Religion at Work: A Tightrope Walk for Employers
Most employers recognize that they cannot ignore the religious needs of their employees. They realize that it is necessary to work with their employees to try to accommodate their religious beliefs not only to avoid liability but to maintain a harmonious work environment. But, imagine discovering that several of your employees decided to rub olive oil on the doorway of another employee’s cubicle and then proceeded to chant vociferously, commanding “demons to leave…you vicious evil dogs [to] get the hell out” of their co-worker. As a private employer, your reaction most likely would be to consider whether these acts disrupted the work environment and then to determine if and to what extent the acts deserve reprimand. What you probably would not consider is that these actions might constitute expressions of your employees’ religious beliefs that are protected by law. Think again. As a Texas federal court explained when recently faced with these very facts, employers must always be mindful that employment decisions involving employee religious beliefs or observances be handled with care. While this case may be a far cry from the more common religious-based workplace issues (like requests for time off for religious observances or requested exceptions to grooming and dress standards), it is important for employers to remember that religious issues may arise in the workplace in a wide variety of situations, each of which presents its own unique set of considerations and difficulties.
When religion meets the workplace, employers face many challenges and potential liabilities. Title VII of the Civil Rights Act of 1964 (Title VII) not only prohibits employment discrimination based on religion, but it also requires employers to take steps to reasonably accommodate the religious beliefs or observances of their employees. Courts have determined that the definition of “religion” is broad and includes “all aspects of religious observance and practice, as well as belief.” Additionally, religious beliefs held by an employee need not be part of a recognized religion or religious group in order to be protected; such beliefs only need to be “sincerely held” by the employee. Given this mandate, employers should educate themselves about the various areas where liability can arise in order to avoid costly litigation.
Disparate Treatment: Employers are prohibited from considering the religion of an employee or job applicant when making employment decisions. In other words, an employer may not treat employees or applicants more or less favorably because of their religious beliefs or practices. If an employer takes an adverse employment action against an employee or job applicant and that action is motivated by the individual’s religion, the individual may bring a “disparate treatment” claim against the employer.
In the case described above, a federal court in Texas recently ruled that two employees bringing a disparate treatment claim against the University of Texas at Arlington (UTA) were entitled to have their claims heard by a jury. In that case, three UTA employees performed an after-work prayer in the office involving loud chanting and the use of olive oil near the entryway of an absent coworker’s cubicle in an effort to rid the absent co-worker of her “demons.” Two of the employees were terminated; the one who reported the incident was not. UTA argued that its decision to fire the two employees was justified because their actions constituted harassment of the absent employee, “behavior unbecoming of a UTA staff member” and a blatant disregard for university property. It also argued that it was justified in not firing the third employee because he was a “whistleblower” who reported the improper work conduct. The judge did not find the argument compelling and pointed out that all three employees were involved in the prayer session in some manner, yet the consequences of their actions ended with different disciplinary results. Thus, the judge found that the fired employees could pursue their disparate treatment religious discrimination claim against the University.
It is important to note that Title VII prohibits discrimination based upon an individual’s own religious beliefs and not those of his or her employer. To illustrate, a federal appeals court upheld a decision finding that an employer did not violate Title VII when it discharged employees for having an extra-marital affair, where the employer viewed the affair as inconsistent with its own religious beliefs and having an affair had no religious significance to the discharged employees. But, where an activity has sincerely-held religious significance to an employee, an employer may not make an employment decision based on that activity. To do so would leave the employer susceptible to a religious discrimination lawsuit.
Failure to Accommodate: Charges of religious discrimination often are based on an employee’s claim that the employer refused to accommodate the employee’s religion, typically by refusing to grant time off for religious observances. Employers are usually not required to abolish otherwise neutral and generally applicable policies that happen to disparately impact employees with certain religious beliefs. However, an employer is required to “reasonably accommodate” an employee’s religious belief or practice unless doing so would impose an undue hardship on the employer.
