Divine accommodations: Religion in the workplace |
In the 1960s and 1970s, the primary "fights for rights" involved Blacks and women. In the 1980s and 1990s, it was gays and lesbians. Now, the battle lines have been drawn between employers and employees, and the battlefield is religion in the workplace. Employees are suing employers for the freedom to express their religion and to follow their religious practices without interference from employers. The damage awards from such suits doubled from 1992 to 1999. This is not an exposure that is likely to go away, nor a fight employers are likely to win. Recommendations to help employers protect themselves from claims of religious discrimination are presented.
In the 1960s and 1970s, the primary "fights for rights" involved Blacks and women. In the 1980s and 1990s, it was gays and lesbians. Now, the battle lines have been drawn between employers and employees, and the battlefield is religion in the workplace.
Employees are suing employers for the freedom to express their religion and to follow their religious practices without interference from employers. The damage awards from such suits doubled from 1992 to 1999. This is not an exposure that is likely to go away, nor a fight employers are likely to win.
The increase in claims concerning religious accommodation in the workplace is being fueled by at least four trends:
Religious devotion in the United States is on the increase. A Gallup poll conducted for the Princeton Religion Research Center found that 95 percent of Americans believe in God or a "universal spirit" and 90 percent say religion is very important or fairly important in their lives.
Religious diversity in the United States is on the increase. Currently, there are over fifteen hundred primary religious organizations in the United States, including over nine hundred Christian denominations, over one hundred Hindu denominations, and over seventy-five Buddhist denominations.
As a new movement toward spirituality grows, a spotlight seems to be shining on traditional religion. "Religion and spirituality can be and often are different, especially as they are perceived in the workplace," notes Dr. Ian Mitroff, the Harold Quinton distinguished professor of business policy at the University of Southern California (Los Angeles) and co-author of A Spiritual Audit of Corporate America (Jossey-Bass, 1999). "Religion in the workplace is usually viewed as a sensitive, dangerous and touchy subject. In addition, many employees view religion as divisive, exclusive and somewhat intolerant, leading to the potential for conflict within the workplace."
Employees in general are becoming more aware of their rights in the workplace and are much more prone to file suits if they feel these rights are being violated. "Charges of almost all forms of discrimination have been increasing as employees become more aware of their rights," explains Michael Wolf, a Washington, D.C.based attorney and arbitrator, and coauthor of Religion in the Workplace: A Comprehensive Guide to Legal Rights and Responsibilities (American Bar Association, 1998).
As a result of these trends, charges of religious discrimination filed with the Equal Employment Opportunity Commission (EEOC) have shot up from under fourteen hundred in 1992 to over eighteen hundred in 1999. In 1992, there were 227 EEOC merit resolutions. There were 386 in 1999. Monetary benefits awarded as a result of EEOC claims (not including private litigation) totaled $1.4 million in 1992 and doubled to $3.1 million in 1999.
In addition, there are bills currently under consideration in the Senate and the House of Representatives that would strengthen the language in current legislation (Title VII of the 1964 Civil Rights Act) as it applies to the responsibilities of employers to provide religious accommodations in the workplace (see sidebar). Such language could further increase the number of legal actions against employers.
The current climate can expose employers to concerns in at least three areas: Determining religious accommodation, defining religious freedom of speech in the workplace and managing a religious-based company. Determining Religious Accommodation. Here, the issue is whether employers are refusing to provide legally guaranteed religious accommodations to employees in the workplace. A legal action against Sears Roebuck provides a good example. When Sears refused to hire Kalman Katz, an Orthodox Jew, as a repair technician in New York because his religion prohibited him from working on Saturdays, he contacted the state's attorney general's office. An investigation found that Sears had refused to hire other Orthodox Jews for similar reasons and fired one repair technician who had become a Seventh-Day Adventist and could not work on Saturdays.
The attorney general cited a state law that requires employers to provide accommodations for employees for religious reasons. New York's law is currently stronger than federal (Title VII) law, but new bills before Congress could put federal law on par with New York. Sears claimed that Saturday is their busiest day for repair technicians, so employees who could work on Saturdays were essential.
