Covid-19 vaccination mandates over the past year have repositioned the importance of employers’ religious accommodation policies. For many employers, a significant amount of resources have been spent determining when it is appropriate to exempt employees because of their religion and what an accommodation might look like.
This focus naturally resulted in thousands of unwanted discrimination charges before federal and state agencies enforcing anti-discrimination laws.
Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate an employee’s sincerely held religious beliefs, practices, or observances when they conflict with a workplace requirement and unless causes only minimal undue hardship. Case law and agency guidelines tend to favor allegations that an employee is insincere or has a belief, practice or observance that is not religious in nature.
On the other hand, what is considered undue hardship is defined quite broadly in Title VII.
As we approach – and pass – a plethora of holidays and religious events (Easter, Ramadan, Beltane, Passover and Vaisakhi, for example), now may be the time for employers to take a step back and review their religious accommodation policies. Requests for religious accommodation do not only present themselves as requests for exemption from compulsory vaccination. Requests may relate to a change in schedule, the wearing of certain clothing or symbols, facial hair and hairstyles, and the possibility of having prayer breaks.
Here are the key points for employers to keep in mind when considering their religious accommodation policies.
Listen to your employees
This should be the central element of any Equal Employment Opportunity (EEO) policy.
Everyone loves when the other side is listening. Federal investigators and ombudspersons who apply anti-discrimination laws can tell you that the number one reason people give for why they turned to an agency to handle their complaints is that they felt snubbed by their employer.
In addition to decreasing discrimination charges and lawsuits, the information obtained can help direct a workplace investigation and document conversations and viewpoints that may change over time. It also increases employee morale.
Don’t spend too much time trying to prove a negative
Are you spending too much time trying to prove that an employee’s belief, observance or practice is insincere or not religious in nature?
Many of us may be guilty of this, especially after seeing some of the religious demands circulating for Covid-19 vaccination mandates. A cautious employer will note, however, that neither case law nor agency guidelines have yet changed. And while that could still change, the difference could be interpreted narrowly to Covid-19-related claims.
Defending a charge of discrimination or a lawsuit based on the insincerity or religiosity of a belief, observance or practice is still, and likely will remain, an uphill battle.
Unless it’s otherwise perfectly clear, spending resources on this investigation does indeed spin the wheels. If you are tempted, move on to an undue hardship analysis.
Perform undue hardship analysis
Are you spending enough time determining whether an accommodation would cause undue hardship?
Unlike sincerity and religiosity, employers will have an easier time if undue hardship is the reason for denying an employee’s request for religious accommodation. An employer need only demonstrate that a religious accommodation would cause more than a minimal burden in terms of costs, operations or co-workers.
Here are some potential examples:
- Accommodation would violate a trade negotiation agreement and result in grievances.
- Colleagues would have to bear the burden of multiple additional tasks.
- Productivity would suffer.
- A legitimate security issue exists.
- The cost is prohibitive.
- The religions of other individuals would be hindered; and
- Any combination of the above is detrimental to an employer.
If there’s one place to spend resources, it’s on undue difficulty. Make sure your policies allow for this analysis.
Have an individualized and consistent process
Both the agency’s and the plaintiff’s lawyers are looking for general outlines and rulings. Why? Because there is the possibility for class cases.
The law requires employers to accommodate individual religious beliefs, practices and observances. Employers would be well advised to heed the cliché that there is an exception to every rule.
If the process is not sufficiently individualized, employers can unfortunately find this exception, in the form of a potential lawsuit. On the other hand, employers will want decisions to be consistent.
The easiest way to achieve consistent, individualized decisions is to have a centralized set of decision makers well trained in religious accommodations.
Ensure your policy complies with state and local laws
Remember that states and localities may often have their own rules regarding religious accommodation. These can take the form of statutes and common law.
Federal law sets a floor, not a ceiling. Although many of these laws simply reflect federal law, there are outliers.
As an example, California, Minnesota, and New York all have undue hardship standards that are narrower than federal law. Staying compliant with state and local laws can be a challenge (especially for domestic employers who may have to employ policy endorsements), but it is a necessity.
Focusing on listening and establishing an individualized process, analyzing undue hardship, and following federal and state/local laws can all help make a religious accommodation policy reliable, inclusive, and compliant. Taking these steps now can lead to increased employee morale and could save employers the time and money spent defending themselves against discrimination charges and lawsuits.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Sean Oliveira, a partner in the St. Louis office of Ogletree Deakins, focuses his practice on a myriad of employment law issues, including furloughs and workplace investigations. Previously, he spent nearly 15 years as a federal investigator with the EEOC.