
3. OSHA’s fact sheet on how retailers can manage holiday shopping crowds;
4. tips for throwing a litigation-free holiday party; and
5. the employment tax implications of employers’ holiday gift-giving.

Part six of our year-end holiday series explains how to handle employees’ requests for religious accommodations during the holidays.

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Picture this scenario: It is the busy holiday season and you are a retailer. Orders are flowing in and customers are lining up. Suddenly, a valuable sales associate (who has worked for the company for years) tells you that she cannot work on Christmas eve day for religious reasons Really? What do you?

Before you answer “no,” consider whether you have an obligation to attempt to reasonably accommodate the employee’s request. Ask yourself:

1. Did the employee notify the employer that the objection to the work rule or requirement stems from a bona fide religious belief or practice (as opposed to merely a personal preference)?
2. Can the employer reasonably accommodate the employee’s religious belief or practice without creating an undue hardship on the employer’s business operations?

Under Title VII of the Civil Rights Act of 1964, employees of covered employers (i.e., employers with 15 or more employees) are protected from discrimination at work because of “sincerely held religious beliefs or practices.” Not only are underlying religious beliefs protected from discrimination (and harassment) at work, practices used to carry out those beliefs are within the umbrella of Title VII protection. Common practices associated with religious beliefs include observing religious holidays by not working, wearing religious articles, symbols or clothing, or taking time out of the work day to pray.

Here is the kicker: Under federal law, an employer must reasonably accommodate an employee’s religious belief or practice that is in conflict with a job requirement or rule unless a legally acceptable “undue hardship” would occur. Many state laws include similar requirements. Simply saying, “Our company is religion-neutral and the same rules apply to all employees regardless of religion” is not enough. In most cases, the law requires employers to make reasonable efforts to find a work around to the conflict between an employee’s religious beliefs or practice and the work rule before saying no.

In some cases, a reasonable work around may mean making exceptions to standard policies and procedures. For example, an employer’s uniform or grooming policy that disallows hats at work may be in conflict with certain religions’ requirements to wear head coverings. Absent showing an undue hardship, such as a safety issue, an employer would most likely have to make an exception to its policy to allow an employee to wear religious head coverings at work. Process matters for religious accommodations: an employer must show that it reasonably tried to find an effective solution or work around to the problem before saying no. A good faith interactive dialogue is critical.

Refusing to accommodate an employee’s religious belief or practice must be based on actual facts, not assumptions, speculation or stereotypes. For example, an employer that assumes, without any documented investigation, that allowing an employee time off work to observe the Sabbath would unduly disrupt the schedules of other employees has not done enough to show undue hardship on the business. Maybe other employees would be willing to voluntarily swap shifts with the employee. Likewise, an employer that concludes, based on stereotyped assumptions, that its customers will be put off or frightened by religious clothing or symbols will not satisfy the undue hardship defense. And, the oft-touted floodgates argument—“If I do this for one employee, I will have to do it for everyone”—is not a legally acceptable undue hardship according to the Equal Employment Opportunity Commission (EEOC), which is charged with enforcing Title VII.

Here are some common requested religious accommodations:

• modifying interviewing or testing times to allow for religious observances;
• providing paid or unpaid leave;
• granting extended or scheduled break periods;
• providing flexible departure and arrival times;
• allowing staggered work hours or neutral rotating shifts (to the extent permitted by federal and state wage/hour laws);
• “splitting” or “balancing” truck loads with other drivers;
• advertising on bulletin boards and at roll call for shift swaps;
• permitting employees to ”make up” time lost due to religious practices;
• making exceptions to grooming or uniform policies to allow religious clothing;
• making exceptions to policies requiring photo identification;
• allowing religious expression and prayer at work; and
• contributing union dues to a charity.

Accommodating a religious belief or practice is an undue hardship—and thus not required—if it would impose more than a “de minimis” cost or burden on the employer’s operations. Depending on the facts, undue hardships may include:

• increased safety or sanitation risks;
• increased administrative costs that are more than minor;
• additional overtime costs for employees who assume extra shifts or swap schedules;
• depriving other employees of their seniority rights;
• violating a collective bargaining agreement; ‘
• shifting work to other employees involuntarily;
• forcing other employees to forfeit vacation or other time off work:
• jeopardizing customer relations; and
• modifying grooming standards to the point of threatening the company’s “professional” image.

In the opening scenario, the employer may probe further as to why the employee suddenly wants the day off work, especially if the employee has worked on Christmas eve day in past years without any suggestion of a religious conflict. Again, the duty is to try and accommodate a known religious belief or practice, not a personal preference. Of course, determining when an employer has actual knowledge that the work rule collides with a religious practice is a developing area of the law with varying (and sometimes inconsistent) standards.  However, once the employee insists that the time off is because of a religious belief, further probing is not recommended. Rather, the focus should shift to deciding whether there is an effective work around that will not cause an undue hardship on the business.

The last and final part of our year-end holiday blog series, “Avoiding Mistletoe Mishaps, Part VII: Bonuses Have You Saying ‘What the Dickens?’ Lessons To Learn From Ebenezer Scrooge,” discusses the wage and hour and tax consequences of giving employees year-end bonuses.