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Managing Religious Issues in the Workplace – Supervisor Briefing

Question

Amelia, the president of Acme Communications, is extremely religious and gives Rachel the worst job duties and tasks for not participating in daily prayer sessions as well as other religious activities in the workplace. Is this lawful?

Answer

No. An employer is not allowed to treat acceptance of religion or participation in religious rituals as a term and condition of employment and make Rachel’s job dependent on it.

Objectives of This Briefing

This supervisor briefing examines the best practices for managing religious issues in the workplace. The topics covered include:1. Legal Background2. Avoiding Religious Discrimination,

Harassment and Retaliation

Objectives of This Briefing (con’t.)

3. Reasonable Accommodation of Religious Beliefs and Practices

4. Types of Religious Accommodations5. Best Practices for Supervisors

Legal Background

• Federal law under Title VII as well as many state and local laws prohibit employers from discriminating against employees and applicants based upon their religious beliefs.

• These laws protect an individual’s right to observe and practice their religion as well as the right to be free from religious practice.

Legal Background (con’t.)

DiscriminationAn employer may not take an adverse employment action or otherwise discriminate against an applicant or employee based on his or her religious beliefs, practice or requests for accommodation.

The following qualifies as an adverse employment action:•Failure to hire;•Demotion;•Discipline;•Termination;•Change in pay or benefits; and •Change in terms or conditions of employment.

Employees and applicants cannot be required to participate in a religious activity or adopt, abandon or alter a religious practice as a condition of employment. Example: A supervisor is not allowed to require employees pray during meetings.

Employees and applicants also cannot be required to refrain from participating in religious activity as a condition of employment. Example: A supervisor may not require employees who pray 5 times a day to refrain from prayer during working hours.

Harassment• Harassment based on religion involves

hostility directed towards an individual based on religious beliefs and expression.

• The harassing conduct may be against a religious person or by religious person.

Religious harassment may consist of:• Statements expressing offensive religious

opinions;• Unwanted or offensive proselytizing;• Religiously offensive jokes pranks; or• Stereotyping individuals based on their

religion.

A supervisor should take all steps to address individuals who are subject to severe or pervasive unwelcome statements or conduct based on religion that creates a hostile working environment.

A supervisor should be proactive and take action if on notice of harassing conduct either by individuals practicing religion or by others against the individual practicing religion.

Employees who are recipients of unwelcome religious conduct should report it to supervisors in accordance with the company’s harassment procedures.

Retaliation A supervisor may not retaliate against those who assert their rights under Title VII or state and local antidiscrimination laws.

This means that a supervisor may not take an adverse action against an individual asserting his or her religious rights in the form of requesting a religious accommodation or complaining about or filing a claim of religious discrimination or failure to accommodate.

Reasonable AccommodationEmployers are also required to provide reasonable accommodations (such as schedule changes or modified workplace policies) to individuals to resolve conflicts between an individual’s sincerely held religious beliefs and a work rule or condition of employment unless doing so would cause an undue hardship for the employer.

•An employer may establish an undue hardship by showing that the requested

accommodation poses a more than de minimis cost or burden on the employer’s business operations.

•An undue hardship may be a health, safety, or security concern or a violation

of a collective bargaining agreement.

What Types of Religious Beliefs are Protected?• Title VII and most state and local laws defines religion broadly. • Protection for religious worship

encompasses membership or affiliation with major organized religions such as Christianity, Judaism, Islam, Hindu but also religious beliefs that are not widely known, that are new and have not achieved broad acceptance in society.

Religious beliefs do not need to have a concept of god or gods, Supreme Being or after life. Therefore, atheists who follow a creed may be able to claim that is their religion.

• Creed: A system of religious beliefs, including moral or ethical beliefs about right and wrong that is sincerely held with the strength of religious views.

•However, protection for religion does not protect an individual’s personal preferences rooted in culture,

heritage or politics.

An employer should not immediately assume that an employee’s religious beliefs are not protected if it is not familiar with them. Courts have found that a belief in veganism may qualify as a religious belief.

What Does It Mean To Be Sincerely Held?In order to be protected under Title VII as well as many state laws, a belief must be sincere.Therefore, an employer only needs to accommodate the needs of individuals with sincerely held beliefs.

