Reasonable Accommodation of Religion Under Title VII

A protected religion does not necessarily include a concept of God, a supreme being, or an afterlife. Indeed, atheism can be considered a protected religion. In United States v. Seeger, 380 U. S. 162 (1965), the United States Supreme Court explained that a religious belief is one that 'occupies a place in the life of its possessor parallel to that filled in by the orthodox belief in God.' In Welsh v United States, 398 U. S. 333 (1970), the Supreme Court found that religion includes moral and ethical beliefs that assume the function of a religion. The Equal Employment Opportunity Commission (EEOC) guidelines define a religious practice as an
ethical belief as to what is right or wrong that is sincerely held with the strength of traditional religious views.

In the California Court of Appeal decision, Friedman v. Southern California Permanente Medical Group, 102 Cal. App.4th 39 (2002), the court looked at whether veganism was a protected religion, and found it was not. The court thoroughly reviewed the development of the definition of religion and used a three-part analysis that is followed in the Third, Eighth, Ninth and Tenth Circuits:

1. Are fundamental, ultimate questions addressed having to do with deep imponderable matters?
2. Is the belief system comprehensive, as opposed to an isolated teaching?
3. Are there formal and external signs of the belief system, such as rituals and customs?

Using this analysis, the Friedman court found that veganism does not address the imponderable, nor does it provide a comprehensive system that addresses deep imponderable matters. Accordingly, the court found veganism to be a secular, non-religious, belief.

Courts and the EEOC have been clear in their rulings that religious beliefs need not be generally accepted or practiced to be sincerely held and protected. For example, in Peterson v. Wilmur Communications Inc., 205 F. Supp.2d 1014 (E.D. Wis. 2002), the court held that a religion that seems unethical or even abhorrent to others might be viewed as a religion provided the individual's beliefs function as a religion.

In Peterson, the employee was a follower of 'Creativity,' and a member of the World Church of the Creator, which promotes the degradation of all non-whites, and the survival of the white race 'at all costs.' The court looked at whether Creativity functioned as a religion for the employee and found that it did. The court cautioned, as other courts have found, that organizations with similar beliefs, such as the KKK, are not religions because they are political organizations that do not function as a religion.

While personal preferences and political beliefs are not entitled to religious protections, the courts also have held that those seeking religious accommodation need not prove they are orthodox in their beliefs or that they accept all of the tenets of their religion.

When Must the Employer Provide an Accommodation?

Accommodation of religious beliefs falls into five broad categories: 1) requests for time off or other schedule modifications; 2) refusal or permission to wear particular clothing or accessories; 3) requests to pray or observe rituals at work; 4) refusal to perform duties that conflict with religious beliefs; and 5) expressing religious belief in the workplace. In each instance, the employer will need to be on notice of the need for an accommodation.

Before the duty to accommodate arises, the employer must be on notice that the practice or belief is based on the employee's religion. The employer must also be aware of a conflict between the religious belief and the requirements of the job.

Courts have been divided on the issue of how much information the employer needs in order to be on notice of a need for an accommodation. Most courts have held that employees seeking religious accommodation have a duty to tell the employer specifically of their religious belief and the reason for the accommodation. Other courts have rejected the rigidity of that rule, holding that an employer that generally understands the employee's religious beliefs should try to accommodate them.

It is clear that mere knowledge of an employee's religion, however, does not put the employer on notice that an employee requires a specific accommodation. Chalmers v. Tulon, 101 F.3d 1012 (4^th Cir. 1996). In Chalmers, the employee sent
co-workers offensive letters about their personal lives. While the letters resulted from the employee's religious need to speak out, the court wrote that even where the employer knew of the worker's religious beliefs, that knowledge was not enough to put the employer on notice that the employee needed to send religious letters to co-workers.

In Johnson v. Angelica Uniform Group, Inc., 762 F. 2d 671, 673 (8^th Cir. 1985), the court denied an employee's claim in which she tried to excuse absences by informing the employer after-the-fact of a religious need to be off work. The court found that the employer was not on notice of the need to accommodate.