As part of the agreement reached by both parties, Sears has begun an eighteen-month trial program (March 2000 to September 2001) offering Sunday repair service to its customers in New York. "This will allow technicians who are unable to work on Saturdays due to Sabbath obligations to work on Sundays," explains Peggy Palter, a spokesperson for Sears in Hoffman Estates, Illinois. "This issue is limited to our New York state inhome repair service business. It is not an issue with our stores."
The agreement required Sears to provide back pay and offer jobs to the complainants, pay their legal fees, pay the attorney general's office $100,000 for the cost of investigation, pay $225,000 to the American Law Institute to create educational materials and programs on religious accommodation and provide $120,000 in scholarships for other Sabbath observers to attend schools that teach technical repair.
Defining Religious Freedom of Speech in the Workplace. A second area of concern is how much freedom employees have to express their religious beliefs in the workplace. Apache Corporation, a Houston-based energy company, was forced to address this issue.
At Apache, a dozen employees received management permission to conduct lunchtime Bible study and prayer sessions. The company provided a room for the sessions. However, when the group began using the company's e-mail system to invite other employees to join the sessions, Apache stopped the solicitations. Apache was able to stop the e-mails by citing its comprehensive "no solicitation" policy on company time, premises or media (e-mail, bulletin boards). "Our no solicitation policy includes everything from religion to selling Girl Scout cookies," explains Dan Schaeffer, vice president of human resources. "Employees are still free to use conference rooms for religious reasons, as long as they don't solicit others. We emphasize to employees that we are here to engage in business."
Francis Manion, an attorney with the American Center for Law and Justice in New Hope, Kentucky, says a policy like Apache's works because it is uniformly enforced. "Private companies have broad rights in limiting what employees can and cannot say, especially to customers," he explains. "If a company has one standard for the expression of religious beliefs and a different standard for the expression of other beliefs, such as political, philosophical, social or economic, then there may be grounds for a religious discrimination case."
Managing a Religious-Based Company. Certainly, religious organizations are free to limit hiring to individuals of their own religion, to hold religious services on the premises, and to engage in other religious practices. The situation can get challenging when owners of nonreligious businesses who are devoutly religious attempt to introduce their religious beliefs and practices into the workplace.
"Some people may find it difficult to get jobs in these companies if they are not members of the owners' religions," comments Mitroff. "Others who are hired may find themselves ostracized by managers and coworkers, not getting promoted, or failing to receive the cooperation they need to get their work done." Still others may feel forced to participate in religious-based activities that the company might sponsor, such as morning prayer sessions.
Legal Rights and Responsiblities
The primary statute determining employer and employee rights related to religious freedom is Title VII of the 1964 Civil Rights Act. It says that if an employee has a "sincerely held" religious belief, the employer is required to provide a "reasonable accommodation" to that employee upon request, unless doing so would impose an "undue hardship" on the employer.
An employee's belief is not considered sincerely held if the employee acts in a manner inconsistent with his or her religious tenets, or if there is other evidence that the employee is using a religious doctrine simply as an excuse to disguise purely secular interests (e.g., asking for a religious holiday to spend the day playing golf).
"Employers must tread very gingerly here," cautions Wolf. "Courts have been very reluctant to second-guess an employee's claim of practicing a religion." In New York City, for instance, some Hispanic Catholics asked their employer to get Good Friday off. The employer contacted the Catholic diocese, which explained that the church did not require the employees' request. However, the EEOC sided with the employees, explaining that it was not the Federal government's business to define religious practices.
"Unless you have real proof to the contrary, such as hiring private detectives to follow employees around on the days they request off for religious reasons, you're not going to win in court," adds Wolf.
The second element addressed in the Act, reasonable accommodations, is harder to define. Information can be gleaned from the EEOC's "Guidelines on Discrimination Because of Religion" as well as court cases over the years. Examples include substituting or swapping shifts for employees who request time off for religious reasons, providing flexible scheduling, offering lateral transfers to other departments and allowing employees to wear religious garments.
