A Legal Overview of Religious Discrimination in Employment

01/16/2016 05:00 pm ET Updated Jan 16, 2017

Title VII of the federal Civil Rights Act of 1964, among other requirements, prohibits discrimination in employment based upon religion for covered employers who have 15 or more employees (42 U.S.C. Sec. 2000e). Employees' religious beliefs and practices are entitled to "reasonable accommodation" in the workplace unless it would cause the employer an "undue hardship." Asserted claims of prohibited discrimination must typically be made to the Equal Employment Opportunity Commission (EEOC) or comparable state agency within 180 days of the discriminating event. Note that many states have similar statutes that may include more employers or have different procedural requirements. This comment provides a brief and incomplete educational overview of the complex topic of religious discrimination in private sector employment. Public employees have a somewhat different situation. Always contact an experienced employment discrimination attorney in a specific situation.

Courts have difficulty precisely defining "religion." Courts do not judge religious doctrines. This is as ancient as the Biblical account in Acts 18 of a Roman Proconsul declining to hear such a case. Numerous modern U.S. court decisions address employer "undue hardship." These cases may conclude, for example, that since customers prefer that employees without tattoos serve them, it is an undue hardship if an employer cannot require their covering, even if the tattoos are religiously inspired.

Courts state that a religious belief or practice is "sincere," "central," "influences behavior," and addresses "ultimate ideas" concerning "life, purpose, and death." However, the courts have concluded that "religion" may exist without the individual believing in a traditional Deity or acting in conformity with an established religious group. In other words, it is legally possible to have a one person "religion."

Courts distinguish "religion" from social, political, or ethical viewpoints. Personal preferences in appearance such as hairstyle, clothing, or jewelry do not constitute "religion." Nutritional preferences or political affiliations are not "religion." The analysis becomes very factually specific. A religious practice or belief is "sincerely held" ("bona fide") based upon both the employee's subjective belief and objective practice. While a court will not determine the ultimate truth or reasonableness of the subjective religious belief, the court will take note of consistent objective practice. The employee must be consistent in belief and practice in order to successfully assert religion.

Courts have determined that both "disparate treatment" (different treatment due to the employee's religion) or a failure to "reasonably accommodate" an employee's religious belief or practice (absent employer undue hardship) are forms of unlawful religious discrimination in employment. Precisely what is a "reasonable accommodation" in a specific situation? This is fact specific.

Note that not only must the employee have a bona fide religious belief, she or he must typically inform the employer of this belief. Why did the employer take the adverse employment action in question? Did the employee fail to comply with a job requirement that conflicted with the communicated religious belief when a reasonable accommodation was possible? A 2015 U.S. Supreme Court decision (8:1) involved a successful lawsuit by a prospective employee who was denied employment after wearing a hijab to an employment interview but without requesting a religious accommodation (EEOC v. Abercrombie & Fitch). However, this case involves unique facts.

Consequently, from the employer's viewpoint:

1. Is there notification or reason to know that a reasonable religious accommodation may be appropriate?
2. If so, initiate communication with the employee concerning possible accommodations. The accommodation process involves cooperation and dialogue and cannot be unilaterally undertaken by either party.
3. Listen to the employee's request and why the employee wants it.
4. An employer does not have to provide the employee with her or his requested accommodation if the employer prefers to provide a different but reasonable alternative.
5. An employer needs to be factually objective concerning what accommodation is reasonable or might create an undue hardship.

The following are some general types of proposed reasonable accommodation:

1 . Flex schedules or personal leave policies.
2. Schedule and shift exchanging done voluntarily.
3. Modification in employer grooming standards or dress codes.
4. Voluntary transfers and sometimes voluntary demotion. Be cautious.
5. Allowing non-disruptive prayer and/or religious conversation outside of customer service areas. This is very fact specific.

An employer might possibly reject a proposed accommodation because it:

1. Imposes more than a de minimis (very small) cost or administrative burden.
2. Creates building or business code violations, or other legal violations or safety issues.
3. Violates contract rights or a collective bargaining contract.
4. Creates workplace disruption, workplace conflicts, or damages customer interactions. Be factually objective.
5. Adversely impacts the corporate brand or creates community disdain.

Office of Federal Contract Compliance Programs regulations require federal contractors and subcontractors to provide employees and prospective employees with accommodations for religious observance and practice, specifically mentioning Sabbath and religious holiday observance (41 CFR 60-50.3). However, in determining what might constitute an undue hardship to the employer, the regulation states that factors such as business necessity, financial costs and expenses, and resulting personnel problems may be considered.

Religious faiths and religious educational institutions may discriminate on the basis of religion in employment decisions. Additionally, when an employee's conduct is contrary to the religious principles of the religious institution, the employee may be terminated. However, determining if a particular employer is "religious" may be difficult. Courts frequently examine the relative mixture of secular and religious activities occurring within the organization.

"Ministerial" employees are not allowed to sue religious employers under anti-discrimination statutes, including the Americans with Disabilities Act, as decided by the U.S. Supreme Court in a 2012 unanimous decision (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC). The teacher in question had completed a course of theological study and accepted a "call," teaching both religious and secular classes in kindergarten and the fourth grade. After a dispute with her employer concerning disability leave for narcolepsy, she was terminated. Upon reviewing the facts of this situation, as well as the history of religious liberty and the First Amendment, the Supreme Court concluded that the ministerial exception bared her lawsuit. The Court noted that it expressed no opinion concerning whether or not the ministerial exception would prohibit other types of lawsuits, such as breach of contract or tort (injury).

Consequently, a religious employee would be advised to have a written employment contract containing provisions for disability and severance benefits, etc.

The federal Religious Freedom Restoration Act of 1993, in broad overview, prohibits government from substantially burdening one's exercise of religion unless the government demonstrates a compelling interest and the governmental burden is the least restrictive method to address this compelling interest (42 U.S.C. Sec. 2000bb-1). In 2014 the U.S. Supreme Court utilized this statute to limit regulations under the federal Affordable Care Act that required employers to provide health insurance coverage for some methods of contraception (Burwell v. Hobby Lobby Stores). This complex topic is beyond the scope of a brief comment.

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always contact an experienced employment discrimination attorney in a specific situation.