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 religion or religious beliefs. The Seventh Circuit recently confirmed this requirement in Xodus v. Wackenhut Corporation. In Xodus, an applicant was rejected for employment because his dreadlocked hairstyle failed to conform to the employer’s grooming policy. The rejected applicant sued, arguing that he wore dreadlocks as an adherence to his religion, Rastafarianism, and that he was denied a job because of his refusal to cut his dreadlocks, which would contravene a tenet of his religion. The applicant never explicitly informed the employer of his religious belief. Instead, when the employer told the applicant that he would not be hired until he cut his hair, the applicant responded, “[t]hat’s why I am suing…. It’s against my belief.” The Court found it significant that the applicant failed to expressly bring his religious beliefs to the attention of the employer and concluded that, since the employer did not equate the applicant’s reference to “belief” with religion, the employer did not discriminate against the applicant based on his religious beliefs.
Religious Harassment : Religious harassment claims generally fall under one of two theories. The first theory involves a situation in which an employee claims that the employer demanded that the employee abandon, alter, or adopt a religious practice as a condition of his or her employment. The second theory involves a set of circumstances in which an employer creates a religious “hostile work environment” that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. Both types of claims can expose employers to great liability, and both types of claims may be brought in a single case. Consider, for example, a case in which a federal court in Colorado held that an employer’s religious views “saturated the workplace.” In that case, the CEO/ President of the company sent employees audiotapes of prayers and religious scripture, gave a religious-themed speech at a company award dinner, and presented a “corporate prayer,” which all employees were required to sign. Consequently, the Court awarded $750,000 in punitive damages to an employee who sued for religious harassment. Such liability can be avoided when the employer diligently maintains a harassment-free work environment.
Practical Advice for Employers
Treat Everyone Equally: The advice found in this playground adage still rings true today, especially for employers. Employers must treat employees equally regardless of their religious beliefs and practices. In the UTA case, the university terminated two employees for conducting a prayer vigil in the workplace but failed to terminate a third who was also involved. Employers should always ask themselves whether they are treating similarly-situated employees differently than others, and if so, whether the reasons for doing so are legitimate and legally permissible. Moreover, employers must be mindful that they cannot consider an applicant or employee’s religion or religious beliefs when making employment decisions.
Make Reasonable Accommodations and Remain Consistent With Your Own Internal Policies: Typically, reasonable accommodation issues arise in situations where an employee is required to work on a religious holiday or to conform to certain dress codes and/or grooming guidelines that conflict with his or her religious beliefs. To that end, the Equal Employment Opportunity Commission (EEOC) recommends that employers implement policies that allow voluntary substitutes or shift swaps, flexible scheduling, changes in job assignments, or lateral transfers. But these suggestions do not provide guidance for certain other delicate issues of accommodation, such as prayer at work. If an employee’s religious beliefs require time for prayer during the workday, the employer should try to find an appropriately private and separate area to allow for such prayers, maybe an office or conference room.
In all cases, employers must carefully strike a balance between accommodating employees’ religious beliefs and other workplace goals and policies. Such workplace policies and goals should be clearly communicated to employees. Importantly, an employer is not required to accommodate if such accommodation infringes on the rights of fellow employees. In the case against UTA, however, the judge determined that no employee rights were infringed because the object of the prayer was unaware of its occurrence and the university’s own harassment policy expressly allowed prayer. Further, the judge referred to the fact that the fired employees’ department supervisor stated that the university’s duty to accommodate depended “on the type of prayer” and whether it was “offensive.” The judge determined that this reason was not only inconsistent with the university’s harassment policy, but it did not conform to the law. Remember, an employer cannot consider the substance of an employee’s belief when making employment decisions or when determining whether accommodation would result in undue hardship.
Don’t Play the Guessing Game: Religious affiliation, beliefs, and practices are not always apparent, nor are they easily determined. A job applicant or employee has a duty to expressly notify the employer of a conflict between his or her religious beliefs and an employment policy or practice. This provides employers with a certain amount of protection against having to guess the religious convictions of applicants or employees. However, employers should still be sensitive to the fact that many employees do, in fact, hold strong religious beliefs. Being consistently mindful of this should help avert costly litigation.