The following factors may be considered in evaluating the sincerity of a religious belief:• Whether the individual behaves in a

manner markedly inconsistent with the professed belief;

• Whether the accommodation sought is a particularly desirable benefit likely to be sought for non-religious reasons;

• Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the individual for the same benefit for non-religious reasons); and

• Whether the employer otherwise has reason to believe the accommodation was not sought for religious reasons.

An observance of a religious practice can be sincerely held even if it is recently adopted by an individual. Further, the fact that an individual follows a religious practice only on certain days or at certain times of the year, does not make the belief insincere.

Did You Know?

A religious belief can be sincerely held even if an individual recently adopted it and started following it. The fact that an individual has not followed a belief before does not undermine its sincerity.

Avoiding Religious Discrimination, Harassment and Retaliation

Implement PoliciesA supervisor should be sure to enforce an employer’s policies prohibiting discrimination, harassment and retaliation based on religion.A policy prohibiting religious discrimination/harassment should include the following:

Avoiding Religious Discrimination, Harassment and Retaliation (con’t.)

• Description of prohibited behavior;• Well established multi-channel complaint

procedure;• Protections for those who report retaliation;• Assurance of confidence and will only

disclose on need to know basis;• A statement that the employer will follow

up with investigation; and• Remedial measures.

The employer’s policy prohibiting religious discrimination, harassment and retaliation as well as providing reasonable accommodations based on religion should be made part of the employee handbook.

Make Proper Employment DecisionsA supervisor should make sure to use written objective criteria when evaluating applicants for employment or employees and make sure to apply criteria consistently.

•All employment-related decisions should be based on merit, skills and

qualifications. •All employment-related as well as discipline-related decisions should be

carefully recorded and business-related reasons documented for

later reference.

Train EmployeesSupervisors should be sure to provide training to employees on all aspects of religious discrimination as well as the employers’ policies prohibiting discrimination, harassment and retaliation based on religion.

Supervisors should incorporate a discussion of religious expression, and the need for all employees to be sensitive to the beliefs or non-beliefs of others, into any antiharassment training.

Address Complaints of Religious BiasAll complaints of religious discrimination, religious harassment, and retaliation based on religion or failure to accommodate should be immediately brought to the attention of the employer or HR.

•A thorough investigation should be conducted by gathering relevant documents and evidence and interviewing the complainant, the alleged perpetrator and any

potential witnesses. •All steps taken in the investigation should be carefully documented.

• It may be necessary to implement interim measures such as separating

the complainant and the alleged perpetrator.

•The complainant’s complaint should be kept confidential if at all

possible and disclosed only on a need-to- know basis.

•The complainant should be assured that he or she will not face retaliation for bringing a

complaint. •Discipline should be imposed for violations.

Avoid Retaliation• Employees who engage in protected

activity should be protected from retaliation.

• An employee's complaint or opposition to an employer's or supervisor’s unlawful discrimination or harassment constitutes protected activity.

Opposition is protected as long as the employee had a reasonable, good-faith belief that the employer's actions amounted to discrimination or harassment; and opposed the employer's action in a reasonable manner.

Examples of protected activity include:• Filing a charge of discrimination with the

appropriate government agency;• Cooperating with an investigation of

discrimination;• Testifying as a witness at an EEOC

hearing;

• Requesting a reasonable accommodation based on religion;

• Having a reasonable belief that the action complained about constitutes discrimination;

• Making good-faith complaints, or threats to complain, of discrimination; or

• Cooperating with an investigation regarding a co-worker's discrimination claim.

•Activity may be protected even where the underlying claim of

discrimination or harassment turned out to be false, unsubstantiated or inconclusive.

• An employer should make sure not to take adverse action against an employee for engaging in protected activity such as reporting a claim of harassment or discrimination.

An adverse action is any material action that would deter or dissuade an employee from engaging in or supporting a protected activity or a claim of discrimination or harassment.

•In order to avoid retaliation claims, a supervisor should carefully document

legitimate business reason for discipline or performance related actions and provide these to the employee.

•Supervisors should be careful about the timing of any discipline or

performance related actions if the employee asserts religious rights.

Reasonable Accommodation of Religious Beliefs and Practices

What is an Accommodation?An accommodation is any change in the working environment or in the way things are done which would allow an individual to perform their work and also follow their religious beliefs and practices.

Reasonable Accommodation of Religious Beliefs and Practices (con’t.)

• The focus should be on the essential or fundamental functions or core duties of the job.

• An employer is not required to eliminate an essential function of the job or lower production standards (qualitative or quantitative) that are applied uniformly to other employees.

