DO UNTO OTHERS BEFORE THEY SUE UNTO YOU: Avoiding Religious Discrimination In The Workplace

By SEAN CARTER


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Thursday, Jul. 26, 2001

In today's legal climate, employers must learn to be ultra-flexible when it comes to dealing with their employees. Under a myriad of federal and state laws, employers must accommodate their employees' family leave issues, physical disabilities, and drug and alcohol addictions. It is only a matter of time before Survivor addictions are next.

And, of course, employers must be particularly sensitive to claims of racial, sexual, and even religious discrimination. In fact, just last week, a Colorado jury awarded $2.25 million to a former air traffic controller who claimed to be a victim of religious discrimination after being fired for refusing to work on the Sabbath.

What Laws Against Religious Discrimination Require

Religious discrimination claims are not a recent phenomenon. In fact, federal law has prohibited religious discrimination in the workplace since 1964, with the passage of Title VII of the Civil Rights Act.

Under Title VII, it is unlawful for an employer to discriminate on the basis of race, color, religion, sex, or national origin. In the case of religion, an employer must make reasonable accommodations for an employee's religious practices, so long as the accommodations do not cause "undue hardship" to the employer's business.

In many religious discrimination cases, the ultimate question becomes one of balancing the employee's freedom of religion against the employer's business needs. If an employer can accommodate an employee's request without any real harm to its business, then the employer will be required to do so.

For instance, if an employee of the Department of Motor Vehicles asks for a 15-minute break every half hour to pray and meditate, then the DMV will be obligated to accommodate this request because it will not cause undue hardship to its operations. In fact, from my experiences with the DMV, this seems to be the normal employee break schedule.

On the other hand, if a DMV employee's religious beliefs require her to perform her duties conscientiously, promptly and courteously, then her beliefs will not be accommodated and she will have to be let go. After all, this would cause undue hardship to her fellow employees (who are all currently "on break").

Time Off for Religious Observances

In the days of a more homogenous workplace, an employer could foresee requests for special religious observances, and therefore plan business activities around such important events as Christmas, Easter, and Super Bowl Sunday. However, in a more diverse society, employers are now being asked to allow for time off for a variety of religious observances — Yom Kippur, the Chinese New Year, Elvis' birthday, etc.

Many companies attempt to accommodate these requests by allotting employees a certain number of "floating holidays" that may be used throughout the year. Of course, this approach is not helpful in all cases, such as when employees religiously observe the Sabbath, the entire month of Ramadan or every episode of The Young and the Restless. Nevertheless, in these cases, before denying an accommodation, an employer must be able to demonstrate "undue hardship."

Dress Codes and Discrimination

Despite the general trend towards more casual business attire, some companies still employ formal dress codes. Other companies take this one step further by instituting grooming policies that prohibit hats, facial hair, braids, visible tattoos, earrings, and Tammy Faye Baker makeovers.

However, in any major corporation, these policies are bound to conflict with some employee's religious practice. For instance, some religions require the observant to wear some form of head covering. Others require men to wear long, braided hair (for Rastafarians), long beards (for Sikhs), earrings (for Pirates?), and so on.

Some major companies have attempted to address these conflicts by making religious accommodations. For instance, in May, United Airlines agreed to allow its employees to wear company-sanctioned hijabs, turbans, and yarmulkes. Likewise, Domino's Pizza recently decided to drop its ban on long beards in the wake of a lawsuit by a Sikh applicant.

Other companies have held steadfast to their policies and faced litigation as a result. Earlier this month, Federal Express was sued in a class action led by the New York Attorney General on behalf of a group of Rastafarian former employees who challenged the company's grooming policy, which prohibits long hair on men.

Unfortunately for Federal Express, major corporations are finding it increasingly difficult to prove that accommodations would cause "undue hardship" in these cases. After all, a growing number of companies have moved to "business casual" attire without any effect on their bottom lines.

Indeed, many high-tech companies allow "casual casual" dress and the trend seems to only be getting more casual. And some observers predict that in the not-so-distant future, companies will not require their employees to wear clothes at all, a policy that is expected to dramatically reduce employee absenteeism.

Religious Expression in the Workplace

In other instances, companies are caught between the proverbial "rock and a hard place," when an employee's expression of his religious beliefs offends other employees. In such cases, the employer must walk a fine line to balance the rights of its various employees. A misstep in this situation could result in a lawsuit.

In cases like this, the employer's decision must be based upon the level of intrusiveness of the religious employee's expression of belief. For instance, if the employee simply desires to quietly pray and read the Bible during lunch, he should be allowed to do so.

On the other hand, if a management employee insists upon forcing her subordinates to engage in religious rituals, such as The Lord's Prayer, Holy Communion, or human sacrifices, then perhaps someone should have a talk with her about switching to a more promising career at the U.S. Postal Service.

Follow the Golden Rule

As in most areas of life, the golden rule seems to apply to religious accommodations in the workplace. In an increasingly multicultural society, employers run serious legal risks by failing to make allowances and exceptions for those of different faiths. In fact, I think it was Johnny Cochran who said, "If You Don't Accommodate, You Must Litigate!" Although I could be wrong.


Sean Carter is a practicing attorney, stand-up comedian and the author of a soon-to-be published book entitled If It Does Not Fit, Must You Acquit? — Your Totally Irreverent Guide to the Law. He can be reached by e-mail at scarter926@yahoo.com.

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