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Dec 17, 2013

By Carmon M. Harvey

Here we are again.

The dreidel has been made, dried, and played. The city sidewalks are busy and dressed in holiday style. It’s time for toys and time for cheer.

Yada, yada, yada. The holidays are here.

But not everyone may be feeling in the holiday spirit, as believers and non-believers alike are feeling less and less like their right to believe (or not believe) is respected in the workplace. And I’m not just talking about Santa Claus.

Seeing religious discrimination on the job

According to What American Workers Really Think About Religion: Tanenbaum’s 2013 Survey of American Workers and Religion, a study published earlier this year by the Tanenbaum’s Center for Interreligious Understanding based on a poll of over 2,000 American workers about their experiences with religious discrimination at work, more than one-third of workers have observed or been subjected to religious discrimination in the office.

The study also revealed that more than half of workers believe that Muslims are discriminated against in the United States, 60 percent of atheists believe people look down on their beliefs, and 60 percent of white evangelical Protestants believe that discrimination against Christians is as problematic as discrimination against other religious minorities.

So much for freedom of religion, huh?

Employers, with some regularity, have to deal with requests for accommodation of disabilities, and many employers have efficient systems in place to handle such requests. But, when presented with an employee who wears his or her religion on their proverbial sleeve, or who requests a religious accommodation, employers often are at a loss as to what to do in response.

Should employees be permitted to display religious artifacts in their cubicles and offices? Can employers refuse to hire or fire an employee who doesn’t seem to “fit in” as a result of his or her religious practices? Must an employer permit an employee to proselytize or pray at work if it is required by that employee’s religion if it makes the employee’s coworkers uncomfortable?

An uptick in religion-based EEOC charges

As a general rule, absent an undue hardship, an employer must accommodate the sincerely held religious beliefs of employees.

Unlike requests for accommodation related to disabilities, however, the threshold for the undue hardship in this context is far lower: essentially the employer may decline to accommodate an employee’s sincerely held religious belief or practice if the accommodation would result in more than a deminimus impact on the employer financially, or more than a deminimus imposition on the requesting employee’s co-workers.

Given the relative legal ease with which employers can deny requests for religious accommodations, along with employees’ general sentiment that their religious beliefs (or lack thereof) are not being respected in the workplace, it is not surprising that we’ve recently seen an uptick in the number of religion-based EEOC charges filed and an increasing a number of Title VII religious discrimination cases in the news.

One of the most prominent examples of that was the collection of cases against Abercrombie & Fitch this year by or on behalf of employees who were either not hired or terminated for wearing or refusing to remove their hijabs (religious headscarves). Abercrombie had claimed that the hijab violated its “Look Policy” and that permitting employees to wear it was an undue hardship because it would harm the company brand. To date, courts and the EEOC have uniformly found that this “hardship” is not undue.

In another example that came out the other way, a federal judge in Nebraska found in October that it would be an undue hardship both in terms of cost and negative impact on its employees for a beef processing plant employer to accommodate the request of its approximately 200 Somali-born Muslim employees to take additional breaks for prayer time.

Regardless of whether employers agree with all of their employees on the reason for their season (no matter what time of year), they must evaluate any request for religious accommodation to determine whether the accommodation is reasonable or if it will present an undue hardship.

If they don’t, they may end up turning the 12 days of Christmas into the 12 days of trial.

This was originally published on Montgomery McCracken’s Employment Law Matters blog.