What is an Undue Hardship?• An undue hardship may be created if a

requested accommodation would cause an employer significant difficulty or expense.

• An undue burden on the employer may be a health, safety, or security concern or a violation of a collective bargaining agreement.

Under Title VII and similar state and local laws, an employer must show undue hardship which is more than a de minimis cost on the employer’s business operations.

Relevant factors for determining more than de minimis cost include:• Nature of the workplace;• Nature of the employee’s job duties;• Type of job needing accommodation;• Cost of the accommodation in relation to

the size and operating costs of the employer;

• Willingness of other employees to assist;• Possibility of transferring the employee

and effects;• What is done by similarly situated

employees;• Number of employees available for

accommodation;• Burden of accommodation to the union;

• Number of employees who will need a particular accommodation; and

• The burden on the employer's business (e.g., diminished efficiency, infringement on other employees' rights or benefits, impairment of workplace safety, conflict with another law).

The focus is on assessing the resources and circumstances of the particular employer in relation to the cost and difficulty of providing a requested accommodation on a case-by-case basis.

• An employer may go beyond the requirements of the law and should be flexible in evaluating whether or not an accommodation is feasible.

• An employer may not deny an employee's request for a religious accommodation based on co-worker jealousy or customer preference.

An employer may not deny a request for an accommodation based on customer preference or move an individual requesting an accommodation to a position that does not involve interaction with customers or other third parties.

Interactive Process and Religion• The interactive process should involve good faith communication, discussion and exploration of potential accommodations. • When engaging in the interactive process with an employee seeking a religious accommodation, it is permissible for the employer to seek additional information from the employee regarding the religious practice or requirements, especially if the employer has any sense of doubt or suspicion.

•To obtain a religious accommodation, an employee must show that he or she has a bona fide religious belief, and is not merely seeking to

accommodate a personal preference. •The individual must show the employer that the belief or practice is

religious and it is sincerely held.

Initiating the Interactive Process•Generally an employee or applicant

informs the employer or a supervisor of the issue and the need for a religious accommodation, but is not required to.

•No magic words are required on behalf of the employee or applicant.

• Any statement/act/conduct that puts the employer or supervisor on notice that religion or creed is causing some kind of work conflict or issue is sufficient.

• A supervisor should know how to recognize a request for a religious accommodation.

•Employees should be trained to advise their supervisors of the nature of the conflict between their religious

needs and the work rules. •Employees should provide enough information to enable the supervisor to

understand what accommodation is needed, and why it is necessitated by

a religious practice or belief.

•Supervisors should develop an internal process for recognizing and responding to accommodation

requests. •Each request should be assessed on

a case by case basis weighing the costs and benefits.

A supervisor should attempt to ascertain the nature of the belief or practice, how it will affect work and what kind of accommodation does the employee think will be effective.

•A supervisor may request reasonable documentation of the

religious practice. •Individual beliefs may qualify as religion or creed and may not be documentable or validated by religious authorities.

•A supervisor should avoid stereotypes and assumptions about what is a religious belief or what kind of

accommodation is most appropriate. •A supervisor is permitted to question the

employee about the employee’s religious accommodation needs and available accommodations.

Did You Know?

There are no magic words an employee needs to use to request an accommodation. As long as an employer is on notice that an employee engages in behavior or conduct for religious reasons, an employer is said to be on notice of the need for a religious accommodation.

Ongoing Interactive Process•The supervisor and the employee should

communicate, cooperate and attempt to reach a resolution.

•The supervisor should continue in the quest to provide an accommodation

or show that to provide one would be undue hardship.

•A supervisor should consider all alternative options if the requested accommodation would cause an undue

hardship. •A supervisor may need to provide the

employee with a temporary accommodation while a more permanent one is being explored.

•An employer or supervisor is not required to provide the preferred accommodation, but only an accommodation which would eliminate

the conflict. •The supervisor should consider the proposed accommodation and describe

why it may be inappropriate.

Reasonable Accommodations and Collective Bargaining AgreementsIf a request for an accommodation conflicts with a seniority system or a collective bargaining agreement (CBA) and granting the requested accommodation would deprive another of a benefit, the employer may be able to claim undue hardship.

Even if a request for accommodation conflicts with a seniority system or CBA, a supervisor should not automatically reject the request because the other affected individual may voluntarily agree to accommodate the religious needs of another.

