Religious Accomodation in the Workplace: Your Rights and Obligations

Religious Accomodation in the Workplace: Your Rights and Obligations

By The Union of Orthodox Jewish Congregations of America; Institute for Public Affairs

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 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 even 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 which 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.

A. RELIGIOUS LEAVE

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 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.

B. 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.

C. OTHER LEGAL ISSUES

MAY AN EMPLOYER POSE QUESTIONS TO A JOB APPLICANT REGARDING THE APPLICANT'S 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 be 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 difficulty 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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