Have You Been Accommodating Lately? Why Employers Should Religiously Practice Accommodating Workers’ Religious Beliefs
In our December edition of Employment & the Law, we published an article summarizing the EEOC’s Strategic Enforcement Plan, which outlines the EEOC’s top priorities over the next four years. We are only through the first quarter of the first year of the plan, but given the recent trends over the past few months, the EEOC may need to add another topic to its list: religious discrimination, and in particular, accommodations for religious beliefs.
As most employers are probably aware, Title VII of the Civil Rights Act of 1964 not only prohibits employment discrimination based on religion, but it also requires employers to take steps to reasonably accommodate religious beliefs of applicants or employees. But, what must employers do? Let’s look at a few examples based on the EEOC’s recent activity.
In March, the EEOC settled a lawsuit with an assisted living company over the company’s failure to let an employee take Sunday off. This case revolved around an employee who worked as a dietary services manager in one of the company’s healthcare centers. During most of her time at the healthcare center, she was rarely required to work on Sundays because of her religious observances. Then the company hired a new administrator who refused to allow the employee to take off Sundays, telling her "that God would excuse her from working on Sundays" because she worked in the healthcare field and, in no uncertain terms, told her that if she didn’t work on Sundays, "there’s the door." Not surprisingly, the EEOC concluded that the company’s actions constituted a violation of Title VII and reached a settlement with the company that required the company to pay $42,500 and furnish other relief, including requiring the company to amend its anti-discrimination policy, conduct annual training on religious discrimination, and post an anti-discrimination policy for 5 years.
While this may be an extreme example given the comments made to the employee by the new administrator, consider another lawsuit the EEOC recently settled. The EEOC brought suit against an electric cooperative alleging that the company refused to provide a reasonable accommodation to an employee who requested a day off to attend a Jehovah’s Witness religious convention. According to the employee, she had a sincerely held religious belief that she had to attend this convention, and attendance at the convention was required by her church. When the employee chose to go to the conference without the company's permission, the company terminated her employment. The EEOC brought suit for failure to accommodate, and ultimately settled this lawsuit, recovering $95,000 for the employee and requiring the company to modify its leave policies, provide training to management on religious discrimination, submit reports to the EEOC during a two-year period, and post a notice reinforcing the company’s policies on Title VII.
The EEOC did not stop there. In April, the EEOC sued a Bojangles’ franchise that allegedly denied a reasonable accommodation to a Muslim employee who refused to shave his beard because of his religion. Prior to the employee being hired, he was told that he may need to cut his beard, but the employee refused, explaining to the store manager that he was prohibited from shaving his beard due to his religious beliefs. He was ultimately hired and worked the day after his interview without incident. However, when the location was about to be paid a visit by the district manager, the store manager told the employee to shave his beard. The employee reminded the store manager about his religious beliefs and asked for an accommodation—to wear a beard net. The store manager denied the accommodation and told the employee to leave and not come back until he shaved. The employee left and was then terminated. After failing to reach a pre-litigation settlement, the EEOC brought suit seeking back pay, compensatory damages, punitive damages, reinstatement or front pay, and injunctive relief. The case is currently pending in the Western District of North Carolina.
These three cases might have been avoided if the employer attempted to provide a reasonable accommodation. Keep in mind that while an employer does not have to provide an employee with the accommodation preferred or proposed by the employee, the employer does have to show that it offered a "reasonable" accommodation, unless the reasonable accommodation would impose an undue hardship.
Given the EEOC’s current focus, accommodating religious beliefs and practices, employers should take certain steps to ensure that they are complying with these requirements.
First, employers should make sure their managers are aware that when an employee says he or she cannot perform the job or needs an exception from a company policy and the employee links that request to his or her religious beliefs, managers should seek guidance from Human Resources. An employee or job applicant seeking an accommodation must provide the employer with express notice of the conflict between the employment requirement and his or her religious beliefs, but employers must ensure that this notice is recognized, and referred to the proper department.
Second, employers who receive a request for accommodation should engage in an interactive process to determine whether the employee’s requested accommodation is reasonable or constitutes undue hardship, and whether other reasonable accommodations exist. The employer should not deny an employee’s request for an accommodation without suggesting alternatives to the employee or applicant (unless there is no alternative the employer could provide that would not result in an undue hardship).
Third, given that reasonable accommodation issues often arise in situations where an employee is required to work during a religious holiday (or when the employee wants to attend a religious conference, as was the case above), the EEOC recommends that employers implement policies that allow voluntary substitutes or shift swaps, flexible scheduling, changes in job assignments, or lateral transfers.
In all cases, employers must carefully strike a balance between accommodating employees’ religious beliefs and enforcing other workplace goals and policies. While the standard for what constitutes an undue hardship in the religious accommodation context is lower than it is in the disability accommodation context, case law on what is required varies by jurisdiction. Employers should proceed with caution, particularly since the EEOC has signaled with these three recent cases that it is taking claims regarding religious accommodation very seriously. For questions about religious discrimination and the duty to accommodate, please contact a member of the Troutman Sanders LLP Labor & Employment Group.
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