One Nation Under God - Does That Include the Workplace?

Published on: 6/01/2005

Once a topic to be politely avoided in conversation - religion is now the topic of conversation. With companies openly professing faith and employees seeking accommodations based on faith, the phrase "One Nation Under God" is as simple as it is complex. As recently as March 19, 2005, the headline in a Texas newspaper read "Dell rehiring 31 Muslim employees after agreement over sunset prayer." According to the article, the Muslim workers voluntarily walked off the job with DellT after being told by a staffing company that they could not take a separate break for their required sunset prayers. The walk-out occurred as a result of a misinterpretation of Dell's policies and procedures by the outside staffing company responsible for placing the Muslim employees. While an agreement between the employees and Dell was eventually reached, the matter underscores the rising influence faith is playing in the workplace and the need to carefully evaluate, appropriately apply, and effectively communicate policies and procedures governing religion in the workplace. 

Consider the following: In 1995, approximately 1,581 complaints relating to religious bias were registered with the Equal Employment Opportunity Commission ("EEOC"). In 2004, the EEOC reported 2,466 complaints with a spike of 2,572 complaints in 2002. Perhaps the events of September 11th have caused an increase in the awareness of religion; perhaps it is the growth of the evangelical movement; or perhaps it is society embracing the individuality of faith in contrast to the diversity of race, gender, age, or ethnicity. Whatever the reason, employers must be prepared to evaluate and accommodate religion in the workplace - a task that is precarious even under the best circumstances. From requests to include bible verses at the end of company email, to holding prayer meetings in the lunch room, to maintaining a physical appearance contrary to the reputation and image of the company, to religions or religious practices that are not in the "mainstream," to companies founded on faith-based principles, employers must navigate the waters of what constitutes an appropriate and acceptable religion/accommodation - often without a paddle. 

Religion, like sex, race, color, national origin, age, and disability, enjoys a level of protection in the workplace. Indeed, Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an individual based on the individual's religion. An employer must provide a reasonable accommodation for a religious practice unless doing so would cause an undue hardship on the conduct of the employer's business. An employee who complains of religious discrimination must show that (1) the employee has a bona fide religious belief that conflicts with an employment requirement, (2) the employee informed the employer of this belief, and (3) the employee was disciplined for failing to comply with the conflicting employment requirement. The burden then shifts to the employer to demonstrate that (1) a reasonable accommodation was made or (2) that an accommodation could not be made without undue hardship. 

Applying these governing principles to claims of religious discrimination in the workplace can be difficult - particularly if the employee asserts an entitlement beyond what the employer believes is reasonable or can accommodate. In Cloutier v. Costco Wholesale Corp., the employer adopted a policy prohibiting all facial jewelry other than earrings. The employee asserted that her religious calling required her body piercings to be visible at all times. The employer offered to allow the employee to wear plastic retainers in place of the facial jewelry or adhesive bandages to cover the jewelry. The employee refused the accommodation and argued that she was entitled to an exemption from the company policy. The EEOC agreed with the employee and the employee filed suit under Title VII and applicable state law. The trial court determined that the offered accommodation was reasonable and that Title VII did not require a granting of the preferred accommodation but merely a granting of a reasonable one. The appellate court upheld the decision but on different grounds. The appellate court determined - irrespective of whether the offered accommodation was reasonable - that a blanket exemption from the policy would impose an undue hardship on the company. Key to each analysis was the following: (1) the cooperation of the company to accommodate within reason; (2) the failure of the employee to accept an accommodation absent an exemption from the policy; and (3) the company had a legitimate interest in presenting a workforce with a professional appearance. 

