If Saint Patrick walked into your workplace today, how would he and his beliefs be received? As we gather on March 17, amidst the shamrocks and celebrations, let's not forget why we honor the life of this patron saint. Born in the late 4th century, Maewyn Succat was canonized as Saint Patrick for bringing Christianity to Ireland. Saint Patrick's workplace was an entire nation, where he travelled the countryside, baptizing hundreds of souls and establishing monastery schools and churches of the Christian faith. In contemporary times, we call this activity proselytizing. In an age where the demands of work duties require more hours and employees' personal time, beliefs find more expression during the business day. Modern employers, on the one hand, embrace such expressions within the workplace, as self-appreciation leads to greater creativity and productivity. But on the other hand, work is work and most employers want to avoid the clashing of employee beliefs on the shop floor. So what's the answer? A policy and process to accommodate religious beliefs, which is likely a much different approach than the Romans used with Saint Patrick.
The Sincerely Held Belief
Title VII and equivalent state statutes, such as California's FEHA, prohibit employment discrimination based on religion. In the context of accommodating religion in the workplace, an employer's obligation is to provide a reasonable accommodation for an employee's religious beliefs or practices, so long as doing so does not impose an undue hardship on the employer [citation omitted]. But Title VII does not require employers to accommodate every belief, only those beliefs that are "sincerely held." Although this would tend to suggest a narrowing of the beliefs to be accommodated, the issue becomes quite expansive when one considers the question – what is a sincerely held belief? This target is hard to hit upon. Moreover, is the endeavor to do so even worthwhile?
Courts have interpreted a "sincerely held belief" to be one that is moral or ethical as to what is right and wrong, which is sincerely held with the strength of traditional religious views. Federal agencies and authorities counsel that such beliefs concern "ultimate ideas" about "life, purpose and death [citation omitted]." A sincerely held belief can be part of an organized religion, traditional in practice or newly adopted. It can be a product or observance of Buddhism, Islam, Christianity, Judaism or any other prominent religious sect. But, a sincerely held belief can also be an uncommon one held by just a small number of people. Thus, it need not be consistently observed both as a common practice, but may be one different from the tenets of any specific religion [citation omitted]. So here is the real test for an employer: when is an employee's belief sincerely held? The best answer is simple: unless there is specific evidence to demonstrate otherwise, a belief is sincerely held if the employee says it is.
An employer should always approach a claim that a belief is sincerely held with acceptance as the base reaction. This is especially so as courts generally resolve doubts about particular beliefs in favor of finding that they are religious and, thus, "sincerely held." Indeed, unless an employer has objective evidence through observation that the claimed belief is not sincerely held, it is not worth the fight. When such questions arise, an employer's initial response should be to seek clarification in a respectful manner, aimed at gathering information rather than challenging the belief. As the definition is elusive, without evidence that suggests the belief is less than sincerely held, employers should accept it as worth accommodating.
When to Accommodate
Because a claim of failure to accommodate, at its core, asserts that there is a conflict between an employer's workplace policies and an employee's beliefs, when considering whether to accommodate, the employer must first identify a workplace rule, a duty of the employee that will be impacted, and suitable modification to the rule to meet everyone's needs. Thus, the employer should begin the accommodation process by first answering the question, "do I need an accommodation?" Title VII requires an employer on notice of the need for a religious accommodation to reasonably accommodate an employee's sincerely held religious belief, practice, or observance that may conflict with a work requirement, unless doing so would pose an undue hardship. The U.S. Supreme Court settled the issue as to whether an accommodation needs to be specifically requested by holding in EEOC v. Abercrombie & Fitch [citation omitted] that the failure to explicitly state a religious belief does not necessarily absolve the employer of its duty to accommodate. Rather, employers should take note of any statement, practice or sign that suggests that an issue of religion or faith may be at issue to begin an accommodation discussion with an employee.
Under Title VII, the undue hardship defense to providing religious accommodation requires a demonstration that the proposed accommodation in a particular case poses a "more than de minimis" cost or burden. Note that this is a lower standard for an employer to meet than undue hardship under the Americans with Disabilities Act, which is defined in that statute as "significant difficulty or expense" [citation omitted]. Yet, undue hardship requires a broad inquiry of the burdens placed on co-workers, safety and health issues, type of workplace, nature of employee's duties, identifiable cost of the accommodation in relation to size and operating costs of the employer, number of employees who will need accommodation, violation of a seniority system, and other potentially non-quantifiable costs.
Employers must consider the impact that an accommodation will have on co-workers. Attention should be given to whether the accommodation may lead to disruption or disagreement between individuals or sects of employees and their beliefs. If so, employers should discuss ways in which the impact may be lessened by providing areas where employees may choose to attend an accommodated practice or alternative celebrations that may espouse different views, but can be done so in a way that is non-confrontational and allows for respect of another view. While interruption of performance of another employee's duties or subjecting co-workers to a hostile work environment is an undue hardship, causing disgruntlement or jealousy between co-workers is not [citation omitted].
