Religious discrimination Featured

8:00pm EDT June 25, 2008

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 jmilfort@bakerdonelson.com.