Similarly, in Grant v. Fairview Hosp. & Healthcare Serv., an ultrasound technician argued that his religious beliefs required him to offer pastoral counseling to women who were contemplating an abortion. While the employer would not permit the employee to proselytize or provide pastoral counseling to a patient, it did allow the employee to end the examination of a patient upon learning that an abortion was being considered and to leave the room. The court determined that the employer's accommodation was reasonable and that the employer was not required, under Title VII, to allow the employee to impose his religious beliefs on others. In Wilson v. U.S. West Communications, the employee asserted that her religious obligations required her to wear an anti-abortion button depicting a photograph of a fetus. Other employees complained and the employer offered three accommodations including leaving the button in the cubicle, covering the button while at work, and wearing a button without the photograph. The employee refused each accommodation and requested that her co-workers be instructed not to look at the button. The court determined that, of the offered accommodations, only the requirement to cover the button was reasonable since it still allowed the employee to wear the button and reduced other employees' concerns. 

Equally challenging is an allegation of harassment because of a religious belief or lack thereof. In Johnson v. Spencer Press of Maine, Inc., a supervisor repeatedly called a subordinate "a religious freak," told him not to talk about "religious bullshit," made derogatory comments about the Virgin Mary, and implied that the subordinate was not getting enough sex due to his religion. The subordinate complained to the company without response and eventually resigned. The subordinate filed suit alleging, among other things, religious harassment and constructive discharge. The employer argued that the subordinate was not harassed because of his religion; rather, it was his religious sensitivities that resulted in a feeling of harassment in the workplace. The court rejected the employer's argument by (1) linking the supervisor's comments to an animosity toward the subordinate's religious beliefs, (2) recognizing a consistent theme and consistency in the type of harassment, and (3) noting that the supervisor did not make similar comments to other employees. 

Without a doubt, employers are routinely faced with complex questions: Does a weekend overtime or work requirement need to be accommodated for an individual who is not able to work on the Sabbath? Must all employees participate in the daily office devotional and how must an employer treat the one who does not? Can we terminate or reassign an individual to a less public work area if the individual's appearance makes our customers or other employees uncomfortable? Is "camel jockey" an inappropriate slur or religious harassment? Is the "religion" really a religion? To help answer these questions, the EEOC provides some guidance on its website at www.eeoc.gov. Indeed, the standards that the EEOC will apply to a religious-based complaint as well as the EEOC's interpretation of common factual scenarios are readily found in the religious discrimination section of the website. 

Practically speaking, however, employers are more often faced with unique situations that require difficult decisions. An accommodation can just as easily snare a company as it can insulate a company from complaint. Being able to turn to known and understood policies and procedures is a critical first step when evaluating a religious-based complaint or a request for accommodation in the workplace. Accordingly, employers should:

  • Prohibit discrimination and harassment based on religion in the workplace.
  • Implement an anti-harassment policy that includes religion and procedures for reporting, investigating, and addressing religious discrimination, harassment, and retaliation.
  • Routinely train and educate employees on religious accommodation practices and the policies and procedures governing religion in the workplace, including anti-harassment and reporting/investigations.
  • Refrain from treating employees or prospective employees more or less favorably due to a religious belief or perceived religious belief or lack thereof.
  • Refrain from placing greater restrictions on the expression of religion if other forms of non-business related expression are permitted in the workplace.
  • Refrain from selectively enforcing policies and procedures regarding the use of company property or expression in the workplace. For example, allowing Christian employees to use the lunch room to pray but requiring Muslim employees to pray at their desks.
  • Evaluate each request for accommodation and determine whether the request is reasonable and can be accommodated without undue hardship. If an undue hardship would result, be prepared to articulate the nature of the undue hardship with objective, non-discriminatory terms. For example, the company only has one conference room and the room is used daily for a business meeting at the same time the room has been requested for prayer, as compared to, if the company grants the request for one or a few employees all employees of the same religion will want the same treatment and thereby cause an undue hardship by disrupting the work day.
  • Uniformly apply policies and procedures regarding the use of the company property, including email, bulletin boards, voicemail, copy machines, etc., for non-business related purposes.
  • Take a complaint relating to religious discrimination or harassment seriously and promptly address the complaint.
  • Remove personal religious beliefs from the process.
  • Consult with legal counsel to develop appropriate policies and procedures, to analyze the facts in light of the governing laws, and to provide guidance relating to documentation and resolution of the complaint.

Many lawsuits stem from poor communication or understanding of the company's policies and procedures. With respect to religion, employers should take the necessary steps to reduce any confusion.




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