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Religious Discrimination in the Workplace: Understanding Reasonable Accommodation

Over the last decade, the U.S. Equal Employment Opportunity Commission has received an average of 3,573 charges of religious discrimination under Title VII of the Civil Rights Act. Those are just the reported incidents; many more are suspected of going unreported, further highlighting the prevalence of religious-based discrimination in workplaces across the country.

Religious discrimination generally manifests in the hiring process, the disciplinary process, wrongful termination, on-the-job harassment, or failure to provide reasonable accommodation. Refusing to hire or promote a candidate or permitting or encouraging harassment of an employee because of his or her religious beliefs are just a few examples of how an employer might violate Title VII, the California Fair Employment and Housing Act, or depending on the state in which the wrongful conduct occurs, other state or local laws. Reasonable accommodation claims, however, are less clear cut.

Title VII's Religious Protections

First enacted by Congress in 1964, Title VII prohibits discrimination in employment based on religion (in addition to other characteristics), protects employees' freedom to practice their religions, and preserves employees' freedom from the imposition of their employers' religious beliefs. The Act's broad protections extend to "sincerely held religious, ethical, or moral beliefs" as well as traditional, organized religious traditions.

There are countless examples of employers' failures to accommodate religious beliefs, practices, dress, and grooming, many of which the EEOC references on its website:

  • Requiring work on the Sabbath or religious holidays.
  • Not permitting schedule changes or leave for religious observances.
  • Not allowing breaks for prayer.
  • Banning Jewish yarmulkes, Muslim head hijabs, or other religious head coverings, jewelry, tattoos, or clothing.
  • Prohibiting facial hair or hairstyles, including Rastafarian dreadlocks or Sikh uncut hair and beard.
  • Requiring clothing such as pants or mini skirts that interfere with an employee's observance of a religious prohibition against specific garments.
  • Failing to respect an employee's objections to serving others on religious grounds, such as a Roman Catholic pharmacist who refused to distribute or provide advice related to contraceptives.

Title VII (and often, other state and local laws) provides a private cause of action for an employer's failure to accommodate an employee's religion. To prevail in this type of claim, an aggrieved employee must prove:

  1. He or she has a bona fide religious belief that conflicts with an employment requirement;
  2. He or she informed the employer of this belief; and
  3. He or she was disciplined or experienced an adverse employment action for failure to comply with the conflicting employment requirement.

Once these elements are shown, the burden then shifts to the employer to prove that either 1) the employee was offered a reasonable accommodation, or that 2) doing so would cause undue hardship to the employer.

Employees need not be provided with the exact accommodations they request if the employer offers a reasonable solution, meaning that an employee's claim of religious discrimination may not survive if the employer offered an accommodation that was reasonable but undesirable to the employee.

The "undue hardship" requirement has traditionally been a low bar for employers, requiring only that the accommodation would cause a de minimis cost to the employer." For example, a requested accommodation could be justifiably denied because it is against general company policy, would increase the company's costs either directly or indirectly (i.e., increasing worker's compensation costs), or could create even a minor safety hazard.

The current "de minimus" standard of Title VII reasonable accommodation could soon be challenged. An appeal in the case of Patterson v. Walgreen Co. is pending before the U.S. Supreme Court, urging the Court to overrule case law in favor of a higher standard. The Court has invited the Solicitor General to file a brief presenting its views, the precursor to a possible review.

In 1993, Congress passed the Federal Religious Freedom Restoration Act (RFRA), which some have interpreted to impose a higher standard than Title VII's religious protections. Rather than require an accommodation only if the imposition on the employer is minimal, RFRA requires accommodation "to the greatest extent practicable." Although the RFRA only applies to federal agencies, this changing interpretation of the employer's burden may ultimately affect the general standard that courts apply. Currently, state and local laws may have greater reach that their federal counterparts.

Employers' Religious Activities in the Workplace

While an employee's religious beliefs deserve protection, what about the religious beliefs of the employer?

The U.S. Constitution bars government endorsement of one religion over another, so by extension, public employers cannot incorporate elements of any particular religion or belief system into their workplaces. But private employers have a great deal more leeway.

In EEOC v. Townley Engineering & Mfg. Co., a ruling guided by the RFRA, the U.S. 9th Circuit Court of Appeals affirmed that a private employer could sponsor worktime devotional services as guaranteed by the First Amendment, provided that the employer comply with Title VII by excusing the attendance of workers not wishing to participate. Thus, private employers may lead prayer meetings, distribute religious-based literature, erect workplace religious displays, and engage in other expressions of religious belief. However, employees who request to be exempted from participation in religious activities at work are entitled to an accommodation unless the accommodation would pose an undue burden on the employer.

The religious discrimination section of the EEOC Compliance Manual makes it clear that "excusing an employee from religious services normally does not create an undue hardship because it does not cost the employer anything and does not disrupt business operations or other workers."

Title VII Doesn't Apply to All Employers

Title VII extends to all private employers, as well as state and local governments and educational institutions, as long as they have 15 or more employees. Additionally, Title VII permits qualifying organizations to hire only people who follow a particular faith to "perform work connected with the carrying on by such corporation, association, educational institution or society of its activities." An example of this exception is a faith-based school that requires its teachers to be members of that faith.

Qualifying religious organizations are not allowed, however, to discriminate in employment on the basis of race, color, national origin, sex, age, or disability. A few recent court rulings, however, have tested those restrictions, permitting Christian schools to terminate or deny employment on the basis of sexual orientation and gender identity. Whether discrimination based on sex also includes discrimination based on one's LGBTQ status is an issue the U.S. Supreme Court may soon choose to decide.

Have You Been a Victim of Religious Discrimination?

Although your employer can inquire into the sincerity of your beliefs by asking the origin of the religion, how long you've been involved, and how your level of involvement has changed, other questions or actions may be inappropriate and unlawful.

If you have been turned down for employment, terminated from a job, or subjected to harassment based on your religious beliefs, or if you have been denied reasonable accommodation or retaliated against for requesting reasonable accommodation of your religious practices, you may be entitled to pursue a discrimination claim against the employer. 

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