Religious discrimination

We live in an increasingly diverse
world where cultures mix both in
our personal and work lives. As such, we have to be ever mindful of individuals’ rights when it comes to personal
beliefs, including religious practices.

Employers need to know the extent to
which they must accommodate employees’
religious practices, says Job J. Milfort, an
associate in the Atlanta office of Baker,
Donelson, Bearman, Caldwell & Berkowitz,
PC who concentrates his practice in the
areas of labor and employment and business litigation. This knowledge can prevent
workplace disruption, not to mention
potential lawsuits.

Smart Business spoke with Milfort about
addressing religious accommodation requests as well as examples of past court
cases where the employee won and cases
where the company won.

Is an employer obliged by law to accommodate an employee’s religious practices?

An employer must provide a reasonable
accommodation for religious practices
unless doing so would result in ‘undue
hardship.’ Courts have traditionally said
that an undue hardship exists if an employer is required to bear more than a de minimus cost. The Equal Opportunity Employment Council (EEOC) also says that an
employer is not required to provide an
accommodation that is too costly or difficult to provide. To prove an ‘undue hardship,’ an employer must show that all conceivable accommodations would have
imposed more than a de minimus cost.
Reasonable accommodation is defined as a
change in a workplace rule or policy to let
an employee engage in a religious practice.

What are some examples of things that
would and would not be considered ‘undue
hardships’?

Examples of things that would not result
in undue hardship are flexible scheduling,
unpaid leave, allowing employees to use
lunch or other breaks for religious prayer,
voluntary substitutions or swaps, job reassignments and lateral transfers, and modifications of grooming requirements in certain circumstances.

Things that would result in undue hardship are things that require more than ordinary administrative costs (i.e. hiring substitute employee to permit observation of
practice), diminish efficiency in other jobs,
infringe on other employees’ rights or benefits, impair workplace safety, cause coworkers to carry the accommodated
employee’s share of potentially hazardous
or burdensome work (co-workers being
upset is not undue hardship), conflict with
another law or regulation, or change a
bona fide seniority system to accommodate one employee’s religious practices by
denying another employer the job or shift
preference guaranteed by the seniority
system.

What are some examples of cases where the
scale tipped in the employee’s favor?

Four cases come to mind concerning
head and/or body coverings, grooming,
body art and the Sabbath. In the EEOC v.
Alamo Rent-A-Car (D. Ariz. June 2007), a
Muslim plaintiff was awarded more than
$287,000 in back pay, compensatory and punitive damages after Alamo refused to
allow her to wear a head scarf while at
work. In Hick v. Hudson County Corrective
Center (N.J. Superior Court Appellate
Division Aug. 29, 2007), it was ruled that a
Rastafarian corrections officer facing termination for refusing to cut his dreadlocks
may proceed to trial with his religious discrimination claim. In the EEOC v. Red
Robin Gourmet Burgers Inc. (W.D. Wash.
2005), it was ruled that an employee claiming his tattoo represented his belief in
Kemet, a religion with roots in ancient
Egypt, could take his case to a jury. One
example concerned the Sabbath in Baker v.
The Home Depot (2nd Circuit 2006), where
it was ruled that the employer’s offer to
schedule an employee to work in the afternoon or evening on Sunday was not a reasonable accommodation.

What are some recent cases where employers were not held liable?

In Webb v. the City of Philadelphia (E.D.
Pa. June 27, 2007), a police department
established that an undue hardship would
be created if it were required to accommodate the wearing of a khimar by the plaintiff while on duty as a police officer. In
Cloutier v. Costco Wholesale Corp. (1st
Circuit 2004), Costco was not required to
excuse an employee who was a member of
the Church of Body Modification from its
appearance policy where the employee
refused all suggested accommodations
seeking complete exemption from a policy.

What are some steps a company can take to
address a religious accommodation request?

First, engage the requesting employee in
an open and respectful dialogue. Second,
document steps taken to accommodate the
employee. Finally, determine if you can
provide the particular accommodation
that’s requested. If not, consider some
alternatives.

JOB J. MILFORT is an associate in Baker, Donelson, Bearman, Caldwell & Berkowitz, PC’s Atlanta office who concentrates his practice in the areas of labor and employment and business litigation. Reach him at (678) 406-8735 or [email protected].