Rebecca Boartfield and Tim Twigg
When managing employees, a good rule of thumb for employers has always been to treat all employees the same, apply the same rules, and don't treat some employees better or differently than others.
It's a good rule, and it seems fair enough. Adhering to this, you assume, would avoid legal problems, right? Not necessarily. Sometimes, as strange as it sounds, you will be required to treat some employees differently and perhaps more generously than you would other employees. One such example is religion in the workplace.
Religion and the law
The background starts with Title VII of the 1964 Civil Rights Act, which protects people from discrimination on the basis of race, sex, color, national origin, and religion. This means that employers cannot treat employees who may fall into one of the above categories, also known as protected classes, less favorably than other employees not in those groups.
As it relates to religion specifically, the law provides that employers give reasonable accommodation to employees based on "sincerely held" religious beliefs. The reasonable accommodation provision means that an employee might get an exception to a rule of some kind or be treated more favorably than other employees.
Definition of religion
The definition of religion under Title VII is very broad. Specifically, it includes "all aspects of religious observance and practice as well as belief." Religion does not have to include a formal church or sect, it does not have to be subscribed to by a large population of people, and sometimes it may seem illogical or unreasonable to others. A belief is "religious," for Title VII purposes, if it is "religious in the person's own scheme of things."
Reasonable accommodation
Accommodation of a person's religious beliefs will need to occur when the person's religious beliefs or practices conflict with the employer's requirement of that individual. Providing reasonable accommodation is any adjustment to the work environment that will allow the employee to comply with his or her religious beliefs. Thus, accommodation may entail the employer making a special exception to policies or job-related expectations for the religious individual. Accommodating religious beliefs for an employee can encompass three areas of the workplace: the work schedule, job duties, and appearance requirements.
Examples of reasonable accommodation may include:
• Changing scheduled work hours to allow an employee to participate in religious observances
• Modifying dress requirements
• Allowing voluntary substitutes or swaps in staff
• Switching one paid holiday for another
The term "reasonable accommodation" has no straightforward definition. The United States Equal Employment Opportunity Commission (EEOC) has stated that "reasonable" will be determined on a case-by-case basis. Therefore, what is a reasonable accommodation for one employee may not be for another. The ultimate goal must be eliminating the conflict between the employer's practices and the individual's religious beliefs. If this can be done, then it must. Simply reducing the conflict will not be acceptable if another solution provides for complete elimination of the conflict.
Undue hardship
The EEOC allows an employer to deny a request for accommodation if it would result in "undue hardship" to the employer's business. This is a concept not easily defined and certainly not simply applied. When claiming undue hardship, the burden is fully on the shoulders of the employer to justify and prove, if later challenged.
For a religious accommodation to cause undue hardship, it must impose "more than de minimis cost." This determination can only occur on a case-by-case basis and may include such factors as: the type of workplace, the nature of the employee's duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will need a particular accommodation. The employer cannot rely on hypothetical information, only objective, concrete, fact-specific considerations when claiming undue hardship.
Conclusion
If faced with an employee requesting an accommodation or refusing to perform a job duty based on workplace protections, know that you can't ignore it, disregard it, or otherwise take adverse action against him or her, unless you want to subject yourself to liability. Consult with compliance professionals to get the right guidance on how to manage the complexity of religious protections and accommodation. Don't let this blindside you and wreak havoc on your business, which is your most valuable asset.
Tim Twigg is the president of Bent Ericksen & Associates and Rebecca Boartfield is an HR compliance consultant. For more than 30 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with ever-changing and complex labor laws. To receive a complimentary copy of the company's quarterly newsletter or to learn more, call (800) 679-2760 or visit www.bentericksen.com.