What Is the Employer's Obligation?

Under Title VII, a religious practice is protected unless an employer demonstrates that it is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without 'undue' hardship on the conduct of the employer's business.

The employer may, and probably should, enter into a discussion with the employee about the request for an accommodation. While it is not likely to be fruitful, the employer may inquire about the sincerity of the religious belief. More practically, the employer can explore the conflict between the religious belief and the work requirement in order to determine whether there is a true conflict, and to customize an accommodation that eliminates that conflict.

An employer is not required to bear more than a de minimus cost to accommodate a religious belief. TransWorld Airlines, Inc. v. Hardison, 432 U.S. 63,84 (1977.) Unfortunately for employers there is no firm dollar value placed on the de minimus cost. Staff shortages that result from time off for religious observance may constitute an undue burden. For example, an undue burden may be shown by the need to hire more expensive temporary workers, or payment at overtime rates to others who must fill in for the absent employee. An inability to fulfill production requirements or meet customer needs is also an undue burden.

Although courts have found the employer's burden of accommodating an employee's religious beliefs may only be minimal, the proof of an undue burden must also be concrete. Employers cannot speculate as to how heavy a burden an accommodation would be to deny an employee's request. Many employers have used surveys and experts to demonstrate how accommodations would hurt employee morale, but courts consistently have held that employers must show actual proof of how a religious accommodation is an undue burden.

An employer's fear of a negative impact on the workplace or operations, no matter how reasonable, is not sufficient to make a religious accommodation an undue burden. Fear that business will be reduced because of an employee's conduct or refusal to carry out duties is not sufficient reason to refuse to accommodate an employee's religious belief or practice. Nor are concerns that other employees will also ask for the accommodation an undue burden.

Many courts have held that the fear an accommodation would make co-workers uncomfortable is not sufficient proof of an undue burden. However, the employer does not have to tolerate a refusal to abide by its policies, or conduct that actually disrupts the workforce. For example, in Ng v. Jacobs Engineering Group, 2006 Cal. App. Unpub. (Cal. Ct. App. Oct. 16, 2006). Ng, an evangelical Christian, repeatedly proselytized her co-workers in the workplace. She used the company e-mail to invite employees to a Christmas party in the workplace that she organized without management's approval. Ng was warned that it was against company policy to use the e-mail or workplace for her religious observance, and she was eventually terminated. In denying Ng's failure to accommodate claim, the court found that the employer did not have a duty to allow Ng to make co-workers uncomfortable or to tolerate violation of its anti-harassment or e-mail policies.

Courts have consistently held an accommodation that would result in a violation of law is an undue burden on employers, relieving them of the need to accommodate. Often, requests to accommodate the employee's dress or grooming will lead to conflict between the religious practice and health and safety concerns. 'Pants only' policies that are justified by safety concerns will likely support a refusal to accommodate. In Skalsi v New York Transit Authority, 62 F. Supp. 2d 745 (E.D.N.Y. 1998), a follower of the Sikh religion contended he could not wear a protective hard hat over his turban. Because of the employer's concerns for the employee's safety and the requirements of the workplace safety laws, the employer did not have a duty to accommodate.

The courts have also made it clear that religious accommodation does not extend to purely personal preferences. The U.S. Court of Appeals for the Eighth Circuit has held that an employee's request to be exempted from his employer's residency requirement so that he could live in a city with an active Jewish community was a personal preference, not a practice required by a sincerely held belief. Vetter v. Farmland Indus. Inc., 120 F.3d 749 (8^th Cir. 1997).

In examining reasonable accommodation, an employer has a duty to begin a dialogue, and the accommodation must resolve the conflict. Although employers must heed accommodation requests, they are not obligated to offer a 'perfect' accommodation, nor do employees get to choose a preferred accommodation. Rodriguez v. Chicago, 156 F.3d 771, 776 (7^th Cir. 1998). The EEOC has issued guidelines indicating that when more than one accommodation is offered to an employee, the employer must offer the alternative that offers the least disadvantages to the worker's employment opportunities.

