The key to avoiding conflicts in this area, and preventing litigation, is discussing the requested accommodation with the employee making the request and trying to sort out possible solutions as well as understanding what the actual conflict is. Not only are employees less likely to turn to litigation as a solution if they feel heard, but the law in the area of religious accommodation requests is much like the law when facing a request for an accommodation for a disability. Investigators at the Commission and judges in the courts will be looking first to see if the employer sat down and discussed the request, the basis for it, and how it might be handled. Unlike accommodation requests in the disability area, requests for accommodation in the area of religion may be rejected if there is “more than de minimis cost.” That is, if the cost is much more than minimal, the employer probably does not have to provide the requested accommodation. The question is whether the accommodation would impose an “undue hardship” and more than minimal cost falls into that category. Knowing where that limit lies, however, is pretty tricky and there is no clear guidance, meaning that the conservative approach to avoiding litigation is to try to work something out if possible and to have plenty of conversation about it (documenting each effort to come up with a solution). Keeping that overarching approach in mind, below are some examples to illustrate how to handle issues in this area:
What do you do when you have an employee who is leaving religious materials on another employee’s desk, is repeatedly asking that employee to join her at her church, and that targeted employee complains about that behavior?
The law does not require employers to allow an employee to impose his or her religious views on other employees. In fact, allowing that conduct could result in a harassment claim based on religion. For example, suppose an employee wanted to put up a poster stating that homosexuals are an abomination and will all go to hell. In Maine, sexual orientation is a protected category under the Maine Human Rights Act; tolerating such a poster could subject the company to liability for discrimination on the basis of orientation. The law does not require the company to allow that poster and the employee can (should) be told to take it down and take it home. Even if the material did not target anyone, the employees receiving the materials have a right to practice their own religions or other moral choices and have a right to be free of someone trying to force them to change their religious views. As a result, if one of the employees receiving the materials complains, the employee leaving those materials should be told to stop and to leave other employees alone and free to practice what they choose.
According to the Equal Employment Opportunity Commission, “[e]xpression can create undue hardship if it disrupts the work of other employees or constitutes – or threatens to constitute – unlawful harassment. Since an employer has a duty . . . to protect employees from religious harassment, it would be an undue hardship to accommodate such expression.” At the same time, the EEOC wrote in a separate section discussing co-worker complaints, “Undue hardship requires more than proof that some co-workers complained; a showing of undue hardship based on co-worker interests generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work.”
A supervisor comes to upper management and says that some of the employees are fasting for a holiday and they are concerned that the employees may become weak or dizzy, thereby creating a safety issue. How do you respond?
If the supervisor actually observes a physical problem or slow down in production it is ok to step in and address the work place behavior. Making assumptions about fasting or prohibiting it is problematic, however. These concerns often arise because a supervisor knows that an employee practices a certain religion that can include fasting (as several religions do) and the supervisor’s concern is generated by knowing what religious views the employee has. In contrast, that same supervisor isn’t usually going to every employee and asking each if they had a good breakfast, are on a fad diet, or engaging in some other diet that could also make an employee weak or dizzy. The bottom line is to avoid assumptions based on knowledge of an employee’s religion and focus on work conduct and performance.
You have an employee who asks not to have to work Sundays. You tell them they are free to switch around with other employees but the other employees don’t want to work that employee’s Sunday shifts PLUS their own. Do you have to force another employee to work the requesting employee’s Sundays?
Most courts agree that an employer does not have to force another employee to take on extra burdens to allow a religious accommodation – in legal lingo, forcing another employee to do that would constitute an undue hardship. As the EEOC has put it, “an employer can show undue hardship if accommodating an employee’s religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.” It helps to be creative, thinking about whether the requesting employee might be able to make up the time later or whether they could be assigned to a different position with the same pay and benefits. The employer should also make sure there is a workable system in place to allow and encourage swaps among employees to the extent that works at the particular workplace.
An employee tells HR that they cannot serve gay patrons because they religiously object to that “lifestyle” and find it offensive. How does HR deal with that?
Most courts say that it is an undue hardship if an employee wants to refuse to serve certain customers or clients. The one example the EEOC in its guidance document gave of where something might work was a pharmacist who did not want to provide birth control medication for religious reasons. It would be an undue hardship if the pharmacist refused to take or handle those calls at all. But it might be a reasonable accommodation if the pharmacist took the calls, politely put the person on hold telling them they needed to be referred to the person specializing in that area, and another pharmacist took it from there, all without the caller knowing they were being regarded as a problem by the pharmacist with religious objections. Such a system would need to be worked out in advance and, if the other pharmacist was not available at any point, the pharmacist taking the call would have to proceed to handle it. With an objection to serving gay customers, the accommodation is much harder to carry out because it would not only involve guessing at each customer’s orientation but segregating that population out could be discriminatory. An employer does not have to engage in discrimination to accommodate an employee’s religious objections – an employer could validly and legally turn down such a request. That being said, the employer should still engage in the back and forth discussion and also remind the employee of the need to treat all patrons equally, regardless of orientation, race, age, gender, or any other protected characteristic.
A factory has machinery that operates around the clock, non stop. Certain Muslim employees request time to pray. HR allows the time but then other employees say they want the same chance to break to discuss Bible passages. How does HR proceed?
The initial discussion with employees should focus on finding out what their religious beliefs are and what the conflict is between work and following those beliefs. With the Muslim employees, there are set times during which prayers must be done, though there is flexibility to some degree and that flexibility can vary. The length of time may also vary but the time needed is generally relatively short. As an example of a request that would not have to be accommodated, leaving work is not something an employer has to permit and thus would not need to accommodate.
The request for time to discuss the Bible seems as if it could easily be allowed during regular breaks. There is no need to do that during the same prayer times needed by the Muslim employees. If there is space that can be set aside for prayer and/or other discussions, that is ideal but not always possible, particularly in smaller places of employment.
The key with such multiple requests is to make sure the machinery keeps running while allowing both prayer and Bible study. If the machinery had to be shut down, that would be an undue hardship. Oftentimes, however, there is already a process in place for coverage when, say, an employee needs to go to the bathroom or feels ill or has a regular break and that process can be adjusted to allow those kinds of break times to be used for religious purposes instead.
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Rebecca Webber is an employment attorney. You can contact us at 784-3200 (telephone). Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.