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IPA
Public Policy Library
Religious Accommodation in the Workplace
YOUR RIGHTS AND OBLIGATIONS
Religiously observant employees
are often confronted with conflicts between their employment obligations
and their religious beliefs. This “brochure” is meant to serve as a
general guide to the protection of religious rights under Federal
employment law.
WHAT ARE MY LEGAL RIGHTS IN THE
WORKPLACE?
Federal law requires an employer
to “reasonably accommodate” an employee’s religious observances,
practices and beliefs unless the employer can show that accommodation
would cause an “undue hardship” to the employer’s business.
What constitutes “reasonable
accommodation” and “undue hardship” depends on the facts unique to a
particular situation. Essentially, an employer must attempt to create a
structure permitting employees to practice their religious beliefs while
still maintaining their jobs. In some cases, accommodation may not be
possible. However, the employer bears the burden of demonstrating that a
serious attempt to accommodate the employee was made.
Neither statutes nor the courts
have clearly defined undue hardship. The Supreme Court has ruled that an
employer need not incur more than minimal costs in order to accommodate an
employee’s religious practices. Trans
World Airlines v. Hardison, 432
U.S. 63 (1977). Nevertheless, an employer may not simply refuse to
accommodate an employee. If the employer claims that accommodation is not
feasible because it would result in undue hardship, the employer must
demonstrate an actual effect that accommodation would have on the
business. However, once the employer has reasonably accommodated an
employee’s religious needs, the employer need not consider the
employee’s alternative suggested accommodations if the employee’s
preferred accommodation would not cause undue hardship to the employer. Ansonia
Board of Education v. Philbrook, 479 U.S. 60 (1986).
Parallel to the duty imposed on
employers to accommodate the religious needs of their workers, employees
seeking to observe their religious beliefs and practices must help resolve
conflicts between job duties and religious needs. Thus, when an individual
accepts a job, he or she should indicate to the employer any religious
commitments that may conflict with work responsibilities.
Many employers have come to
realize that a commitment to religious accommodation can improve employee
morale by demonstrating that the company is sensitive to its religious
employees’ needs. Such accommodation in the workplace is one method of
retaining valued employees in the workforce just like “family
friendly” employee policies which help workers to balance the demands of
work and family.
AM I ENTITLED TO BE ABSENT FROM
WORK IN ORDER TO OBSERVE A RELIGIOUS HOLIDAY OR THE SABBATH?
The obligation that an employer
reasonably accommodate the religious needs of employees includes Sabbath
observance. Whether a method of reasonable accommodation can be devised
will mostly depend on the type of work involved and the size of the
employer’s workforce.
Some examples of possible
accommodation without causing “undue hardship” include voluntary
substitutions, flexible scheduling (allowing you to work on Sundays,
Christmas, or other national holidays), lateral transfers, and change of
job assignments. An employer could allow an employee who is a Sabbath
observer to work longer hours on Monday through Thursday to enable the
employee to leave early on Friday to be home for the Sabbath. The employer
must offer a reasonable” means of accommodating an employee.
In 1997, President Clinton issued
Guidelines on Religious Exercise and Expression in the Federal Workplace.
These Guidelines clarify the rights of civilian federal employees with
regard to religious exercise and expression in the workplace. In general,
the Guidelines provide that the federal government, in its role as an
employer, should accommodate the religious observances of employees so
long as that accommodation is consistent with workplace arrangements and
efficiency. (A copy of these Guidelines may be obtained from the OU’s
Institute for Public Affairs.)
For private employers, the duty to
accommodate does not require an employer to violate the seniority rights
of other employees. Trans World
Airlines v. Hardison, 432 U.S. 63 (1977). Re-assigning employees with
more seniority to a less desirable shift or task in order to accommodate
the religious observance of a holiday by a more junior employee is not
mandated by law. Further, under certain circumstances, it may be
impossible to reasonably accommodate an employee’s refusal to work on
the Sabbath without incurring undue hardship. For example, an employer
would not be required to train a part-time employee at substantial cost in
order to accommodate an employee who is unable to work on Saturdays.
Employees seeking to observe their
religious beliefs and practices share the responsibility to resolve
conflicts between job duties and religious needs. Thus, an employee should
indicate his or her religious commitment (leaving early on Fridays, not
working Saturdays, and being unable to work on holidays) at the time the
job is accepted or immediately upon becoming observant if he or she
becomes more observant while employed. Employees who are union members
should disclose their religious observance to their union representative.
IS AN EMPLOYER OBLIGATED TO
COMPENSATE YOU FOR YOUR ABSENCE FROM WORK FOR HIGH HOLY DAY WORSHIP AND
OTHER HOLIDAYS?
