Religious Accommodations under Title VII
Religious accommodations are becoming an increasingly important area of interest for Employers. Workplaces are now comprised of employees with more diverse expressions of faith, beliefs and traditions. A 2012 Gallup poll of a random sample of over 300,000 adults nationwide found that 69% of people in the United States consider themselves to be “very” or “moderately” religious. Due to this rise in religious observation, religious discrimination claims against Employers are rising as well.
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e, specifically states that:
It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Title VII provides that the term “religion” includes all aspects of religious observance, practice and belief. 42 U.S.C. §2000e(j). Therefore, unless the employer shows it cannot reasonably accommodate the employee’s practice without undue hardship on the conduct of the business, the employer must accommodate an employee based on religion. Id. The Supreme Court has defined “undue hardship” as anything requiring more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977). The Third Circuit has consistently held that although there is no undue hardship test, it is not a difficult threshold to pass. Webb v. City of Philadelphia, 562 F.3d 256, 260 (3d Cir. 2009). How does that translate to actual cases?
For guidance, the Third Circuit in EEOC v. The Geo Group, 616 F.3d 265 (3d Cir. 2010), held that the Employer’s refusal to allow an employee to wear a khimar was not discriminatory under Title VII. The Court held that the khimar could be used to smuggle weapons and contraband to attack prison employees. Such accommodation would pose an undue hardship on the Employer.
In Finniee v. Mississippi, 907 F. Supp. 2d 750 (N.D. Miss. 2012), the Court upheld a termination of a Pentecostal detention office who would not wear pants to work because of her faith. The Court held that making an exception to the “pants-only” policy wold pose risks to the safety and security of others. The Court found an undue hardship existed in this case as well. These are real-life examples of how Courts decide what is an “undue hardship” under Title VII.
Suppose there is no undue hardship and the Employer engages in the interactive process of accommodation. How far does an Employer have to go? What is considered a reasonable religious accommodation under Title VII? The EEOC has issued some guidance on this topic. The EEOC suggests possible work schedule accommodations such as: (1) flexible scheduling and leave, (2) voluntary shift substitutions or swaps, (3) alternative work schedules, (4) “floating” holidays, (5) job reassignment and lateral transfers or (6) modified workplace policies or practices. These are a few examples of how to accommodate employees who cannot work a specific shift due to religious observations.
It is important to note that if the Employer does not engage in the interactive process of accommodation, it could lead to severe consequences. In 2011 a California Court ordered Supercuts to pay $43,500 to a hair stylist who was fired for refusing to work on Sundays, the Christian Sabbath. In March 2011, a North Carolina Court ordered Belk Inc. to pay a Jehovah’s Witness $55,000 who refused to wear a Santa hat and apron and was terminated for such. Religious discrimination is on the rise and Employers should be cautious in accommodating all religious beliefs and observations or else they could pay a hefty cost.