Practical Advice for the Employer

To avoid guessing whether an employee's conduct is based on a religious belief, or debating the extent of the employer's obligation, employers should consider explaining the employee's right to an accommodation and the employer's obligations to respond in their written policies. Employers should also review their policies to ensure that their policies against harassment and disruptive conduct can be enforced when faced with a request to accommodate disruptive conduct motivated by a religious belief.

When faced with a request for an accommodation, the employer should enter into a dialogue with the employee to understand the conflict between the religious belief and the work requirement. As with any potentially risky personnel decision, the employer may find it advisable to err on the side of determining that the belief at issue is a sincerely held religious belief.

The employer should keep in mind that the accommodation need only eliminate the conflict between the religious belief and the work requirement. The employer does not have to cater to the employee's personal preference. The employer must examine the actual cost of an accommodation, as well as the burden it places on co-workers and the impact it has on business in trying to prove it is an undue burden. Before relying on the undue burden to deny a request , the employer should carefully examine its rationale to ensure it has a specific, concrete basis, not one that could be attacked as speculative.

Shirley O. Lerner, a member of this newsletter's Board of Editors, is a shareholder in the Minneapolis office of Littler Mendelson, PC. She focuses her practice on defending and advising employers.

Title VII addresses two types of religious discrimination: 1) adverse treatment based on religion; and 2) a failure to reasonably accommodate a religious belief or practice. Employers are increasingly faced with the challenge of responding to employee requests to be relieved of work requirements related to religious beliefs and observance. This article provides general background regarding the definition of 'religion' and 'religious belief' in the context of providing a religious accommodation, and an overview of the growing body of case law that deals with the employee's right to seek and the employer's obligation to provide a 'reasonable accommodation.'

What Is a Religion or Religious Belief?

In religious accommodation claims, the employee must prove that he has a sincerely held religious belief that is in conflict with a requirement of his employment. Title VII of the Civil Rights Act of 1964, however, offers little guidance as to what constitutes a religion, stating only, 'The term 'religion' includes all aspects of religious observance and practice, as well as belief … ' 42 U.S.C.A. Sec. 2000e(j). Nor is there any guidance on how the employer is to determine whether the religious belief is sincerely held.

A protected religion does not necessarily include a concept of God, a supreme being, or an afterlife. Indeed, atheism can be considered a protected religion. In United States v. Seeger , 380 U. S. 162 (1965), the United States Supreme Court explained that a religious belief is one that 'occupies a place in the life of its possessor parallel to that filled in by the orthodox belief in God.' In Welsh v United States, 398 U. S. 333 (1970), the Supreme Court found that religion includes moral and ethical beliefs that assume the function of a religion. The Equal Employment Opportunity Commission (EEOC) guidelines define a religious practice as an
ethical belief as to what is right or wrong that is sincerely held with the strength of traditional religious views.

In the California Court of Appeal decision, Friedman v. Southern California Permanente Medical Group , 102 Cal. App.4th 39 (2002), the court looked at whether veganism was a protected religion, and found it was not. The court thoroughly reviewed the development of the definition of religion and used a three-part analysis that is followed in the Third, Eighth, Ninth and Tenth Circuits:

1. Are fundamental, ultimate questions addressed having to do with deep imponderable matters?
2. Is the belief system comprehensive, as opposed to an isolated teaching?
3. Are there formal and external signs of the belief system, such as rituals and customs?

Using this analysis, the Friedman court found that veganism does not address the imponderable, nor does it provide a comprehensive system that addresses deep imponderable matters. Accordingly, the court found veganism to be a secular, non-religious, belief.

