As we write this, the ongoing battle over an observant Christian elected county clerk in Kentucky’s objections to issuing marriage licenses to same-sex couples in her own name have the Social Media Amateur Lawyer’s Association working overtime, misstating the facts and the law on both sides. While the case of Kim Davis is not directly applicable – she’s an elected official rather than a statutory employee, and her employer is government as opposed to a private business, her case brings up a lot of things that HR professionals and anyone who supervises staff in any context needs to be aware of.
- Employers have a legal obligation to accommodate employee religious practices and beliefs. Title VII of the Civil Rights Act of 1964 specifically includes religion as a class entitled to special protection against discrimination in hiring, firing, promotions, employee discipline, and the like. If a reasonable accommodation is possible, a covered employer must provide that accommodation.
- The employee does not have to be a member of any specific religious sect or group or set of groups to be entitled to protection. You as the employer are not the arbiter of what practices or beliefs are legitimate. For example, if your Mormon employee decided he needed to pray to Allah five times per day, it is not your place as an employer to argue that that’s a Muslim custom, not a Mormon one, or that his or her faith does not really require it. The standard is whether the employee has a heartfelt belief that this is his or her religious obligation.
- The accommodation must be reasonable. The employee’s right to accommodation is not unlimited. To be reasonable, the accommodation must be made as long as the cost to the employer is low or nil, the accommodation does not require the employer to substantially change the business model or concept, and it does not force other employees to take on an additional burden of dangerous or offensive work.
For example: If you have a chain of Barbecue restaurants, and an employee converts to Islam or Judaism and asks to take off Friday nights to attend religious services, you may be required to accommodate this individual by moving some shifts around or moving this individual to some job responsibilities that do not require his presence on Friday evenings.
However, if the same employee comes to you and says he can no longer serve pork products in any form, you are not going to be required to change your restaurant to a vegetarian eatery to accommodate him. That would not be a reasonable request and would pose an undue hardship on the employer
Each case is handled individually. A reasonable request at one business may be an impossible demand on another. So the law gives courts wide latitude to make determinations as to what is and is not reasonable in any given case, given the totality of the circumstances, the business and the employee.
This is just at the federal level. Individual states may make additional demands of employers to accommodate the religious obligations of their employees. But they may not do anything less than what the federal law requires.
Since 2010, the EEOC has filed 68 lawsuits against employers nationwide, and has recovered some $4 million in damages in addition to securing a variety of injunctions and other sanctions against employers who ran afoul of the law.
Earlier this summer, the Supreme Court ruled in favor of Samantha Elauf, a teenager (at that time) and Muslim who interviewed with the well-known retail clothing store Abercrombie & Fitch in Tulsa, Oklahoma. She wore a hijab to the interview – a headscarf – but did not ask for a religious accommodation at the interview. The store management deemed her headscarf to be a violation of the store dress code, which prohibited headgear of any kind, and directed the interviewer not to higher her. The case made it to the federal Equal Employment Opportunity Commission, which sued Abercrombie & Fitch on Elauf’s behalf. The case went all the way to the Supremes, and it wasn’t even close: The vote was 8-1.
“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an Orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays,” wrote Justice Antonin Scalia in the majority opinion. “If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.”
In 2013, Scottish Food Systems, Inc. of Laurinburg, N.C., an operator of Kentucky Fried Chicken franchises, told a female employee that she had to wear pants on the job. The employee claimed she was a member of a religious community that forbade women to wear pants. The restaurant fired her on the basis of her violation of the dress code. The EEOC filed suit and prevailed. Scottish Foods agreed to settle the case for $40,000. The court also imposed a consent decree under which the company agreed to adopt a formal religious accommodation policy, as well as conduct annual training programs to help prevent religious discrimination in the future. The consent decree also required them to post a copy of their policy in all locations.
AutoZone, Inc., also got into hot water in September 2010, when a newly converted Sikh reported he was experiencing harassment and discrimination on the job arising from his religious obligation to wear a turban.
According to the EEOC’s lawsuit, filed in U.S. District Court for the Eastern District of Massachusetts in Boston (Civil Action No. 1:10-cv-11648), AutoZone managers at its Everett, Mass., location harassed Mahoney Burroughs by disparaging his religion, asking if he had joined Al-Qaeda and whether he was a terrorist. AutoZone also failed to intervene when customers referred to him as “Bin Laden” and made terrorist jokes. The EEOC also charged that AutoZone refused to let Mahoney Burroughs wear a religiously mandated turban and kara (a religious bracelet). Finally, the EEOC alleged that AutoZone terminated him because of his religion and in retaliation for asking for an accommodation and complaining about discrimination. AutoZone wound up paying $75,000 to settle this case as well.
There are a number of other case studies of recent EEOC cases here, some of them still winding their way through the court system. While nobody can know for sure how the courts will rule in any particular case (or what the terms of any settlement out of court will be), the reader can get a solid sense of the kinds of policies and reactions to religious and atheist workers who have sought accommodation for religious beliefs under Title VII.