When Faith and Work Clash
TERESA GEORGE was employed as the only greeter on her shift in the kitchen and bath department of a Home Depot store in Harahan, Louisiana. The job of the greeter is to talk to customers visiting the department and schedule appointments with the store’s designers. George’s job often required that she work Sunday hours because the store was busiest on the weekends. In August 1997, after working for the company for a year, George told her manager that her religion precluded her from working at all on Sundays.
Management pointed out that George had not made this request at the beginning of her employment and that it would be difficult to accommodate her because they had no other employees qualified to do her job.
George said nothing to her managers, but after her announcement, she took the next Sunday off. She told management that she needed to go out of town and then called in sick the following Sunday. George’s manager met with her to discuss the issue, which the manager perceived as simply being a case of finding a way for George to attend mass on Sunday, rather than having the entire day off. The manager suggested that George work before or after attending mass on Sunday. She said that she could not work at all on Sundays, because it should be a day of rest. She was fired.
George sued Home Depot for religious discrimination. The district court found that Home Depot had offered George reasonable accommodation and that her request would be an undue hardship on the company. George appealed the decision.
The U.S. Court of Appeals for the Fifth Circuit found in favor of Home Depot (George v. Home Depot, U.S. Court of Appeals for the Fifth Circuit, 2002). Allowing George every Sunday off would result in undue hardship to the company because she was the only greeter in the department. To accommodate her, the company would have to hire an additional employee or have another employee work extra hours to be the greeter on Sundays.
The court found that Home Depot could establish that this would be an undue hardship without quantifying the actual costs of having someone fill in. The court found that the company had a business loss due to the greeter’s absence and found that requiring another employee to assume a disproportionate workload to accommodate a coworker was an undue hardship as a matter of law.
Religious diversity and the desire for vocal religious expression are both more prevalent in today’s work force than they have been in the past. Given those factors, it is increasingly important for companies to understand what the law says about individual rights and religious expression on the job.
The First Amendment to the United States Constitution guarantees that citizens are free to practice their religion without interference from the state or national government, and it allows expression of religious beliefs in the public square, but the language of the amendment does not directly address religion in the workplace. Not until Title VII of the Civil Rights Act was passed in 1964 was there statutory language that gave courts guidance on a person’s right to be free from religious discrimination and to have reasonable accommodation of one’s religious beliefs and practices at work.
Congress in crafting the law and the courts in interpreting it have taken into account the pragmatic character of the American workplace. Thus, religious accommodation is limited to those actions that do not create an undue hardship on the employer or other employees.
The basic premise from which managers should operate is this: Employees are entitled to a “workplace free of religious harassment,” according to the antidiscrimination laws. By the same token, as the case highlighted illustrates, there are limits to what a company is expected to do to accommodate employees when their religious practices would interfere with business operations or the requirements of the job.
Religious discrimination charges get filed with the Equal Employment Opportunity Commission (EEOC). Looking at those statistics, it is clear that such claims make up only a small percentage of the total number of discrimination charges, including sex, age, race, national origin, color, and disability claims. But over the last ten years, claims of religious discrimination have been increasing dramatically.
Charges filed with the EEOC have risen from 1,449 in 1993 to a peak of 2,572 in 2002, although the numbers have dropped back slightly in 2004 to 2,466. The 9-11 attacks, carried out by the radical Muslim group al Qaeda, also led to a rise in discrimination claims by followers of Islam in the U.S. Since then, the EEOC has placed special emphasis on investigating categories related to Islamic beliefs or national origin.
Because Muslims need time and space to pray during the workday, they are more likely to have to ask for accommodation in the workplace than a person whose religion does not demand formal prayer during work hours. But other sects have also begun to make demands for religious-activity accommodation at work. Increasingly, a broad spectrum of religious groups are asking their employers for accommodations such as lunchtime prayer groups, religious studies, and company-provided chaplain services.
Religious activities in the workplace are lawful as long as they are voluntary, open, and noncoercive. When the culture becomes coercive, results in harassment, or affects employment opportunities, then religious discrimination has occurred.
For example, in September the EEOC sued an operator of gas stations and convenience stores who provided a chaplain for employees, because when a Jewish employee declined the chaplain service, the company president sent a coworker to ask why.
The employee was also regularly subjected to company e-mail that contained religious messages. Just before she went on vacation she requested that she not be included on the mailing.
