There are few topics that are more sensitive than one’s religious beliefs. By its very nature, one’s adherence to a set of religious beliefs is a highly personal and private issue. Numerous laws such as Title VII specifically prohibit an employer from discriminating against someone based on his religion.
What makes this tough issue even more difficult is it is not uncommon for someone to become religious or change religious beliefs after they have been working for an employer for some time. This can cause friction as the employer, the employee and his coworkers try to adjust to new religious restrictions that the employees may have on his ability to perform his job.
Special treatment
For most areas of employment discrimination law, the best policy is to treat all employees the same. But in the field of religious accommodation, the rule is different. Employees with genuinely held religious beliefs are entitled to special treatment (such as scheduling shifts to allow someone to attend a religious function) so long as such an accommodation does not cause an “undue hardship” to the employer.
In order to make a case for religious discrimination based upon a failure to accommodate, the employee must prove that he has a genuinely held religious belief, that he notified his employer of that belief, and that he requested an accommodation of that belief. After the employee states his case, the burden shifts to the employer to prove that its failure to accommodate his request was necessary because doing so would create an undue hardship.
Over the years there have been several rulings by the Supreme Court that have lessened the duty to reasonably accommodate an employees’ religious beliefs. These cases made an employer’s refusal to accommodate an employee’s exact request easier to defend. In order to be considered “reasonable,” an accommodation for religion must generally impose on an employer no more than a de minimus, or relatively insignificant, cost. And employees are not entitled to the accommodation of their choosing, just a reasonable alternative offered by their employer.
Despite the seemingly low threshold for proving an undue hardship, these cases should not encourage hospitality employers to brush off employees’ requests for religious accommodation. Most medium- to large-size employers can, with little effort and cost, find ways to reorganize employees’ schedules to accommodate the needs of an observant Jew, a devout Christian or a practicing Seventh Day Adventist.
Handling requests for accommodations
As is often the case, the key to handling a request for religious accommodation is to sit down with the employee and discuss the issue in a manner that is respectful of the employee’s religious beliefs. The following tips should help you navigate a request for religious accommodation:
Don’t question the employee’s beliefs.
Courts are reticent to find that an individual’s religious beliefs are phony. Absent extreme circumstances, employers must recognize employees’ beliefs and determine whether the requested accommodation is a possibility. In the most severe cases, doubting an employee’s beliefs can result in an additional claim for religious harassment.
Just saying “no” is a recipe for disaster.
While the law does not mandate that you honor the employee’s most desirable accommodation, a good faith effort to accommodate is required. If you don’t even try to find a reasonable accommodation for an employee, or only do lip service to the employee by ignoring the motivation for the request, don’t expect kind treatment in the courts.
Undue hardships exist, so you’re not powerless.
A common concern among employers facing the religious accommodation issue is dealing with a tidal wave of requests for accommodation for newly religious employees. A restaurant may fear that once employees learn of an exemption for a hostess, the entire kitchen staff may want the same treatment.
But that scenario fairly describes what an undue hardship would be. If all your employees request Fridays off for religious reasons, and the business requires staffing on the weekends, it would be an undue hardship for the restaurant to close business for lack of employees. Depending on the circumstances, the employer could lawfully set up a system of rotating nights off, for example, and require employees to stick to it, rather than closing down the business.
The bottom line
Each request for accommodation based upon religious beliefs will turn on the facts of the specific case. And sometimes even small differences in facts can lead to substantially different outcomes. It’s usually a smart idea to consult with labor or employment counsel before saying “no” to any religious-based request – even one that at first sounds odd.
Clarence Belnavis is a Vancouver resident and partner in the Portland office of Fisher & Phillips LLP, exclusively representing the interests of management in labor and employment matters. He can be reached at cbelnavis@laborlawyers.com or 503-205-8045.
