RELIGIOUS ACCOMMODATION: BALANCING THE RELIGION AND WORK CONFLICT

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1 : BALANCING THE RELIGION AND WORK CONFLICT Presented By Andy Hament FordHarrison LLP Labor and Employment Law - Representing Management

2 October 2014 Pumpkins, Cider, and Religious Holidays Yom Kippur (October 3-4) (Jewish) Feast of St. Francis of Assisi (October 4) (Catholic Christian) Dasara (October 4) (Hindu) Eid-al-Adha (October 4-7) (Islamic) Sukkot (October 8-15) (Jewish) Birth of the Báb (October 19-20) (Bahá í) Installation of Scriptures as Gukru Granth (October 20) (Sikh) Diwali (October 23-27) (Hindu) Muharram (October 24-November 22) (Islamic)

3 Legal Background Title VII of the Civil Rights of 1964 Prohibits religious discrimination Requires reasonable accommodation of an employee s sincerely held religious beliefs or practices unless accommodation would impose an undue hardship March 6, 2014, EEOC issued 2 publications addressing religious garb and grooming policies in the workplace, and when accommodation is required

4 Legal Background (continued) EEOC charges of discrimination alleging religious discrimination more than doubled in past 15 years Florida religious discrimination charges account for 8% of all religious discrimination charges nationwide In 2013, 7,597 charges of discrimination were filed in Florida 3.9% of those charges claimed religious discrimination Copyright 2014, Kunkel Miller & Hament All Rights Reserved.

5 What Religions Are Covered by Title VII? Traditional, organized religions (i.e., Bahá í, Buddhism, Christianity, Islam, Hinduism, Jehovah s Witness, Judaism, Sikh) Religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people (even atheism)

6 Undue Hardship Compared: Religion v. Disability (ADA) Religion: More than a de minimis (minimal impact upon the business) cost to the employer Costly, compromises workplace safety, decreases workplace efficiency, infringes on rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work Violates the terms of a collective bargaining agreement or job rights established through a seniority system Disability: action requiring significant difficulty or expense when considered in light of factors, including nature and cost of accommodation in relation to size, resources, nature, and structure of employer's operation

7 Types of Religious Accommodation Attendance/Scheduling Changes/Breaks Dress/Grooming Policy Exceptions Participation/Lack of Participation in Religious Activities Avoidance of Duties

8 Religious Accommodation Checklist: Engage in interactive process Determine whether practice/belief is religious Understand employee s request Consider whether employer can provide requested accommodation or alternative accommodation without creating undue hardship Involve Human Resources professionals, and attorneys, as appropriate

9 Employee terminated for refusing to take a mandatory flu shot due to her vegan beliefs may have a religious accommodation claim (Chenzira v. Cincinnati Children s Hospital Medical Center) Query: Is veganism a religious belief? Court found it plausible that Employee could subscribe to veganism with a sincerity equating that of traditional religious views, particularly as view was supported by essay by others and Biblical excerpts Employer should evaluate alternatives (e.g., mask, vegancompliant vaccine)

10 Employee eating Kozy Kitten Cat Food not required accommodation for religion (Brown v. Pena) Plaintiff allegedly had personal religious creed that certain cat food contributed significantly to his energy level and work performance, and employer should allow him to eat it over objections of other workers EEOC and Court found Plaintiff had a personal preference -- not one of deep religious conviction shared by an organized group, intimately related to daily living, or to a Supreme Being

11 Employee request for bereavement leave may implicate requirements for religious accommodation (Adeyeye v. Heartland Sweeteners) Employee requested several weeks of unpaid leave to participate in his father s funeral in Africa Requests for leave with reference to spiritual activities/rituals may be sufficient to put employer on notice of religious issue Protections of Title VII are not limited to familiar religions according to the Court (and the EEOC)

12 IRS Employee request to wear a sword to work to comply with the Sikh faith was not a reasonable accommodation under Title VII (Tagor v. USA) Federal law prohibited dangerous weapon in Federal Building Employer took request seriously, evaluated request, but denied it because could not comply with law Court concluded complying with law was not discrimination But, case remanded under Religious Freedom Restoration Act which requires strict scrutiny analysis, in light of exceptions that had been made by the Federal government

13 Challenge to failure to accommodate faith-based objection to employer s pants-only dress code (EEOC v. Fries Restaurant Management) Member of Christian Pentecostal Church which subscribes to the belief that women should wear dresses When she applied, she was told employer would accommodate, but manager would not and she was discharged EEOC filed suit on employee s behalf settled

14 Religious Garb and Grooming Accommodations May need to accommodate employees wearing religious clothing or articles, observing religious prohibition against wearing certain garments, or adhering to shaving or hair lengths/styles Cannot require employee s religious garb, marking, or article of faith to be covered if that would violate religious beliefs May bar employee s religious dress or grooming if based on workplace safety, security, or health concerns that pose undue hardship on operation of business

15 Employees required to attend daily Scientology classes as a condition of their employment filed suit (EEOC v. Dynamic Medical Services) Claim: Employer failed to accommodate religious beliefs by denying employees requests to skip classes Private workplace need not be free from religion Case settled for $170,000

16 EEOC sued employer for failing to accommodate and discharging employee who asked not to work certain days due to religious practices and beliefs (EEOC v. Food Lion, LLC) When hired as a meat cutter, Employee, a Jehovah s Witness minister and elder, asked not to be scheduled to work Thursday evenings and Sundays because he is required to attend religious services/meetings Hiring manager agreed, but 21 days later transferred and new manager fired him for unavailability on Sundays

17 Accommodating Schedule Changes If schedule change would impose undue hardship, employer should allow co-workers to voluntarily substitute or swap shifts to accommodate employee s religious belief If employee cannot be accommodated in current position, consider transfer to vacant position Infrequent payment of overtime to employees who substitute shifts is not considered by EEOC to be undue hardship

18 Accommodating Employer s Religious Beliefs: U.S. Supreme Court held in Burwell v. Hobby Lobby Stores, Inc. that Religious Freedom Restoration Act required accommodation of sincere religious beliefs of employer (3 privately owned for-profit corporations and their single family owners) about life beginning at conception Did not require them to offer insurance coverage for 4 certain contraceptives that would otherwise be required by ACA Privately owned for-profit corporation with multiple owners, who want similar exception, will have to prove they all share similar sincere religious belief

19 Practical Tips Evaluate and consider broad interpretation of the term religion to practices/beliefs other than traditional religions Accommodate religious request if no undue hardship Review anti-discrimination, grooming/dress code, and attendance policies for possible violation or challenge Conduct supervisor and manager training