Covid-19 vaccination mandates over the last year have repositioned how important employers’ religious accommodation policies can be. For many employers, a significant amount of resources have been spent on determining when it is appropriate to exempt employees due to their religion and just what an accommodation might look like.
This focus has naturally resulted in thousands of unwanted charges of discrimination 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 belief, practice, or observance when it is in conflict with a workplace requirement and unless doing so would cause more than a minimal undue hardship. Both the case law and agency guidance tend to disfavor claims that an employee is insincere or has a belief, practice, or observance that is not religious in nature.
On the other hand, what counts as an undue hardship is defined rather broadly under Title VII.
As we approach—and pass—a plethora of religious holidays and events (Easter, Ramadan, Beltane, Passover, and Vaisakhi as examples), now may be a good time for employers to take a step back and look at their religious accommodation policies. Religious accommodation requests do not just come as exemption requests from mandatory vaccination. Requests can be for a schedule change, the wearing of certain clothing or symbols, facial hair and hairstyles, and the ability to have prayer breaks.
Here are key points that employers should bear in mind when considering their religious accommodation policies.
Listen to Your Employees
This should be the central component of any equal employment opportunity (EEO) policy.
Everyone likes it when the other side listens. Federal investigators and mediators that enforce anti-discrimination laws can tell you—the number one reason individuals cite for what pushed them to go to an agency to handle their complaints is that they felt snubbed by their employer.
Aside from diminishing charges of discrimination and lawsuits, the information obtained can help direct a workplace investigation and document conversations and views that could 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 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 requests floating around for Covid-19 vaccination mandates. A prudent employer will note though that neither the case law, nor the agency guidance has changed yet. And while it might still change, the difference could be narrowly construed toward Covid-19 related requests.
Defending a charge of discrimination or lawsuit based on insincerity or the religiosity of a belief, observance, or practice is still, and likely will remain, an uphill battle.
Unless it is otherwise abundantly clear, spending resources on this inquiry is effectively spinning your wheels. If you are tempted, move forward to an undue hardship analysis.
Do the Undue Hardship Analysis
Are you spending enough time determining whether an accommodation would cause an undue hardship?
Unlike sincerity and religiosity, employers will have an easier time if undue hardship is the reason for the denial of an employee’s request for religious accommodation. An employer need only show that a religious accommodation would cause more than a minimal burden in terms of costs, operations, or co-workers.
Here are some potential examples:
- The accommodation would violate a collective bargaining agreement and lead to grievances.
- Coworkers would have to bear the load of multiple additional duties.
- Productivity would suffer.
- A legitimate safety concern exists.
- Cost is prohibitive.
- Other individuals’ religions would be hampered; and
- Any combination of the above is detrimental to an employer.
If there is one place to expend resources, it is with undue hardship. Make sure your policies allow for this analysis.
Have an Individualized and Consistent Process
Agency and plaintiff’s attorneys both look for broad strokes and generalized decisions. Why? Because there lies the possibility for class cases.
The law requires that employers accommodate individual religious beliefs, practices, and observances. Employers may be well advised to heed the cliché that there is an exception to every rule.
If the process is not individualized enough, employers may unfortunately find that 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 and individualized decisions is to have a centralized set of decision-makers well-trained in religious accommodation.
Make Your Policy Comply With State, Local Laws
Remember that states and localities can often have their own rules with regard to religious accommodation. These can come in the form of statutes and common law.
Federal law sets a floor, not a ceiling. While many of these laws simply mirror federal law, there are outliers.
As one example, California, Minnesota, and New York all have narrower undue hardship standards than federal law. Remaining compliant with state and local laws can be a challenge (especially for nationwide employers who may have to employ policy riders), but is a necessity.
Focusing on listening and establishing an individualized process, undue hardship analysis, and compliance with both federal and state/local law all can help make a religious accommodation policy reliably inclusive and compliant. Taking these steps now may lead to an increase in employee morale and could save employers the time and money spent defending against charges of discrimination and lawsuits.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Sean Oliveira, an associate in the St. Louis office of Ogletree Deakins, focuses his practice on myriad employment law issues including leaves of absence and workplace investigations. He previously spent nearly 15 years as a federal investigator with the EEOC.