’Tis the Season for Religious Accommodations
The holiday season is the busiest time of year for many employers. It’s also when you’re flooded with time-off-work requests for religious observances. What are your obligations when it comes to accommodating the requests? The answer is important, considering the costs associated with getting it wrong. According to the Equal Employment Opportunity Commission (EEOC), employers paid applicants and employees more than $9 million in monetary benefits last year as a result of religious discrimination charges. And that doesn’t include amounts obtained through litigation of claims. Read on to ensure your company is equipped to handle religious accommodation requests during the holiday season.
Religion Under Title VII
Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act (WFEA) prohibit discrimination on the basis of religion and creed, respectively. Both laws mandate that employers reasonably accommodate employees’ religious beliefs and practices unless doing so would cause an undue hardship.
“Religion” is defined broadly to include not just common, well-recognized religions but also sincerely held beliefs. As a result, even moral and ethical beliefs that aren’t based on a belief in God are protected so long as they are sincerely held with the strength of traditional religious views. Moreover, beliefs and practices can be “religious” even if the employee is affiliated with a religious group that doesn’t recognize the belief or practice. The U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) has explained that this broad and intentionally hands-off definition of religion protects courts from becoming embroiled in determining whether certain practices are orthodox in nature. The broad protection, however, does not extend to political philosophies, social views, or personal preferences.
So, how do you determine the “sincerity” of a belief? The employee’s burden in establishing sincerity isn’t a heavy one. If you have a bona fide doubt about the accommodation request, however, you may make a limited inquiry. According to the EEOC, factors that may provide a reasonable basis to question the sincerity of a belief include:
- Whether the employee previously acted in a manner “markedly inconsistent” with the belief;
- Whether the accommodation being sought is “particularly desirable” and is likely to be sought for nonreligious reasons;
- Whether the timing of the request is suspect; and
- Whether you have reason to believe the request is being sought for nonreligious reasons.
Title VII provides that an employer must reasonably accommodate an employee’s religious beliefs and practices unless doing so would cause undue hardship. An increasingly diverse workforce means employers are required to accommodate a wide range of practices, beliefs, and customs. The requests may range from a few days off for a holiday to a particular day off each week for religious observances.
The employee bears the burden of providing notice of the conflict between the religious need and the job requirements. You then must make a good-faith effort to resolve the conflict by providing a reasonable accommodation. Notably, so long as you provide a reasonable accommodation, you aren’t required to provide the specific accommodation requested by the employee. In other words, the statutory inquiry ends once you provide a reasonable accommodation.
You aren’t required to provide an accommodation that would cause an “undue hardship” for your organization. An accommodation poses an undue hardship when it causes more than a de minimis (or negligible) cost or burden. The standard is lower than the one required for the accommodation of disabilities under both the WFEA and the Americans with Disabilities Act (ADA). Determining whether an accommodation would result in an undue hardship requires a case-by-case analysis. Factors to consider include:
• The nature of the employer’s business;
• The nature of the employee’s duties;
• The cost of the accommodation in relation to the employer’s size and operating costs; and
• The number of employees who require an accommodation.
The accommodation’s “cost” includes not just the financial expense but also the burden on the day-to-day operations of the business. Depending on other relevant factors, you may find undue hardship if the accommodation would infringe on other employees’ rights or benefits, have a negative effect on the efficiency of your business operations, or pose a risk to workplace safety.
Notably, it isn’t appropriate to deny an accommodation based on hypothetical hardships that may arise. You must evaluate actual objective information when determining whether a situation would present a hardship. As a result, you can’t deny an accommodation on the mere belief that it will cause others to seek the same type of assistance.
Evaluating Time-off Requests
Religious accommodation inquiries often present themselves in the form of time-off requests during the holidays. Many of the holidays fall in December. Since the definition of religion is broad and protects beliefs and practices that may be unfamiliar to you, the EEOC’s compliance manual suggests it would be prudent to assume that an employee’s religious accommodation request is based on a sincerely held religious belief. However, if you have a bona fide doubt about either the religious nature or the sincerity of a particular belief or practice, you may seek additional supporting information.
Assuming there is no reason to doubt the religious nature of the request, you should make reasonable efforts to resolve the conflict between the job duties and the religious beliefs or practices. That may require obtaining more information from the employee. EEOC guidelines provide that when an employee requests a schedule change to accommodate daily prayers, it would be appropriate to ask about their time and duration.
Once you have the information you need, it’s time to determine whether an accommodation is possible. Accommodations can take a variety of acceptable forms. For time-off requests, perhaps the most common accommodations are schedule adjustments, voluntary substitutes, and shift swaps. With regard to changing schedules, you can, of course, allow an employee to operate under flexible work hours or use lunch time in exchange for leaving early, provide floating holidays, and so on. With regard to voluntary substitutes or swaps, the EEOC suggests encouraging them to happen by publicizing that they’re permitted.
With regard to accommodations that require a more permanent substitution, such as not being able to work a certain day every week, you may consider a lateral transfer or a change in job assignments. The EEOC suggests considering those options as a last resort if accommodations cannot be made in the current position. Furthermore, if a lateral transfer isn’t available, you should suggest, if feasible, a lower-paying position.
While the variety of options noted above may seem onerous to employers, it bears repeating that they don’t have to be implemented if they would impose more than a de minimis burden on your organization. Indeed, you aren’t required to bear the cost of any time-off requests. Moreover, the U.S. Supreme Court has supported the conclusion that it’s reasonable to require an employee to take leave without pay to accommodate religious practices. Furthermore, you aren’t required to accept substitutions or shift swaps if they don’t involve employees with substantially similar qualifications.
With an ever-diversifying workforce, it becomes more and more imperative for employers to establish proper procedures for handling religious accommodation requests. The importance of complying with Title VII’s requirements for a religious accommodation is underscored by the fact that monetary benefits paid out under EEOC religion-based claims have increased by nearly 360 percent since 1997. Again, that number doesn’t include monetary benefits obtained through litigation.
You should allow a reasonable accommodation unless it would result in an undue hardship, which is determined by the particular facts of each case. While the de minimis standard is slightly more favorable to employers, any denial of an accommodation must still be based on objective facts establishing an undue hardship, rather than unsubstantiated subjective concerns.
This article, slightly modified to note recent updates, was featured in the December 2018 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.