Notwithstanding this, a supervisor should make every effort to confer with the employee as to whether it is able to provide alternative accommodation that does not conflict with CBA.

Complying with Duty to AccommodateIn evaluating whether an employer or supervisor met the burden to reasonably accommodate an employee’s religious belief, the following will be considered:• Whether the employer or supervisor

attempted to accommodate;• Size of workforce;

• Type of job in which conflict is present;

• Cost of accommodation;• Administrative aspects of

accommodations; and• Availability of other employees to

do the work.

Did You Know?

An employee may need an accommodation only during certain times of the year such as Ramadan or Passover which may not apply during the rest of the year.

Types of Religious Accommodations

Leave and Time OffEmployees may need to be provided with altered or adjusted work schedules to accommodate their religious practices. This may be in the form of time off during the day or full days off to observe holidays and worship.

Types of Religious Accommodations (con’t.)

Employees also may be able to use flexible leave policies, paid time off, unpaid leave, flexible scheduling policies, vacation time, telecommuting policies and floating holidays to observe their religious beliefs without too much disruption to the employer’s workforce. An employer need not give off for religious holidays.

Modification of Work ScheduleAn employee's job schedule may also require modification based on an employee's religious beliefs. Example: An employee may require prayer breaks during the workday or reserve time periods during the week for worship.

Accommodations can include:•Modifying the employee's start or finish

time; •Allowing a longer lunch or other time off

in the middle of the workday; or •Changing when aspects of the employee's job must be performed during the day.

An employer may also reasonably accommodate an employee's religious beliefs by allowing a flexible schedule in terms of arrival and departure times and staggered hours so that employees may engage in religious practices and worship.

In such situations, it is advisable to provide the employee with the means to make up lost time due to observance of religious practices so as not to interfere with the employer's operations or unfairly infringe on the rights of other employees.

Voluntary Substitutes or SwapsA supervisor should encourage or publicize to employees to voluntarily substitute and swap with other employees who may have substantially similar job duties.This may help promote camaraderie, tolerance, good will and mutual respect between employees.

Modification of Workplace Tasks and DutiesIt may be reasonable for an employer or supervisor to reallocate, redistribute or alter job functions, tasks or duties to accommodate an employee's protected religious practice. However, an employer does not have to alter the essential functions of an employee's job to reasonably accommodate the employee.

If an accommodation of an employee's job function, duty or task is not possible, the employer should consider providing the employee with a lateral transfer.

Change of Job Assignments and Lateral TransfersIf no other accommodation is possible, an employer or supervisor may want to consider providing the employee with a lateral transfer. This should only be a last resort after considering all possible accommodations.

If a lateral transfer is not available, an employer or supervisor should offer the employee a lower paying position if it would accommodate the employee and allow the employee to decide whether or not to accept it.

Appearance Policies and ReligiousDress and GroomingA supervisor should make all efforts to accommodate an employee’s desire to wear religious garb or paraphernalia to express their faith unless doing so would create an undue hardship such as a safety issue or it interferes with the employee’s work.

Some examples of religious dress include, but are not limited to:•Beards;•Dreadlocks;•Hairstyle;•Religious jewelry such as a cross;

• Religious symbols such as a kirpan or small symbolic miniature sword worn by Sikhs;

• Headgear such as a kippah/yarmulke, turban or hijab;

• Tattoos; and• Body piercings.

If the dress code interferes with an employee's religion, then the employer should discuss potential reasonable accommodations with the employee.

If the employee is unable to comply with a dress code that is a business necessity for safety reasons or public image reasons among other things, then the employer is faced with an undue hardship and need not accommodate the employee.

An employer or supervisor may not assign an employee who requests a religious accommodation with respect to dress codes and grooming to a noncustomer-contact position.

An employer should also prevent others from harassing or discriminating against an individual who wears such religious dress. A supervisor should approach these situations with caution on a case-by-case basis.

Certain states such as California have specific laws addressing religious accommodations based on dress and grooming.

Did You Know?

An individual may be able to claim that his or her tattoos are spiritual and part of their religious observance which may entitle them to a reasonable accommodation based on religion. However, in such a case, an employer may be able to ask an employee to cover the tattoos up. It is a balancing act.

Social GatheringsAn employer or supervisor should avoid hosting social gatherings for employees with overtly religious overtones such as a Christmas party with religious caroling. Employee attendance should be optional.

