LAW RE­QUIRES REA­SON­ABLE AC­COM­MO­DA­TION OF RE­LI­GIOUS BE­LIEFS, PRAC­TICES

The Oklahoman - - ENERGY - PAULA BURKES, BUSI­NESS WRITER

Q: Ti­tle VII of the Civil Rights Act of 1964 pro­hibits dis­crim­i­na­tion in em­ploy­ment on the ba­sis of an in­di­vid­ual’s re­li­gion. It pro­tects all as­pects of re­li­gious ob­ser­vance and prac­tice, as well as be­liefs, and ap­plies to prospec­tive em­ploy­ees and ex­ist­ing em­ploy­ees. To what ex­tent must an em­ployer ac­com­mo­date re­li­gious be­liefs in the work­place?

A: The re­quests for ac­com­mo­da­tion must be rea­son­able. Many re­quests are easy to ac­com­mo­date, such as the wear­ing of a hi­jab, wear­ing a skirt in­stead of jeans, ad­just­ing a work sched­ule to ac­com­mo­date the Sab­bath, or a spe­cial re­li­gious ob­ser­vance. Em­ploy­ers who refuse to con­sider rea­son­able ac­com­mo­da­tions of­ten make the news. Re­cently, the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion (EEOC) an­nounced that it set­tled two re­li­gious ac­com­mo­da­tion law­suits, both of which in­volved re­quests by Pen­te­costal Apos­tolic em­ploy­ees to be per­mit­ted to wear skirts in­stead of the pants and blue jeans that were re­quired by their em­ploy­ers’ re­spec­tive dress codes. You may re­call the EEOC law­suit against Aber­crom­bie & Fitch over its re­fusal to hire a young, qual­i­fied Mus­lim wo­man who wore a hi­jab be­cause it did not be­lieve she would present the im­age con­sis­tent with its brand. An­other em­ployer was sued be­cause it fired a Je­ho­vah’s Wit­nesses em­ployee, who was a server at a res­tau­rant, for fail­ing to sing “Happy Birth­day” to a cus­tomer, be­cause it was not per­mit­ted by her re­li­gion.

Q: When is a re­li­gious ac­com­mo­da­tion re­quest un­rea­son­able?

A: If the ac­com­mo­da­tion would cause an un­due hard­ship for the em­ployer, the ac­com­mo­da­tion is not re­quired. The un­due hard­ship can be shown if ac­com­mo­dat­ing the em­ployee’s re­li­gious prac­tices re­quires more than or­di­nary ad­min­is­tra­tive costs, di­min­ishes ef­fi­ciency in other jobs, in­fringes on other em­ploy­ees’ job rights or ben­e­fits, im­pairs work­place safety, causes co-work­ers to carry the ac­com­mo­dated em­ployee’s share of po­ten­tially haz­ardous or bur­den­some work, or if the pro­posed ac­com­mo­da­tion con­flicts with an­other law or reg­u­la­tion. Em­ploy­ers aren’t re­quired to change their op­er­a­tions to im­ple­ment an ac­com­mo­da­tion.

Q: What con­sti­tutes a re­li­gion?

A: The am­bi­gu­ity of “re­li­gion” can put em­ploy­ers in dif­fi­cult po­si­tions. Re­li­gion is per­sonal and sub­jec­tive, and, as a re­sult, Ti­tle VII’s pro­tec­tion ex­tends to a sin­cerely held be­lief. Re­li­gion need not be an or­ga­nized or tra­di­tional re­li­gion, such as Chris­tian­ity, Catholi­cism, Ju­daism or Is­lam. It does not need to be from rec­og­nized teach­ings. It doesn’t re­quire iden­ti­fi­ca­tion with a God or de­ity; athe­ism also is pro­tected un­der Ti­tle VII. Con­gress has de­fined re­li­gion in the con­text of an­other fed­eral law as a be­lief in a re­la­tion to a supreme be­ing in­volv­ing du­ties su­pe­rior to those aris­ing from any hu­man re­la­tion.

Q: What are the con­se­quences of an em­ployer’s fail­ure to ac­com­mo­date a re­li­gious be­lief?

A: Re­li­gious dis­crim­i­na­tion law­suits can in­volve claims by prospec­tive em­ploy­ees of fail­ure to hire be­cause of the in­di­vid­ual’s re­li­gion. They can in­volve claims by ex­ist­ing em­ploy­ees for dis­crim­i­na­tion with re­spect to terms and con­di­tions of em­ploy­ment, such as a re­fusal to pro­mote, trans­fer or pro­vide a raise. They can in­volve claims of fail­ure to ac­com­mo­date spe­cific needs for re­li­gious ob­ser­vance. They also can in­volve claims of a hos­tile work en­vi­ron­ment on the ba­sis of re­li­gion. Po­ten­tial re­cov­ery can in­clude re­cov­ery of back pay, com­pen­satory dam­ages, puni­tive dam­ages and at­tor­ney fees.

Kathy Neal is a la­bor and em­ploy­ment lawyer with McAfee & Taft.

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