Religious Accommodations: Responding to Time-Off Requests During the Holidays

According to statistics compiled by the Equal Employment Opportunity Commission (EEOC), the number of religion- based charges filed under Title VII of the Civil Rights Act of 1964 has increased by 123% since 1997. By comparison, race and sex discrimination charges have increased by 11% and 9%, respectively. While the EEOC does not provide data on when charges were filed, it would come as no surprise if a significant portion of charges were filed around the holiday season. Just as they are every December, thousands of employers will be confronted with time-off requests for religious observances this year. Read on for guidance on how to navigate those requests.

Religion Under Title VII

Title VII and the Wisconsin Fair Employment Act (WFEA) both prohibit discrimination based on religion or creed. They also mandate that employers reasonably accommodate employees’ religious beliefs and practices unless doing so would cause undue hardship. “Religion” is defined broadly to include not only common, well-recognized religions but also sincerely held beliefs. The employee’s burden in establishing the sincerity of a religious belief is not heavy. Even moral and ethical beliefs that are not based on a belief in God are protected so long as they are sincerely held with the strength of traditional religious views. The U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) has explained that the broad and intentionally hands-off definition of “religion” protects courts from becoming embroiled in determining whether certain practices are orthodox. The broad protection of religious beliefs, however, does not extend to political philosophies, social views, or personal preferences. In other words, Festivus may be for the rest of us, but it is not a religious holiday you must accommodate.

Reasonable Accommodations

Title VII provides that employers must reasonably accommodate employees’ religious beliefs and practices unless doing so would cause undue hardship. Accommodation requests may range from a few days off for a holiday to a particular day off each week for a religious observance. The employee bears the burden of providing notice of the conflict between his religious need and the job requirements. Then, the employer is required to make a good-faith effort to resolve the conflict by providing a reasonable accommodation. Notably, so long as the employer provides a reasonable accommodation, it is not required to provide the specific accommodation requested by the employee. Stated differently, the statutory inquiry ends once the employer provides a reasonable accommodation.

Undue Hardship

An accommodation poses an undue hardship on the employer if it imposes more than a de minimis (negligible or insignificant) cost or burden. Significantly, the de minimis standard is lower than the standard for disability accommodations under both the WFEA and the ADA. Determining whether an accommodation will result in an undue hardship requires a case-by-case analysis. Relevant factors include:

1. The nature of the employer’s business;
2. The nature of the employee’s duties;
3. The cost of the accommodation in relation to the employer’s size and operating costs; and
4. The number of employees who require an accommodation.

The “cost” of an accommodation includes not only the financial cost but also the burden imposed on the day-to-day operations of the business. Depending on other factors, an accommodation may create undue hardship if it infringes on other employees’ rights or benefits, has a negative effect on the efficiency of business operations, or poses a risk to workplace safety. Notably, it is not appropriate to deny an accommodation request based on hypothetical hardships that may arise. Employers must consider actual, objective information when determining whether an accommodation would present a hardship.

Evaluating Time-Off Requests

Requests for religious accommodations often present themselves as time-off requests during the holidays. Many religious holidays fall in December. Since the definition of “religion” is broad and protects beliefs and practices employers may be unfamiliar with, the EEOC’s Compliance Manual provides that it is prudent for employers to assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. However, if an employer has bona fide doubts about the religious nature or sincerity of a particular belief or practice, it is justified in seeking additional supporting information.

Once an employer receives a request for accommodation— assuming there is no reason to doubt the religious nature of the request—it should make reasonable efforts to resolve the conflict between the employee’s job duties and her religious beliefs or practices. That may require obtaining more information from the employee. For example, EEOC guidelines provide that when an employee requests a schedule change to accommodate daily prayers, it is appropriate for the employer to inquire about the time and duration of the prayers.

Accommodations can take a variety of acceptable forms. According to case law and EEOC guidelines, perhaps the most common accommodations are schedule changes, voluntary substitutes, and shift swaps. Regarding schedule changes, an employer can, of course, allow an employee to work flexible hours, permit an employee to work through lunch in exchange for leaving early, and provide floating holidays. The EEOC suggests encouraging voluntary substitutes and shift swaps by announcing that those options are permitted.

For accommodation requests that require a more permanent substitution (e.g., an employee not being able to work a certain day every week), employers may consider lateral transfers or changes in job assignments. The EEOC suggests employers consider those options as last resorts if accommodations cannot be made for an employee’s current position. Further, if a lateral transfer is not available, an employer should suggest a lower-paying position, if feasible.

While those options may seem onerous to employers, it’s worth repeating that they do not have to be implemented if they would impose more than a de minimis burden. Indeed, employers are not required to bear the cost of time-off requests. Moreover, the U.S. Supreme Court has supported the conclusion that it is reasonable to require an employee to take leave without pay in order to accommodate his religious practices. Further, employers are not required to accept substitutions or shift swaps if the substitutions or shift swaps are not between employees with substantially similar qualifications.

Also, employers do not have to permit lateral transfers or provide other accommodations that would violate a seniority system. The Supreme Court has explained that although a seniority system or collective bargaining agreement cannot be used to violate Title VII, an employer’s duty to accommodate does not require it to violate valid agreements. Such a requirement would deprive other employees of their contractual rights. Conversely, unfounded complaints by disgruntled coworkers cannot be a basis for denying reasonable accommodations. While accommodations that would violate the rights of other workers may amount to an undue hardship, mere complaints by employees are not enough to constitute an undue hardship.

Bottom Line

The importance of complying with Title VII’s requirement to provide religious accommodations is underscored by the fact that monetary sums paid in EEOC religion-based claims have increased nearly 360% since 1997. That number does not include sums paid through litigation. Because of increasingly diversified workplaces, it is becoming more and more imperative for employers to establish proper procedures for handling requests for religious accommodations.

Employers should accommodate requests for religious accommodations unless it can be established that an accommodation would result in an undue hardship. Whether a particular accommodation would result in an undue hardship is based on the facts of each case. While the de minimis standard is slightly more favorable for employers, denials of accommodation requests still must be based on objective facts that establish an undue hardship rather than unsubstantiated subjective concerns.

This article, slightly modified to note recent updates, was featured in the December 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.