While Title VII does not require employers to conduct discussions, clearly an interactive process would be a best practice to reaching understanding and any needed accommodation. A discussion allows for the exchange of ideas, provision of additional information, elimination of unsuitable ideas and resolution of the conflict. A cooperative approach to determining if a reasonable solution can be reached to allow an employee to observe, display or practice her or his religious belief serves both the interest of the employer and the employee.
How to Accommodate
As it was with Saint Patrick, some employees believe that their personal religious beliefs come with an obligation that they be shared as a means of persuading, comforting and enlightening their co-workers. The expression, observance and practice of sincerely held beliefs are as various as the beliefs themselves. As a practical guide, employers should avoid a set list, but consider each accommodation request as it comes including praying, attending services, displays of religious clothing, symbols or objects, dietary restrictions and rules, or refraining from certain activities. However, the greatest issues employers encounter is proselytizing or oral forms of religious expression about faith, in an effort to recruit, inform and/or persuade. Whether a practice is religious depends on the employee's motivation. The fear of endorsing or favoring one faith over another is the principle issue. However, a sincerely held belief can be accommodated in respectful and meaningful ways, so as to educate without endorsing.
In determining how to accommodate, an employer should pinpoint and narrowly focus the accommodation as an exception to a specific policy, procedure or practice that is in conflict. Thus, religious accommodations should be viewed as a determination, given on a case-by-case basis befitting the specific situation. Most employers receive (and should also note on their own) accommodation requests that call for the exception to dress or grooming policies, work schedule, specific observances during work hours, job duties and transfers or displays and information sharing. The employer must carefully analyze its policy and the specific request or belief to identify the conflict and make appropriate accommodations. Thus, a uniform dress policy may be supplemented by allowing a Jewish employee to wear a yarmulke or a Muslim employee to wear a hijab. Likewise, scheduling changes can allow a Catholic to attend Good Friday services, for example, or two employees can agree to swap duties so that one employee need not work on his or her Sabbath.
But employers should also use accommodation as an opportunity to spread both education and respect amongst the workforce. The holiday season presents a perfect time for a "lunch and learn" series on Christmas, Hanukkah, Kwanzaa and other holidays at the end of the calendar year. Easter, Passover, St. Patrick's Day, Ramadan, Lent and other sacred days of faith can be honored and shared. However, such employer-sponsored celebrations should not exclude or limit participation of lesser known observances, but should invite any and all with the underlying principle that learning is to be shared and respect is to be observed. It should be noted that Title VII defines religion very broadly to include practices and observances that are theistic in nature, as well as non-theistic (moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views).
Undoubtedly, opening up the workplace to such a wide definition of "religious" may invite elements and practices that are undesirable and not seen as focused on respect of others. This does not mean that employers must appease everyone. Indeed, security concerns, potential for violence, disruption of the workplace and other factors that injure rather than support the cause of respect, learning and honoring of sacred beliefs are strong considerations in the undue hardship analysis, which leaves employers to disallow certain practices. Social, political or economic philosophies and personal preferences are not viewed as religious beliefs under Title VII.
How to Prepare Your Workplace
Each time an employer trains its workforce on anti-harassment/antidiscrimination policies, make sure there is a segment on the company's policy regarding religious accommodation. The training should cover:
- A thorough explanation of the written policy for requesting a religious accommodation
- A request for an accommodation and cooperation and understanding, should the possible need for one be noted and brought up for discussion
- A detailed explanation of the concepts of "sincerely held beliefs" and "undue hardships"
Part and parcel to the training on the policy is an understanding that managers know the process. An employer's accommodation process should include having the employee or a manager complete a form stating an employee's requests for an accommodation or noting that one may be needed and why. HR and the employee's immediate manager should then meet with the employee, exhibiting flexibility and cooperation, to thoroughly discuss the implicated workplace rule, the belief that needs accommodating and ways in which an accommodation may be given. This is the time s to seek full information, including costs, frequency, details of the observance and how it will impact or interact with others within the workplace.
After getting full information, the manager and HR can together evaluate the request, considering the practical issues of the workplace and employee duties to determine if a work conflict does exist, whether there is information to suggest that a belief is sincerely held, and whether an accommodation is available that is reasonable and would not create an undue hardship. Once a decision is made, the manager, employee and HR should reconvene to discuss the decision and the logistics to implementing the accommodation. If the employee accepts the proposed religious accommodation, the employer can implement the decision. If the employee rejects the proposed accommodation, he or she may seek to appeal or offer additional information or follow the company's general grievance policy and procedure.
The modern workplace may have had some issues accommodating all the observances and practices of Saint Patrick. But the intersection between religion and secular duties has come a very long way. Saint Patrick's modern day descendants are able today to walk into workplaces where policy, process and respect for beliefs are key factors in running a successful business.
This article is presented for informational purposes only and is not intended to constitute legal advice.