Employers have been held liable for failing to provide reasonable accommodations when employees have testified that they would have been available to switch, but their employers did not allow them to do so. Employers have also been held liable for refusing to allow employees to post notices on bulletin boards or otherwise make inquiries into securing voluntary replacements.
The concept of undue hardship, as it relates to religious freedom in the workplace, has been very controversial and is likely to become even more so in the future if the Workplace Religious Freedom Act passes. Title VII did not define or clarify undue hardship, so the definition had been left to the courts. In 1977, the U.S. Supreme Court said that any accommodation imposing more than a "de minimis" (very minor) expense on the employer is considered an undue hardship (TWA v. Hardison). Undue hardship involves things like: reduced productivity, significant costs, an endangerment to workplace safety, or something that causes other employees to suffer.
For example, an infrequent or temporary payment of overtime or premium wages for substitute employees is considered "de minimis" and would be required. However, if such payments involve a small business or a company that has high operating costs, and if such payments were expected to take place on a regular basis, the accommodation would be considered an undue hardship on the employer.
Another example would be allowing employees to wear head coverings, robes, beards, long hair, face paints, religious insignias or symbols for religious reasons, even if these deviate from the employer's dress code or differ from coworkers expectations. If such items pose safety hazards (employees are working around machinery where robes could become entangled), an employer would have the right to ban them if installing guards to prevent potential entanglement would involve substantial expense.
For many employers, the most difficult challenge to undue hardship relates to union seniority agreements. What if a union employee with little seniority claims that, for religious reasons, he or she needs Saturdays or Sundays off, days that are typically reserved for employees with more seniority?
"Forcing an employer to violate a collective bargaining agreement with a union is considered an undue hardship," explains Wolf. "If an employee makes a request that would require violation of such an agreement, the employer is not required to honor that request."
Well, maybe or maybe not. "Some courts have said that employers are at least required to speak to their unions to see if there would be a means of accommodating the employee without violating the contract," continues Wolf. "Is there an employee who would be voluntarily willing to forego his or her seniority rights and swap shifts with the requesting employee? Some courts have said that an employer's failure to at least ask unions these types of questions place them in violation of Title VII."
In light of current litigation and the requirements of the law, what should you do to protect yourself from claims of religious discrimination? There are several steps you can take:
1. Respect the religious beliefs of your employees, and avoid judging them, even though they may disagree with your own beliefs. A survey conducted by the Society of Human Resource Management in 1997 found that only 19 percent of companies included religion in their diversity training programs, and only 18 percent trained their managers in the issues associated with religious accommodation.
2. When employees come to you with requests for religious accommodation, emphasize that you will make reasonable efforts to accommodate their requests, but that your primary concern is achieving your business objectives.
3. There are several options you can explore with respect to requests for time off for religious reasons:
Offer flexible arrival and departure times, such as exchanging lunch times. Grant floating "personal days."
Help employees find substitute or replacement workers.
Offer lateral job position transfers.
4. If you are not sure that a specific accommodation will work in terms of cost or hardship, consider a trial period for a month. This will provide you with real cost information and will show good faith in the event a case is taken to the EEOC or private litigation.
5. Be sure to treat everyone the same when it comes to freedom of speech in the workplace. For example, if you refuse to allow a workplace religious group to post notices on a bulletin board, then no other group (including the employee softball team) can be allowed to post notices.
Consider going the extra mile to accommodate religious beliefs and practices. (See the "Intel" sidebar.) At the very least, become more cognizant of religious freedom in the workplace.
"Employers tend not to see a lot of religion cases," notes Wolf. "They are attuned to sexual harassment and ADA cases, so when religious cases come up, they often fail to treat them seriously. Because some of the requests for accommodation may sound bizarre, there is a tendency to Slough them off." That is dangerous, according to Wolf. "The best way to avoid litigation is to take all requests seriously."
Copyright Risk Management Society Publishing, Inc. Oct 2000