Courts and the EEOC have been clear in their rulings that religious beliefs need not be generally accepted or practiced to be sincerely held and protected. For example, in Peterson v. Wilmur Communications Inc . , 205 F. Supp.2d 1014 (E.D. Wis. 2002), the court held that a religion that seems unethical or even abhorrent to others might be viewed as a religion provided the individual's beliefs function as a religion.

In Peterson, the employee was a follower of 'Creativity,' and a member of the World Church of the Creator, which promotes the degradation of all non-whites, and the survival of the white race 'at all costs.' The court looked at whether Creativity functioned as a religion for the employee and found that it did. The court cautioned, as other courts have found, that organizations with similar beliefs, such as the KKK, are not religions because they are political organizations that do not function as a religion.

While personal preferences and political beliefs are not entitled to religious protections, the courts also have held that those seeking religious accommodation need not prove they are orthodox in their beliefs or that they accept all of the tenets of their religion.

When Must the Employer Provide an Accommodation?

Accommodation of religious beliefs falls into five broad categories: 1) requests for time off or other schedule modifications; 2) refusal or permission to wear particular clothing or accessories; 3) requests to pray or observe rituals at work; 4) refusal to perform duties that conflict with religious beliefs; and 5) expressing religious belief in the workplace. In each instance, the employer will need to be on notice of the need for an accommodation.

Before the duty to accommodate arises, the employer must be on notice that the practice or belief is based on the employee's religion. The employer must also be aware of a conflict between the religious belief and the requirements of the job.

Courts have been divided on the issue of how much information the employer needs in order to be on notice of a need for an accommodation. Most courts have held that employees seeking religious accommodation have a duty to tell the employer specifically of their religious belief and the reason for the accommodation. Other courts have rejected the rigidity of that rule, holding that an employer that generally understands the employee's religious beliefs should try to accommodate them.

It is clear that mere knowledge of an employee's religion, however, does not put the employer on notice that an employee requires a specific accommodation. Chalmers v. Tulon, 101 F.3d 1012 (4 th Cir. 1996). In Chalmers, the employee sent
co-workers offensive letters about their personal lives. While the letters resulted from the employee's religious need to speak out, the court wrote that even where the employer knew of the worker's religious beliefs, that knowledge was not enough to put the employer on notice that the employee needed to send religious letters to co-workers.

In Johnson v. Angelica Uniform Group, Inc . , 762 F. 2d 671, 673 (8 th Cir. 1985), the court denied an employee's claim in which she tried to excuse absences by informing the employer after-the-fact of a religious need to be off work. The court found that the employer was not on notice of the need to accommodate.

What Is the Employer's Obligation?

Under Title VII, a religious practice is protected unless an employer demonstrates that it is unable to reasonably accommodate an employee's or prospective employee's religious observance or practice without 'undue' hardship on the conduct of the employer's business.

The employer may, and probably should, enter into a discussion with the employee about the request for an accommodation. While it is not likely to be fruitful, the employer may inquire about the sincerity of the religious belief. More practically, the employer can explore the conflict between the religious belief and the work requirement in order to determine whether there is a true conflict, and to customize an accommodation that eliminates that conflict.

An employer is not required to bear more than a de minimus cost to accommodate a religious belief. TransWorld Airlines, Inc. v. Hardison , 432 U.S. 63,84 (1977.) Unfortunately for employers there is no firm dollar value placed on the de minimus cost. Staff shortages that result from time off for religious observance may constitute an undue burden. For example, an undue burden may be shown by the need to hire more expensive temporary workers, or payment at overtime rates to others who must fill in for the absent employee. An inability to fulfill production requirements or meet customer needs is also an undue burden.

Although courts have found the employer's burden of accommodating an employee's religious beliefs may only be minimal, the proof of an undue burden must also be concrete. Employers cannot speculate as to how heavy a burden an accommodation would be to deny an employee's request. Many employers have used surveys and experts to demonstrate how accommodations would hurt employee morale, but courts consistently have held that employers must show actual proof of how a religious accommodation is an undue burden.

