Religious diversity has been increasing in the U.S. population and its workforce, presenting greater opportunities for mutual learning and understanding. However, it's also unfortunately coincided with increasing levels of harassment and discrimination. According to the Equal Employment Opportunity Commission (EEOC), the period from 1997 to 2015 saw a two-fold increase of workplace complaints involving religion.
In one higher-profile case, Abercrombie & Fitch refused to hire a religious job applicant because, while she never requested a religious accommodation, a manager determined that her headscarf would’ve conflicted with company's dress policy. In deciding that case, the Supreme Court held that the company violated anti-discrimination laws merely from a motivation to avoid future religious accommodations.
Given the broadening scope of employer liability in religious discrimination cases, it's important for your corporate clients to understand their obligations under the law.
What Is Religious Discrimination?
Most religious discrimination cases against businesses arise under federal or state law as the First Amendment only protects against government discrimination. Under the Civil Rights Act, however, private businesses with at least 15 employees are prohibited from:
- Discrimination based on religious beliefs or practices in any aspect of employment
- Harassment based on religious beliefs or practices
- Denying reasonable religious accommodations unless it would cause an undue burden
- Retaliating against individuals engaging in protected activity (such as filing complaints)
Federal laws against religious discrimination also protect individuals with non-traditional beliefs or practices and those with atheistic views as long as their views are sincerely held. Unless it's an unusual situation, it's probably a good practice for your clients to take their employees' word when it comes to their belief system.
When Are Employers Liable for Religious Discrimination?
Employers are always liable when employees suffer from religious discrimination resulting in a tangible employment action. However, in other cases, employers are liable for religious discrimination when it creates a hostile work environment where they knew or should have known of the discrimination and failed to take prompt and appropriate action. In these cases, businesses can limit or avoid liability if:
- They exercise reasonable care to promptly prevent or correct harassing behavior
- The claimant unreasonably failed to take advantage of preventive or corrective opportunities
It's a good practice for your clients to intervene quickly to address religious discrimination or harassment in the workplace. Sometimes, waiting for a complaint to take action may be too late, especially if the conduct has already created a hostile work environment that may also be impacting other employees.
Reasonable Accommodations and Undue Hardship
Under federal law, employers must provide reasonable accommodations for sincerely held religious beliefs or non-beliefs. Common types of accommodations include:
- Revising schedules or using voluntary substitutes with other employees
- Revising an employee’s tasks
- Lateral transfers
- Exceptions to dress and grooming rules
- Allowing work facilities to be used for religious observances
Note that where multiple reasonable accommodations are available, your clients aren't required to provide the one preferred by the employee. Your clients also don't need to provide reasonable accommodations if it would cause undue hardship, that is, one that imposes more than a de minimis cost. This is a fact-specific determination that's made on a case-by-case basis, but can be based on the direct monetary costs of an accommodation as well as its burden on a business. Courts will typically find undue hardship where religious accommodations:
- Diminish the efficiency of other employees
- Create an imbalance of hazardous or burdensome work in the workplace
- Infringe on other employees’ job rights or benefits
- Impair workplace safety
It's important to advise your clients that, when it comes to religious accommodations, they should explore mutually convenient alternatives, but also document the costs and impact of such accommodations on other employees and the business itself.
Religious Liberty Rights for Closely Held Corporations
In addition to protecting religious freedoms of employees, federal law also protects the religious rights of certain corporations. With its Hobby Lobby decision in 2014, the Supreme Court ruled that closely held corporations can be exempt from laws on religious grounds if a less restrictive means is available. If you represent owners of closely held religious corporations, it's important to advise them of these protections.
Learn More about Religion in the Workplace
For more information and resources on religion in the workplace and religious discrimination see the Equal Employment Opportunities Commission's compliance manual. For more information on representing corporate clients, see FindLaw's Corporate Counsel Center.