After returning to work, the employee was told by her supervisor that “things are not working out,” and she was fired. In announcing the lawsuit, the EEOC regional attorney noted that workplace religious activities are not unlawful and that “employers must reasonably accommodate the religious beliefs of their employees and employers may themselves endorse and make available, on a wholly voluntary basis, religious services and practices. What employers cannot do is force any particular religious creed or practice upon their employees.”
Though no one can be totally prohibited from expressing his or her faith to coworkers in the workplace, there are limits to that expression, which are based on antiharassment standards. The expression must not be unwelcome to the recipient, but the recipient is not required to speak up at the time of the expression to have a claim of harassment later. Therefore, employees must be sensitive in gauging whether religious expression is appropriate.
Reasonableness. Any religious expression at work must also not be made in a manner that would be offensive to a “reasonable person.” The reasonable person standard protects employees and employers from complaints from coworkers who are unusually sensitive. In addition, religious expression must not be severe or pervasive enough to adversely affect the recipient’s working environment.
The term “faith-friendly companies” has arisen recently to describe businesses that create environments that encourage employees to participate in religious activities and feel free to talk about their religious beliefs. These companies must simultaneously strive to have effective and well-enforced antiharassment policies and practices if they are to avoid subjecting themselves to charges of harassment and discrimination.
At a minimum, all employers should have a comprehensive written policy that explicitly prohibits religious harassment and discrimination and encourages staff who feel harassed to make complaints.
The policy should outline how complaints will be investigated. The company must then ensure that it trains managers in how to recognize signs of harassment and how to respond to allegations.
It is equally important to make sure that employees are aware of the policy. A company may do this as part of an overall policy against discriminatory behavior, which may include prohibitions on other forms of harassment as well.
Employers must not only refrain from discrimination, but they must also take action to receive, review, and address requests for religious accommodation.
In the past, religious accommodation cases were dominated by requests to take leave from the workplace for religious observances. More common today are cases dealing with dress codes and religious speech and religious practices inside the workplace.
Undue hardship. Each accommodation request must be analyzed and considered according to the standard of whether it causes undue hardship to the employer. Unless the company can show “undue hardship,” it will generally be required to allow the request.
This may sound as though the worker is likely to prevail. In practice, however, the undue hardship standard favors the company.
The U.S. Supreme Court set the standard for what constitutes an undue hardship to the employer in Trans World Airlines v. Hardison (1977). That case established that determining an undue hardship depends on the facts and circumstances of each case, and boils down to whether the employer acted reasonably. Undue hardship may be established if the employer would be required to spend even a minimal amount of money to accommodate the request.
Coworkers. The courts have also said that undue hardship exists when coworkers themselves, not just the company, are adversely affected by having their work schedules detrimentally altered or their workloads significantly increased. For example, if any employer has to build an expensive apparatus, change the production process in a manner that significantly affects efficiency, allow employees to be absent during assembly-line work (thereby affecting the quality of the finished product or the demands on the remaining workers), or allow the employee to be the only one able to avoid weekend work, it is likely that undue hardship could be established, and the employer would not be required to accommodate the request.
For example, in one case (Bruff v. North Mississippi Health Services, U.S. Court of Appeals for the Fifth Circuit, 2001), Sandra Bruff, a counselor who worked for an employee assistance program, refused to counsel a homosexual woman on her relationship with her partner. Bruff said that the client’s homosexuality conflicted with her Christian religious beliefs.
The client complained to her employer, who in turn complained to Bruff’s clinic. Upon request, Bruff submitted a memo detailing what counseling duties she wanted to be excused from. Bruff indicated that she did not want to counsel homosexual or unmarried people on their relationships.
Company managers met several times to determine whether they could accommodate Bruff’s request by shifting responsibilities among the three counselors. Managers determined that this was not feasible, because other workers already had full work schedules. Bruff was relieved of her counseling responsibility and put on leave without pay.
Bruff appealed the decision to the vice president of the company. The vice president offered to transfer Bruff to a section of the company specifically tasked with performing Christian counseling. Bruff declined, saying that the director of that section held Christian views that were too liberal. After several months and numerous meetings, Bruff was fired.
She sued her employer for religious discrimination. A jury found in her favor and she was awarded $300,000 in damages. The company appealed the decision.
The appellate court overturned the jury verdict, finding that the company’s attempt to accommodate Bruff had been sufficient and that further accommodation would be a hardship on her coworkers. Further, the court noted that Bruff knew of her job duties before she accepted the position.
She did not discuss her needs with her employer but, according to the written opinion of the case, “apparently assumed that she would only have to perform those aspects of the position that she found acceptable.” The court found that employers are not required to accommodate such inflexible positions.
