As we leave the 2019 Holiday Season, employers may be questioning whether they adequately accommodated various religions practices among their employees. Accommodations for religious practices often arise during the holiday season in two major contexts: (1) time off for religious observances; and (2) religious expressions in the workplace. Unfortunately, there are no bright-line rules to guide employers. With this employment law commentary, we provide some general principles to help employers better understand their obligations to provide religious accommodations.
The Right to Religious Accommodation Under Federal Law
The primary federal law requiring employers to accommodate their employees’ religious practices is Title VII of the Civil Rights Act of 1964 (“Title VII”), which applies to all employers in the U.S. with 15 or more employees. Under Title VII, employers cannot discriminate against employees and applicants based on their religious practices or beliefs. Title VII is administered and enforced by the Equal Employment Opportunity Commission (EEOC). The EEOC has promulgated additional regulations further specifying an employer’s obligations to provide religious accommodations and has also produced numerous other publications that further clarify both the act and the regulations.
For purposes of Title VII, religion includes “sincerely held” religious, moral, or ethical beliefs related to “ultimate ideas” about “life, purpose, and death,” including those that are not part of a well-known or organized religious tradition and those based on atheist or agnostic beliefs. In addition to prohibiting discrimination, Title VII requires employers to provide reasonable accommodations to employees and applicants whose religious beliefs and practices require some variance from the employer’s policies and practices so long as those accommodation do not cause an “undue hardship” to the employer. Common examples of accommodations include time off, schedule changes, transfers to new job positions, or exemptions from certain clothing or appearance policies. Generally, an accommodation causes an undue hardship if it would impose more than a de minimis cost upon the employer’s operations, including monetary costs and other effects on efficiency, safety, and other employees. The standard for undue hardship applicable to religious accommodations under Title VII is lower than, and should not be confused with, the standard for reasonable accommodations for disabilities required by the Americans with Disabilities Act (ADA) and other state laws.
Despite this relatively low standard, employers must make an effort to offer accommodations that are reasonable and not overly burdensome. Employers should not rely upon existing policies alone if an employee expresses concern that those policies do not accommodate their religious beliefs or practices. Employees do not always have to actually request an accommodation for their religious practices or beliefs. Once an employer becomes aware of a conflict between the employee’s religious beliefs and the employer’s work requirements, the employer generally should engage in an interactive process with the employee to determine whether an accommodation can be made.
If it believes that an employee’s requested accommodations would cause undue hardship, the employer should identify and offer alternatives to the employee that eliminate the conflict between the employer’s policies and the religious practice or belief. If none of these alternatives are found to suffice, the employer should only reject the employee’s proposals to the extent it can demonstrate that those requests will cause an undue hardship. Employers should document their efforts to identify accommodations and their reasons for rejecting any proposals made by their employees. It is important that the employer, when rejecting a requested accommodation, explain what costs the proposed accommodation would impose or how the accommodation would negatively impact the work environment, other employees, or customers, and the employer should inform the employee of these concerns so that both sides can consider possible alternatives.
Time Off for Religious Observance
One of the most common accommodation requests for religious reasons is time off for religious observance. Many faiths require that their adherents regularly commit time to certain practices at particular times of day or on particular days of the week. Others may observe annual holidays that entail participation in customary or ceremonial practices that conflict with performing work on those days.
Numerous courts have addressed the right to time off in observance of religious practices. Whether providing an employee with time off will cause an undue hardship on an employer varies substantially based on the frequency of the request, the size of the employer, the nature of the work, and the availability of other employees. An employer’s obligations under a union contract may also be a factor in whether a requested accommodation will be unduly burdensome. For example, accommodating an employee’s request that requires giving preferential treatment that conflicts with the rights of other employees based on seniority may not be an accommodation an employer needs to provide. On the other hand, labor organizations are also prohibited from discriminating on the basis of religion and have an obligation to provide reasonable religious accommodations.
Typically, employers may attempt to accommodate religious requests for time off through many their policies, such as existing paid time off or vacation policies, permitting employees to trade shifts with other employees, providing alternative shift schedules, or even offering alternative job positions. Generally, failure to accommodate claims are not successful when the employer can show that it has offered an employee a combination of options to comply with the employee’s religious needs that go beyond the employer’s existing policies. In cases where the employer offered only one means of accommodating an employee’s religious practice or has relied only on existing policies, however, the employees’ claims have tended to survive summary judgment.
In one case, for example, an employer was able to show undue hardship at the summary judgment stage when an employee sought additional time off because the employer permitted the employee to take more half-day vacations than allowed by a collective bargaining agreement and actively worked to schedule the employee for shifts that would not conflict with the employee’s observation of the Sabbath in addition to vacation days, floating holidays, voluntary shift swaps with other employees, and unpaid leave time provided under existing policies. By contrast, in another case, where the employer would not modify its existing vacation policy to accommodate the employee’s time off request for religious reasons, the court found that the employer could not show either that its offered accommodation was reasonable or that any further accommodation would cause an undue hardship at the summary judgment stage.
