With another season of religious holidays here or fast approaching, can you guess the answer to a few “easy” questions about religion at work? Don’t worry. If you guess wrong, the worst that can happen is a holy war at work, a big and distracting lawsuit, and at the end of the road, having to pay big damages.
Ready? Here goes.
- A devout Muslim refuses to shave his beard even though no one in his pizza delivery service job is allowed to wear a beard, because the owner wants to present a “clean cut look”; he says his religion forbids him from shaving;
- A Baptist in a union shop insists on being excused from Sunday assembly work, saying that his religion requires that he honor the Sabbath; he lacks seniority to bid out of Sunday work, and asks that more senior employees take his place whose religious beliefs are not affected by working on Sunday;
- The owner of a restaurant fires a Jewish employee for refusing to work overtime on Yom Kippur, or fires a Christian waiter for refusing to work on Easter;
- A Catholic professor is fired for refusing to pay union dues because the union supports abortion, but under the union agreement, his employment depends on paying union dues;
- A waitress who is a Jehovah’s Witness asks to be excused from singing happy birthday to customers, saying that her religion teaches her that personal birthdays are “pagan” celebrations;
- A bank teller who is an atheist quits after being told that he must attend monthly meetings at work, which include a religious talk and a prayer delivered by a local Baptist minister.
Religious bias can not only be expensive, but the ingredients of these claims are enough to make anyone want to invoke higher powers: a clash between deeply-held individual religious beliefs, the employer’s right to enforce general work rules, and the sensitivity of employees of other religions who see the rules being bent for people of different religious persuasions, but not for them.In all but one of these cases (the union shop Baptist), the employee prevailed in court or won a big settlement.
And these issues are just as controversial in the courts as in the workplace. Earlier this year, the U.S. Supreme Court held that mandatory prayer at school football games violates the First Amendment prohibition of an establishment of religion, setting off a firestorm of controversy. When the EEOC attempted to promulgate guidelines on religious harassment in late 1993, 100,000 people complained, and Congress prohibited the agency from using appropriated money to implement the rules. The rules have never been implemented.
Title VII prohibits religious discrimination at work, and employers face punitive and emotional distress damages running from $50,000 to $300,000, depending on their size, plus lost wages, for discriminating against individuals based on their religion. With distracting and expensive lawsuits and large damages awards looming for the employer who guesses wrong, how can employers and employees navigate through the shoals of Title VII law?
Like race, sex, age, or disability-based discrimination, Title VII prohibits employers from hiring, firing, promoting, or paying individuals based on their religion, except in a few narrowly-defined instances, such as hiring a minister for a church, or a pilot flying helicopters to Mecca, where Muslim religious doctrine calls for the death of non-Muslims entering the zone of Mecca (yes, it’s a real case, and a non-Muslim did apply).
But Title VII has special rules requiring an employer to accommodate an individual’s religious beliefs and practices, if, under standards established by the Supreme Court, bending of the rules will not pose an undue burden.
How does the employer know when it’s being taken for a ride, or if the request for a break flows from a sincerely held religious belief. Can the employer insist on a note from the minister, or demand proof from the Bible that the individual’s needs are religiously-based? What if other employees complain about “preferences” and “special breaks,” and say what about “my religion?”
Congress amended Title VII in 1972 to make clear that Title VII protects all aspects of religious observance and practice, to avoid employers picking and choosing among religions or aspects of religious practice. And the EEOC has issued interpretative guidelines to make clear that any religious belief or practice, mainstream or not, is protected, provided that they are “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”
Under these rules, the Jehovah’s Witness waitress who believes that singing happy birthday is a pagan ritual may be protected from Title VII. And the Sikh or Muslim whose religious belief would be compromised by having to shave a beard at work is protected.
But employers usually need not worry that they will be hit with lawsuits for not guessing that an obscure or little-known religious belief, or even a “mainstream” religious sensibility, will be stepped on at work.
Apart from the blatant case where an employer refuses to hire someone because she’s Jewish (for something other than a priest job), or insists that employees attend prayer over their objection as the price of holding a job, an employer risks a religious bias claim only where it knows that there is a clash between its business rules and an employee’s religious beliefs.
Under court precedent, an employer may need to modify its workplace practices to accommodate an individual’s religious beliefs where:
- An employee has a bona fide religious belief that conflicts with a an employment requirement;
- The employee informed the employer of his or her belief and the conflict;
- Changing the rule will not pose an undue burden for the employer.
The Supreme Court ruled in 1977 that even a minimal burden may be an undue burden, especially if the modification the employee wants would bump a more senior employee, break union seniority rules, or impose a significant cost on the employer. And under the rules announced by the Supreme Court in a 1986 case, the employee doesn’t get her first choice of accommodation, if the employer has another that will work equally well.
In a diverse religious culture, Title VII tries to maintain a balance, which allows individuals to be religious and still work, while not imposing burdens on employees of other religious persuasions. After all, it is hard enough to manage a business without adding a holy war between 8 to 5, and there are few more certain ways to trigger a lawsuit than to require an employee whose religion depends on it to shave his beard as the price of delivering a pizza.