Inconvenience. The courts have ruled that forcing an employee to deal with a mere inconvenience in trying to meet religious requirements is not sufficient grounds for a discrimination claim. For example, in Dachman v. Shalala (U.S. Court of Appeals for the Fourth Circuit), a Jewish employee, Rebecca Dachman, requested that she be allowed to leave early on Friday to observe the Sabbath. Her employer agreed and granted two hours leave on Friday afternoon.
Dachman insisted that this was insufficient time to pick up special bread for her Sabbath meal. Dachman was fired from her job for performance issues.
She sued her employer, claiming that she was fired for requesting time off for religious reasons, namely time off to pick up her bread on Friday afternoon. The court found that Dachman was properly fired for well-documented performance issues, so she had no basis for a religious discrimination claim.
The court ruled that an employer need not accommodate every religion-based request that an employee makes and does not have a duty to accommodate an employee’s mere preferences. In this case, the court noted that the bread was on sale Thursday night and that Dachman had a choice in how to meet her religious needs and could do so without seeking accommodation from her employer.
Courts have also emphasized an employee’s responsibility in making religious accommodation requests. First, the employee must demonstrate that there is a conflict between a work requirement and a religious requirement.
If the conflict can be removed by the employer, that is a complete accommodation, regardless of the employee’s preference for a different accommodation. This is really just another way of saying that employees can’t sue just because they feel inconvenienced.
For example, if the afternoon shift schedule interferes with prayers or a religious service, and the employee asks for time off, a complete accommodation proposed by the employer could be to move the worker to the later shift. If the pay and opportunities are equal, it is a complete accommodation.
If the employee does not accept this option, the employer is still protected in case of a lawsuit. As long as the accommodation removes the conflict between religious duties and work, the employer does not have to offer the employee’s preferred accommodation.
Beyond the law. Many employers are willing to go a bit further than the law might demand in making allowances for religious observance. However, they must be careful not to accord this extra allowance to only one religion or group.
If, for example, an employer grants Somalian immigrants prayer breaks during the day, regardless of the effect on production, then the company must handle any other request for prayer breaks in a similar manner. The next group that asks may have a discrimination claim if it is not accommodated to the same level.
Working together. Recent decisions have emphasized that the accommodation discussion requires bilateral cooperation. Both employer and employee must address and discuss the possible solutions that would erase the conflict between work and religious duties.
The bilateral cooperation expectation is designed to help the parties find some middle ground. But if no solution can be found that would not cause undue hardship, no accommodation is required.
A frequent issue in any business that requires employees to wear uniforms is whether an employee must comply if the uniform does not allow head coverings, facial hair, piercings, tattoos, or similar adornments, which may be based on religious practices.
Companies would be better prepared for these requests if they considered religious practices when adopting uniform standards, but this is rarely done.
When such a request arises, companies must consider the accommodation if it is based on religious requirements, not personal preferences. These cases are subject to the same undue hardship limitation as any other religious accommodation.
For example, in one case (Cloutier v. Costco, U.S. Court of Appeals for the First Circuit, 2004), the plaintiff contended that her various body piercings were required due to her membership in the Church of Body Modification. The court ducked the issue of whether this group was in fact a religion. However, the court ruled for Costco, saying that relaxing the company’s no-piercing policy would be a hardship in that it was likely to have a negative effect on customer relations, and the employee need not be accommodated.
Employers must, of course, make sure that any uniform policy is, indeed, uniform. If enforcement is lax, employees denied the right to wear special religious accoutrements may interpret the employer’s refusal of an accommodation request as religious discrimination.
If uniform standards vary by customer location, the employer should consider whether the request may be addressed by a transfer to another location where uniform standards are more relaxed or nonexistent. If a transfer removes the conflict between the religious requirement and the uniform, it is a valid accommodation regardless of whether the employee requested the transfer.
But the transfer offer must be reasonable. A valid accommodation would be to offer a transfer within a metro area or within a short distance. Telling someone living in Cincinnati that you can accommodate them only if they are willing to live in Louisiana would not be considered a valid accommodation.
In situations where a company, such as a guard service provider, supplies personnel to various posts, it is advisable to have post orders describing the uniform that will be required. Having the dress code in writing provides a basis for the company’s standards on that site.
Although it has long been established by the courts that mere customer preference does not excuse race and other types of discrimination, no court has ruled that a company must endure the loss of a contract due to a failure to meet uniform requirements. That would suggest that religious exceptions that run counter to the dress code the client wants might create an undue hardship. However, if the post orders or other written policies are routinely ignored or abridged until the religious believer comes along and asks for an exception, those orders cannot form the basis for a valid denial of the request.
