Can’t We All Just Get Along: Most Religious Accommodations Are Not Unduly Costly
Religious discrimination, I posted last September, was formerly a backwater of employment discrimination law, but has shot to the forefront in recent years.
“Public policy and the expansion of the reach of Title VII meet claims of religious discrimination. The political/legal struggles will likely take a while to resolve, if at all. But one thing is certain: the EEOC has decidedly not abandoned its efforts to pursue claims of employment discrimination based upon religion.”
A new case is worth looking at.
I had noticed an EEOC suit filed in August 2015 that rivals the EEOC’s let’s-sue-medical-folks–for-ADA-violations penchant. This time the suit was based upon religious discrimination under Title VII, which can be likened to the ADA in that an employer must accommodate religious beliefs or practices if that can be done without undue burden.
The EEOC claimed that a bookkeeper was told that he had to work Saturdays. Being a Hebrew Pentecostal, who cannot work from sunset Friday to sunset Saturday, he asked instead to be permitted the accommodation of working Sundays or late on week nights other than Fridays. He was fired.
Takeaway then: An EEOC attorney said then that “Most religious accommodations are not unduly costly, such as allowing an employee to switch his schedule to observe his Sabbath. No employee should be forced to choose between earning a living and following the dictates of his faith.”
This last quote that “most religious accommodations are not unduly costly” is particularly relevant to a new suit filed by the EEOC.
The Complaint alleges that a Massachusetts medical center (what else?) refused to accommodate, or even try to accommodate, an HR employee who refused an annual flu shot based upon her religious convictions. No, she wasn’t fired for that – the employer permits a religious exemption to this requirement if the employee wears a face mask covering the nose and mouth. So what’s the prob?
When the employee was told by job applicants that she could not be heard while wearing the mask, she took it off.
She asked her employer “to work with her to find an alternative accommodation that would permit her to honor her religious beliefs while effectively performing her job.”
Question 1: Sounds like a request for an interactive discussion to determine if there is an appropriate accommodation, right?
Despite her request that her employer “work with her,” she was placed on indefinite, unpaid leave, and when she made a complaint about this “and sought an alternative accommodation to the policy” she was fired. Oh. Got it.
Question 2: Sounds like retaliation, right?
If you answered “yes” to both of these two questions, congratulations! You agree with the EEOC (is this the first time?) which just filed suit.
Said an EEOC attorney as to question 1: “Federal law requires employers to fairly balance an employee’s right to practice his or her religion and the operation of the business. For an accommodation to be meaningful under Title VII, it both must respect the employee’s religious beliefs and permit her to do her job effectively.”
Said another EEOC attorney as to question 2: “Employees have the right to oppose conduct they reasonably believe violates the law, without fear of retaliation. A decision to end the employment relationship – either through termination or forced resignation – because the employee has complained about religious discrimination runs afoul of the statute’s clear requirements.”
A Few Prior Cases
These cases are not aberrations — I wrote in my previous blog back in 2013 about a number of “failure to accommodate” religious discrimination cases involving Evangelical Christians, Seventh Day Adventists and Pentecostals.
And last September I published a post about a substantial verdict in an EEOC case which alleged that a Pennsylvania coal company refused to accommodate (and forced to retire) a long time Evangelical Christian employee who refused to submit to a biometric hand scanner to track employee time and attendance. She claimed that there was a “relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.” The key here was a readily available and non-burdensome accommodation to tack her time.
The EEOC General Counsel said that “This victory underscores two important American values: religious freedom and inclusiveness.”
And another EEOC official stated that “Many times when there is a conflict between an employee’s religious beliefs and a work rule, there are easy modifications to company policy permitting an employee to continue to work without violating his religious beliefs.”
Let’s reprint the quote from the EEOC attorney, above: “Many times when there is a conflict between an employee’s religious beliefs and a work rule, there are easy modifications to company policy permitting an employee to continue to work without violating his religious beliefs.”
Let’s add to that the requirement that an employer must engage the employee in that famous “interactive process” to determine if there exists an accommodation (or “alternative accommodation,” in this new case) that is not unduly burdensome.
Postscript: Earlier, I had recommended a short, (very) concise summary of Title VII’s prohibition against religious discrimination in employment found in Brad Reid’s Huff Post Business “The Blog,” in a three-page piece titled “A Legal Overview of Religious Discrimination in Employment.” Worth reading