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Religion: The Forgotten Protected Status

September 2001

Most often, issues of discrimination revolve around gender or race. However, the same law that codified protection for these groups, the Civil Rights Act of 1964, also provides anti-discrimination protection for employees whose religious beliefs conflict with their job requirements. This article will explain the three elements courts look at when such conflicts arise and will inform employers as to what steps they should take to minimize religious discrimination liability.

Why should I worry about a religious discrimination claim?

Three reasons. One, with workplace diversity ever-increasing, employee religious diversity is also increasing. With over 1200 religions in the United States, the odds that any employer will be subject to a religious discrimination claim are higher than ever before. Two, unlike sexual harassment and racial discrimination, many employers are simply unaware of the pitfalls contained in the religion area. Three, religious discrimination claims are difficult to anticipate. It is easy to recognize an employee of color or an employee requiring a wheelchair access ramp, but how can you tell if someone will need a religious accommodation? You can't simply look at an employee to determine his or her religion.

Element 1 - Is This Employee For Real?
The first thing an employee needs to prove in court is that he or she has a "bona fide religious belief." The EEOC defines this as a "moral or ethical belief as to what is right and wrong and which is sincerely held with the strength of traditional religious views." For your purposes as an employer, a bona fide religious belief is whatever the employee says it is. Why?

Because courts are loath to adjudicate what is or is not a real religious belief. Courts treat every profession of faith as genuine - as genuine as your own beliefs - and employers should do the same. Thus, an employee could one day be an atheist and the next day have an orthodox belief and a court of law would still hold that such beliefs are bona fide, satisfying element one. If a court won't delve into this issue, neither should you.

Element 2 - How Do I Know When To Act?
The second element an employee must prove in court is that he gave proper notice to his employer. Before an employer is required to accommodate an employee's religious belief, the employee must provide the employer with notice of the conflict between his/her religion and the requirements of the job.

First, the employee must notify a supervisor or a member of management that a conflict exists. Second, the employee must say why a conflict exists. In other words, it is not enough for an employee to simply say "accommodate me." He or she must explain to the employer that a conflict exists and how it is due to the employee's religious observance or practice.

Element 3 - Do I Have To Turn The Company Upside Down?
No. In fact, any accommodation that results in an undue hardship on the employer is one the employer does not have to implement. And this "undue burden" defense is valid even if accommodating the employee would cost very little - anything more than a "de minimis" cost to the employer is enough to provide a defense to having to accommodate.

Here are some examples of undue hardships: monetary costs such as paying overtime for other employees to cover the subject employee's shifts; violating a collective bargaining agreement; violating a seniority system (union and non-union); paying higher wages for a substitute or temporary worker; and increased inefficiency shown by more required repairs on final products made by substitute workers.

However, don't guess or estimate what the costs of accommodating an employee will be. Only quantifiable data will be accepted by a court as proof of an undue hardship. Administrative costs to handle a religious accommodation don't count, either.

What Does An Accommodation Have To Do?
If elements one and two are met and no undue hardship exists, an employer must accommodate an employee's religious conflict. What does an accommodation have to do?

Simply, it must eliminate the conflict between the employee's religion and the requirements of his job. First, the employer must propose a reasonable accommodation unless it can prove that all reasonable accommodations would entail an undue hardship. While the employee is required to cooperate with the employer by accepting any reasonable accommodation, the onus is on the employer to suggest those accommodations.

Second, the accommodation can be as little as possible to eliminate the conflict. Employees who request a religious accommodation frequently suggest an accommodation at the same time. The employer is under no obligation to accept that proposed accommodation. Nor does the employer need to give the Chateau Rothschild of accommodations - Gallo will do just fine, if it eliminates the conflict.

Finally, any accommodation must eliminate all conflicts between the job and an employee's religion. For example, if an employer allows shift swapping to accommodate an employee who can't work on Sunday, but that employee believes it is a sin to solicit another person to work on Sunday, then the employer cannot require the employee to seek a substitute - the employer must solicit the substitute itself.

This Is The Essence Of Religious Freedom.
While employers are successful in defending against religious discrimination claims in over 90% of the cases, the vast majority of employees seeking religious accommodations are being genuine - they honestly and fervently believe that their religion prevents them from doing what the employer asks them to do. Treating this situation with the respect it deserves not only protects employers in court, it is a good business practice and such respect will be returned to you threefold.

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