Prayer, Proselytizing, and Religious Expression

Some individuals may seek to pray in the workplace or outwardly express their faith. Employees should not be permitted to proselytize, pray or engage in religious expression if it would cause undue hardship and unnecessarily disrupt the workplace.

Example: If an employee wants to post a small cross on his or her bulletin board this may not be as disruptive as a large cross. Example: If an individual seeks to pray quietly at their desk, this is very different than praying in the company lunchroom for all employees.

If a supervisor notices an employee who is engaging in religious expression that is disruptive or harassing, a supervisor should identify alternative accommodations that may avoid the disruption such as an unused or private room for prayer.

In such situations, an employer or supervisor should accommodate the employee if it would not cause an undue hardship and other employees are permitted to use the employer's facilities for non-religious purposes in the same manner, such as to read or study for personal purposes.

•An employer may prohibit employees from distributing religious literature

on the employer’s premises as this may be harassing and disruptive and have a

negative effect on co-workers, customers, workplace operations and safety.

•Each situation should be evaluated on a case-by-case basis.

Best Practices for Supervisors

When it comes to religious accommodations, a supervisor should follow these best practices:• Take conflicts seriously;• Once on notice of conflict, try to find a

way to resolve it;• Involve the employee in attempting to

find a resolution;

• Develop a policy of responding to and granting reasonable requests for accommodation based on religion;

• Engage in the interactive process with the employee when faced with a request for accommodation;

• Make a good faith inquiry about the employee's religious practices if the supervisor needs more information;

• Consider all possible options and be creative in offering reasonable accommodations;

• Evaluate whether, in fact, the proposed accommodation will cause the employer undue hardship;

• Treat all religions fairly and equally; and

• Document all discussions with the employee and all considerations of the requested and proposed accommodations.

Test YourselfQuestion 1

Tej is Sikh and wears a kirpan or symbolic miniature sword under his clothing as a commitment to his faith. He requests that he be allowed to wear the kirpan under his bear costume so that he can continue to observe his faith while working. The amusement park has a weapons policy that bans knives and swords. How should his employer respond?

Test YourselfQuestion 1 (con’t.)

a. The employer should allow him to wear the kirpan because doing so would not present an undue hardship and safety risk in violation of amusement park policy.

b. The employer should deny the request because allowing him to do so would cause an undue hardship and safety risk.

c. The employer should deny the request because it violates the amusement park’s dress code and weapons code.

Test YourselfQuestion 1: Answer

a. The employer should allow him to wear the kirpan because doing so would not present an undue hardship and safety risk in violation of amusement park policy.

b. The employer should deny the request because allowing him to do so would cause an undue hardship and safety risk.

c. The employer should deny the request because it violates the amusement park’s dress code and weapons code.

Test YourselfQuestion 1: Rationale

a. Allowing Tej to wear a kirpan under his costume would not create an undue hardship or cause a safety issue in any way. Choice b is incorrect because there is no undue hardship if the kirpan is under his costume and not in view. Choice c is incorrect, because although the employer may implement a dress code as well as a weapons code for employees, the employer must be prepared to make reasonable accommodations based on religion.

Test YourselfQuestion 2

Nandi interviews with Model World magazine. Model World has a strict dress code that prohibits individuals from wearing headpieces. During the interview, Nandi wears a hijab. She does not ask for an accommodation or suggest that she will wear it if she gets the job. When it comes time to decide whether or not she will be hired, Amanda, the supervisor, picks Sheryl over Nandi because she believes that Nandi will request a religious accommodation based on the hijab. Is this lawful?

Test YourselfQuestion 2 (con’t.)

a. Yes, because employers are permitted to institute dress codes for professional business and safety reasons.

b. No, because Amanda let the hijab influence her decision.

c. Yes, because Nandi never specifically requested an accommodation.

Test YourselfQuestion 2: Answer

a. Yes, because employers are permitted to institute dress codes for professional business and safety reasons.

b. No, because Amanda let the hijab influence her decision.

c. Yes, because Nandi never specifically requested an accommodation.

Test YourselfQuestion 2: Rationale

b. An employer is not permitted to let a religious accommodation influence her decision. Choice a is incorrect because even though an employer is allowed to implement a dress code for professional bushiness reasons, an employer must be prepared to make reasonable accommodations. Choice c is incorrect because Nandi does not have to specifically request an accommodation if Model World allows it to unnecessarily influence its decision whether to hire her or not.

© reed business information, a division of reed elsevier inc. managing religious issues in the...

division of reed elsevier

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