If the uniform applies to all locations or a lateral transfer is not available, then the company will have to consider adjusting the requirements for the individual employee. This analysis must take into account the customer and company concerns, but if the customer has not previously mandated uniform standards, the company’s imposition of them may be questioned.
Dress codes may be driven by more than aesthetics; factors such as safety may also come into play. For example, courts have recognized the need for women working near machinery and in correctional facilities to wear pants rather than a long skirt or dress. Thus, safety concerns may trump religious ones in those circumstances. The same would apply to protective gear.
In one case (Birdi v. United Airlines, Corp., U.S. District Court for the Northern District of Illinois, 2002), a Sikh employee insisted on wearing his turban, which was inconsistent with the company dress code. The company refused even though he did not have face-to-face contact with the public. The company proposed six different alternative positions to him, but he contended that each position was inadequate accommodation. The court determined that the company had offered reasonable accommodation.
Another Sikh employee, Charan Singh Kasli, sued the New York City Transit Authority for religious discrimination because he was fired for failing to wear a hard hat (Kasli v. New York City Transit Authority, U.S. District Court for the Eastern District of New York, 1999). He refused to put the hard hat on over his turban, as the company suggested.
After reviewing the need for protective hard hats in carrying out the duties of the position, the court ruled for the employer, stating that Kasli failed to present facts suggesting that his termination was motivated by religious animus. The court found that accommodating the employee would mean compromising workplace safety and was, thus, an undue hardship.
Where safety is not an issue, no clear precedent helps employers to understand when they must grant accommodations of head coverings. Although a number of cases involve employees with head coverings, these cases do not offer definitive guidance because they were decided on other legal grounds and did not address the specific legality of head covers.
In one case (Ali v. Alamo Rent-A-Car, U.S. Court of Appeals for the Fourth Circuit, 2001), a woman made a request to wear a headscarf, but the court decided the case on grounds unrelated to religious discrimination and held that transferring her to a position that did not have contact with the public was not an adverse action. However, the court also noted that the employer was not necessarily required to accommodate the employee’s religiously mandated garb. In this case, the court signaled that not all religious clothing must be accommodated.
On the other side of the issue, a recent case declared that a woman who was disciplined because she wore her Muslim garb at work had established a case for discrimination (Davis v. Mothers Work, Inc., U.S. District Court for the Eastern District of Pennsylvania, 2005).
Betty Davis worked at a clothing store, Mothers Work, Inc. Shortly after starting work, she converted to Islam and began wearing Islamic overgarments, a full-length robe, and head scarf. This conflicted with the employee dress code policy, which also provided that the store management should contact human resources about any religious issues that arose out of the policy.
Davis claimed that she was ordered to go home and remove her outfit because it was inconsistent with the policy. She explained the reason for her dress and sued the company for religious discrimination.
The company requested summary judgment—a hearing based on the facts of a case without a trial. In the lawsuit, the store manager disputed Davis’s version of the events. The manager said that she told Davis to leave the store while she contacted HR, and Davis never told her she was a Muslim. The manager testified that she believed the overgarments were a Mormon outfit.
The court refused to grant summary judgment, allowing Davis to pursue her religious discrimination claim. The court noted that Davis had presented substantial evidence that she was treated differently because of her religious attire. Examples include requiring her to change out of the religious overgarments on one occasion, changing her work schedule on other occasions, watching her more closely than other employees, and making remarks about her religious garb.
Further, the manager’s rather surprising claim that she thought Davis was a Mormon, not a Muslim, did not absolve the company of culpability. Either way, she was treating Davis differently based on her religion.
It is possible to establish, in some situations, that religious dress is not appropriate and accommodation is not required. As noted earlier, that might be the case if a situation involved safety or security issues.
On the other hand, mere dislike, distaste, or “customer preference” without a valid basis may not be sufficient to deny accommodation. Each situation must be reviewed, taking into account the employee’s and the company’s concerns.
Security professionals and other managers will continue to face religious accommodation and discrimination issues as the population becomes more diverse. They must be prepared.
Good antiharassment and accommodation policies, clear standards of dress and behavior, an understanding of how to patiently work through accommodation requests, and a willingness to discuss these matters directly with employees are the keys to success in protecting your company from liability arising out of religious discrimination and harassment claims.
Dudley Rochelle is an employment defense lawyer, specializing in religious discrimination and harassment, with the national employment law firm, Littler Mendelson, P.C., in the firm’s Atlanta office.