An employer's fear of a negative impact on the workplace or operations, no matter how reasonable, is not sufficient to make a religious accommodation an undue burden. Fear that business will be reduced because of an employee's conduct or refusal to carry out duties is not sufficient reason to refuse to accommodate an employee's religious belief or practice. Nor are concerns that other employees will also ask for the accommodation an undue burden.

Many courts have held that the fear an accommodation would make co-workers uncomfortable is not sufficient proof of an undue burden. However, the employer does not have to tolerate a refusal to abide by its policies, or conduct that actually disrupts the workforce. For example, in Ng v. Jacobs Engineering Group, 2006 Cal. App. Unpub. (Cal. Ct. App. Oct. 16, 2006). Ng, an evangelical Christian, repeatedly proselytized her co-workers in the workplace. She used the company e-mail to invite employees to a Christmas party in the workplace that she organized without management's approval. Ng was warned that it was against company policy to use the e-mail or workplace for her religious observance, and she was eventually terminated. In denying Ng's failure to accommodate claim, the court found that the employer did not have a duty to allow Ng to make co-workers uncomfortable or to tolerate violation of its anti-harassment or e-mail policies.

Courts have consistently held an accommodation that would result in a violation of law is an undue burden on employers, relieving them of the need to accommodate. Often, requests to accommodate the employee's dress or grooming will lead to conflict between the religious practice and health and safety concerns. 'Pants only' policies that are justified by safety concerns will likely support a refusal to accommodate. In Skalsi v New York Transit Authority, 62 F. Supp. 2d 745 (E.D.N.Y. 1998), a follower of the Sikh religion contended he could not wear a protective hard hat over his turban. Because of the employer's concerns for the employee's safety and the requirements of the workplace safety laws, the employer did not have a duty to accommodate.

The courts have also made it clear that religious accommodation does not extend to purely personal preferences. The U.S. Court of Appeals for the Eighth Circuit has held that an employee's request to be exempted from his employer's residency requirement so that he could live in a city with an active Jewish community was a personal preference, not a practice required by a sincerely held belief. Vetter v. Farmland Indus. Inc ., 120 F.3d 749 (8 th Cir. 1997).

In examining reasonable accommodation, an employer has a duty to begin a dialogue, and the accommodation must resolve the conflict. Although employers must heed accommodation requests, they are not obligated to offer a 'perfect' accommodation, nor do employees get to choose a preferred accommodation. Rodriguez v. Chicago , 156 F.3d 771, 776 (7 th Cir. 1998). The EEOC has issued guidelines indicating that when more than one accommodation is offered to an employee, the employer must offer the alternative that offers the least disadvantages to the worker's employment opportunities.

Practical Advice for the Employer

To avoid guessing whether an employee's conduct is based on a religious belief, or debating the extent of the employer's obligation, employers should consider explaining the employee's right to an accommodation and the employer's obligations to respond in their written policies. Employers should also review their policies to ensure that their policies against harassment and disruptive conduct can be enforced when faced with a request to accommodate disruptive conduct motivated by a religious belief.

When faced with a request for an accommodation, the employer should enter into a dialogue with the employee to understand the conflict between the religious belief and the work requirement. As with any potentially risky personnel decision, the employer may find it advisable to err on the side of determining that the belief at issue is a sincerely held religious belief.

The employer should keep in mind that the accommodation need only eliminate the conflict between the religious belief and the work requirement. The employer does not have to cater to the employee's personal preference. The employer must examine the actual cost of an accommodation, as well as the burden it places on co-workers and the impact it has on business in trying to prove it is an undue burden. Before relying on the undue burden to deny a request , the employer should carefully examine its rationale to ensure it has a specific, concrete basis, not one that could be attacked as speculative.

Shirley O. Lerner, a member of this newsletter's Board of Editors, is a shareholder in the Minneapolis office of Littler Mendelson, PC. She focuses her practice on defending and advising employers.