No. An employer is generally not
required to pay the employee for time taken off for religious observance.
The United States Supreme Court determined that allowing an employee to
take unpaid leave for the holiday observance would generally be deemed a
reasonable accommodation; however, such unpaid leave would not be a
reasonable accommodation when paid leave was provided for all purposes
except religious ones. Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986). In
addition, an employer is not required to pay premium or overtime costs in
order to accommodate the religious needs of employees, Some employers do
pay these costs by choice and it is certainly legal; however, this is up
to the employer.
Requiring employers to pay the
employee for taking time off for religious observances would most likely
impose an undue hardship on the employer under current court precedents.
As with Sabbath observance, an employee should indicate his or her
religious commitment, including absences for holidays, when the job is
accepted. Some states have laws requiring the employee to notify his or
her employer a certain number of days before each absence for holidays.
Moreover, the employee should arrange with his or her employer to take
religious holidays as vacation days, personal days, and/or unpaid personal
days.
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WEARING RELIGIOUS GARB OR SYMBOLS
DOES AN OBSERVANT JEW HAVE THE
RIGHT TO WEAR A YARMULKE IN THE WORK PLACE?
Employers must attempt to
accommodate employees who, for religious reasons, must maintain a
particular physical appearance or manner of dress in keeping with the
tenets of their religion. Again, accommodation is possible if it can be
made without undue hardship to the employer.
MAY AN EMPLOYER POSE QUESTIONS TO
A JOB APPLICANT REGARDING THE APPLICANTS RELIGION OR RELIGIOUS PRACTICES?
Questions concerning an
applicant’s religion or the religious holidays observed by an applicant
are totally impermissible. For example, an employer may not ask an
applicant: “Does your religion prevent you from working weekends or
holidays?,” or “What synagogue or church do you attend?” However,
during an interview an employer may describe the regular days, hours or
shifts of the job.
The employee has the
responsibility to inform the employer of any aspect of his or her
religious observance which will affect job responsibilities. For example,
if an employee must leave early on Friday and cannot work on Saturday, he
or she should indicate this when the job is accepted.
WHAT ARE MY RIGHTS WHEN AN
EMPLOYER SCHEDULES EMPLOYMENT-RELATED TESTS ON THE SABBATH OR HOLIDAY
An employer may not schedule tests
in a manner that totally precludes the participation of Sabbath observers.
As with the scheduling of work, the employer must attempt to accommodate
the religious needs of the employee or prospective employee. The
applicant, however, cannot be unreasonable in demanding accommodation. For
example, if the same test is being given in another location on another
day, the applicant may be required to travel to take it elsewhere. In
addition, the employee may be required to take personal time to complete
the test after business hours on the Monday following the scheduled test
date. The same law applies to schools and educational institutions
regarding final exams and other tests.
WHAT PROTECTION DO I HAVE AGAINST
RELIGIOUS HARASSMENT BY A WORK SUPERVISOR OR FELLOW EMPLOYEES?
Under Title VII, an employer has
an affirmative obligation to maintain a work environment free of
harassment, intimidation, and insult. The Supreme Court held that
harassment need “not seriously affect employees’ psychological well
being” in order to be actionable under Title VII “so long as the
environment would reasonably per perceived, and is perceived, as hostile
or abusive.” Harris v. Forklift
Systems Inc., 114 S. Ct. 367, 371 (1993). The employer’s obligation
extends to situations where he or she knows of the harassment or has
reason to know of it and does nothing to correct the situation. If fellow
employees are creating a
hostile work environment through religious harassment, the employee has an
affirmative obligation to notify his/her supervisor of the harassment. If
the harassment continues after the supervisor is notified, the employee
may file a complaint of discrimination against the employer with the
appropriate government agency.
An
important note:
The
rights described above are based on Federal law. Many states also have
laws which may provide additional protection for observant employees.
Moreover,
the Orthodox Union’s Institute for Public Affairs is working with other
organizations to press for changes in Federal law that would benefit
religious employees. The Workplace Religious Freedom Act, would overturn
the Supreme Court’s restrictive readings of Federal law. The thrust of
(“WRFA”) this legislation is to extend the privileges granted to
Federal Government employees through RFRA to the private sector. WRFA
would override the Court’s determination that anything greater than a
minimal cost constitutes undue hardship. Rather, the act would define
undue hardship as an act requiring “significant difficult or expense.”
Additionally, the act would give employees more flexibility in
proposing accommodations. Under its terms, an employer must accept an
employee’s suggested “reasonable accommodation” so long as it does
not cause undue hardship.
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