Do you believe in religious accommodations?

March 2015
Ryan B. Frazier
Utah Employment Law Letter

Ever since the first Pilgrims settled Massachusetts in 1620, religion has found a shelter—albeit an imperfect one—in what would become the United States. Many European settlers immigrated to the New World to escape religious persecution and pursue religious freedom. Despite religious disputes and conflicts throughout American history, a dynamic religious plurality has generally been embraced in the United States. Jews, Christians, Muslims, Hindus, and followers of other religions call the United States home. Atheists and agnostics also have a place in American society and culture. Although individuals may not see eye to eye on religious beliefs, there is a shared recognition that everyone should be able to practice their religion as they see fit as long as they do not harm others or infringe upon their rights. Religious beliefs and practices pervade every aspect of American life, including the workplace. On February 25, 2015, Michael A. Helfand, a law professor at Pepperdine University School of Law, discussed recent court rulings on religion in the workplace in a USA Today column. Helfand stated, “For the religious, beliefs and practices are simply part of life regardless of where they find themselves. And to establish artificial distinctions that place obstacles before those who seek to bring their religion into the commercial sphere is to fundamentally misunderstand the comprehensive nature of the religious experience.” 

Sometimes job requirements and religion clash. Balancing employees’ right to engage in religious practices and employers’ need to ensure compliance with workplace requirements can be difficult. To ensure employees’ right to practice their beliefs is not eviscerated, federal and state law generally require employers to allow employees to practice their beliefs, even when they are on the clock. In those instances, employers must provide religious accommodations. Understanding your obligation to accommodate employees’ religious practices and beliefs under Title VII of the Civil Rights Act of 1964 will help you work with employees who seek religious accommodations.

Religious accommodations

The vast majority of employers understand their duty to reasonably accommodate employees’ disabilities under the Americans with Disabilities Act (ADA) and similar state laws. Employers are less familiar with their duty to accommodate employees’ religious practices and beliefs under Title VII and—in the case of public employees—the First Amendment to the U.S. Constitution. Not only does Title VII prohibit employment discrimination based on religious beliefs, but it also requires employers to accommodate employees’ and applicants’ religious beliefs and practices in most circumstances.

When an employee’s religious belief or practice conflicts with an employment requirement, an accommodation is necessary unless it would result in an undue hardship. An effective accommodation should eliminate the conflict.

Sincerely held religious belief

Title VII requires employers to accommodate employees’ religious beliefs. No accommodation is required for secular or nonreligious beliefs; political, cultural, or sociological preferences; or philosophies not covered by Title VII. “Religion” is broadly defined under Title VII. Religion includes “all aspects of religious observance and practice, as well as belief.”

Title VII’s protections extend beyond “traditional” organized religions. They encompass unique, new, or nontraditional religious beliefs that may seem “illogical or unreasonable to others.” According to the Equal Employment Opportunity Commission (EEOC), “Religious beliefs include theistic beliefs as well as non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional
religious views.” Religious beliefs must be genuine and sincere, but judging an employee’s sincerity is extremely difficult. Unless there is good reason to disbelieve an employee’s sincerity, employers should accept the employee’s claim at face value in most instances. 

Of course, that begs the question: What if an employee uses a phony religious belief to gain a privilege or benefit not available to all employees? When the need for an accommodation is doubtful, an employer may make a limited inquiry into the sincerity of an employee’s belief or practice and ask whether the accommodation is actually needed. The employer’s evaluation should focus on whether the facts belie the employee’s professed belief or practice. For example, if the employee acts inconsistently with her claimed practice or belief, there may be room for doubt. Bear in mind that religious beliefs change, and inconsistent actions in the past may not disprove an employee’s current belief.

In addition, an employer should not focus on a group’s or church’s beliefs. Religion is a very personal and individualized matter. Employees may have views, beliefs, or practices that are unorthodox or inconsistent with the beliefs held by an organized religion or a religious group.

Employees must request accommodation

As with reasonable accommodations under the ADA, religious accommodations must be requested by employees. Specific wording is not required to make an accommodation request. An employee need only make
her employer aware of her need for an accommodation. That may be as simple as expressing concern that a particular work requirement is incongruous with her religious belief or practice.

However, in 2013, the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Utah employers) made it clear that an employee must make her employer aware that a practice needs an accommodation because of religious reasons. In EEOC v. Abercrombie & Fitch Stores, Inc., the court ruled that a young Muslim woman failed to properly request an accommodation to wear a head scarf while working at a retail store because she did not notify the employer that she wore the head scarf “for religious reasons.” That case is being appealed to the U.S. Supreme Court.

A proper accommodation request triggers the interactive process, which requires the employer and the employee to engage in a dialog to find an accommodation that eliminates the conflict. The fact that an employee requests an accommodation does not require the employer to provide the requested accommodation. As long as an accommodation effectively resolves the conflict, it should satisfy Title VII’s requirements. 

A word of caution here. An employer should not inquire into an applicant’s or employee’s religious convictions unless an accommodation request is made. As explained by the 10th Circuit in the Abercrombie case, “The EEOC discourages employers from making inquiries in the first instance regarding the religious beliefs or practices of applicants (and presumably employees) because ‘an applicant’s religious affiliation or beliefs . . . are generally viewed as non-job-related and problematic under
federal law.’” Such an inquiry could lead to an inference that the failure to hire an applicant or an employee’s discharge resulted from religious discrimination. The inquiry is appropriate only after an employer is put on
notice that a religious accommodation is needed—and only then to explore the need for an accommodation.

Undue hardship

There is a key exception to the duty to accommodate. Employers must accommodate employees’ religious beliefs and practices unless the accommodation would cause an undue hardship. Title VII’s undue hardship
standard is not as difficult to meet as the undue hardship standard associated with the ADA. In the religious accommodations context, undue hardship means exerting more than minimal effort or spending more than minimal expense. It is more than inconvenience or difficulty, but it does not place a substantial burden on the employer.

An accommodation’s cost is one way of showing undue hardship. If the hardship is purely economic, more than a de minimis (minimal) cost must be shown. The burden placed on the employer should also be considered. For example, an accommodation that undermines the safety of a worksite likely would not be required. In addition, an accommodation should not harm or infringe upon the rights of other employees. However, decreased morale because of an accommodation is likely not an undue hardship.

Further, employers do not have to provide illegal accommodations. Specifically, in Yeager v. FirstEnergy Generation Corp., the 6th Circuit held that allowing an employee to refuse to provide a Social Security number
in violation of federal law was not a required accommodation under Title VII.

Bottom line

Employers must do more than tolerate employees’ religious beliefs. In some instances, employers must accommodate them. After receiving a religious accommodation request, employers should either grant the accommodation or engage in the interactive process to find an alternative accommodation. Do not inquire into applicants’ or employees’ religious beliefs unless an accommodation request has been made. Employers should consult legal counsel if they believe an accommodation should not be granted because it is illegal or would result in undue hardship.

Attorneys