Religious Expression in the Work Place
Another common accommodation issue is the amount and form of religious expression that must be permitted in the workplace. Religious expression can come in many forms, including verbal expressions, office decorations, attire, and grooming. Whether a religious expression must be accommodated depends upon the content and context of that expression; simple religious greetings shared among welcoming employees are more likely to warrant accommodations than lengthy diatribes to unreceptive clients and customers. Although employers may be required to permit some forms of proselytization, religious salutations, or exceptions to their dress code, if other employees or clients are disturbed or feel harassed by such conduct, the employer may be able to deny the request because it imposes an undue hardship. For example, at least one court has held that employers need not grant exceptions to their anti-harassment policies for employees who use religious quotations to advocate anti-LGBTQ views. Another court has also held that permitting employees to use religious salutations with some clients, such as “Have a Blessed Day,” but not with those clients who had expressed discomfort, was a reasonable accommodation.
With respect to grooming, employers generally have had to show that an employee’s non-conforming grooming practices pose some sort of safety-related risk, such as violation of a health or safety code. So, for example, employers have been able to show an undue hardship in multiple cases where an employee’s facial hair prevented that employee from being able to properly use face masks as required by applicable health and safety laws for him to perform his job.
A Brief Note Regarding State Law
In addition to the requirement to provide religious accommodation under federal law, several states have laws that require religious accommodations. Though many of these laws often follow accommodation standards similar to federal law, some states apply different standards. For example, the California Fair Employment and Housing Act (FEHA), as amended by the Workplace Religious Freedom Act of 2012, applies to employers with five or more employees, rather than only those with 15 or more. Under FEHA, the test for undue hardship requires a showing of “significant difficulty or expense.” California law specifically requires that an employer explore “any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the person’s religious belief or observance or permitting those duties to be performed at another time or by another person.” California law also specifically states that accommodations that require segregating employees are not reasonable.
Given the possible variation among religious accommodation tests, it is important to be mindful of the possible effect of state law when assessing accommodations.
Given the complexities and nuances of accommodating religious beliefs and practices for employees and applicants, employers should consider developing well-defined procedures for handling such accommodations. These procedures can take many forms, but generally employers should keep the following points in mind when crafting such procedures:
- Train managers and human resource personnel on addressing religious accommodation practices of employees.
- Whenever there is a possible conflict between an employee’s or applicant’s religious practices and the employer’s policies, employers should consider engaging in the interactive process to explore possible accommodations;
- Assign designated personnel trained in religious accommodations to handle the interactive process to try to identify reasonable accommodations that will not cause an undue hardship to the employer and that are consistent with other accommodation requests; and
- Create different standards and procedures for states, such as California, that have more stringent tests for religious accommodations.
Even with robust accommodation procedures in place, some religious accommodation requests will still perplex employers. In those instances, consider consulting with counsel before rejecting the proposed religious accommodation.
 42 U.S.C. § 2000e et seq.
 29 CFR § 1605.2.
 See “Questions and Answers: Religious Discrimination in the Workplace,” available online at https://www.eeoc.gov/policy/docs/qanda_religion.html; EEOC Compliance Manual, “Section 12: Religious Discrimination,” available online at https://www.eeoc.gov/policy/docs/religion.html.
 29 CFR § 1605.1.
 42 U.S.C. § 2000e(j).
 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).
 See E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).
 Opuku-Boateng v. California, 95 F.3d 1461.
 Virts v. Consolidated Freightways, 285 F. 3d 307.
 42 U.S.C. § 2000e-2(c).
 See, e.g., E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 315 (4th Cir. 2008).
 See Jacobs v. Scotland Mfg., Inc., No. 1:10CV814, 2012 WL 2366446 (M.D.N.C. June 21, 2012).
 See, e.g., Banks v. Serv. Am. Corp., 952 F. Supp. 703 (D. Kan. 1996); Rivera v. Choice Courier Sys., Inc., 2004 WL 1444852 (S.D.N.Y. June 25, 2004).
 See, e.g., Wilson v. U.S. West Communications, 58 F.3d 1337 (8th Cir.1995) (holding that requirement that employee cover up graphic images was a reasonable accommodation).
 Peterson v. Hewlett-Packard Co., 358 F.3d 599, 604 (9th Cir. 2004).
 Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 476 (7th Cir. 2001).
 See, e.g., Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382, 1384 (9th Cir. 1984); EEOC v. Sambo’s of Georgia, Inc., 530 F. Supp. 86.
 Cal. Gov’t Code § 12940.
 Cal. Gov’t Code §§ 12926(u).
 Cal. Gov’t Code § 12940(1)(1).
 Cal. Gov’t Code § 12940(l)(2).