Religious Discrimination in the Workplace

Religious discrimination in the workplace is any employment-related action that impacts employees differently, either positively or negatively, because of their religion, beliefs, or spiritual practices. It also applies if employees are negatively affected because they ask for a reasonable accommodation for those beliefs. This extends to those who have no religious beliefs or practices at all.

The law prevents discrimination against those who belong to recognized and familiar groups, like Christians, Muslims, and Jews, but it also protects those who hold sincere feelings toward religion, ethics, and morality but are not affiliated with any organized church or religion. Even if no official organization exists, that does not mean it's not legitimate. If the belief is sincerely held, it does not matter if others understand or follow it.

If a person is not hired, or they're fired or otherwise harmed in their employment because they hold a particular faith or no faith, then they may be experiencing workplace discrimination. Also, if the employee requests a reasonable accommodation and that request is denied, then discrimination may be happening.

Sometimes if a person is experiencing religious discrimination, they may also go through other types of illegal discrimination based on factors such as national origin, citizenship status, or race.

Religious discrimination at work can happen in three main ways. One is basing an employment decision on religion. This could take the form of a hiring or firing decision or promoting or not promoting someone based on religion. Here are some examples:

  • Deciding not to hire an applicant because he/she observes the Sabbath on Saturday
  • Firing an employee for missing work due to a religious holiday
  • Promoting someone on the condition that they start attending church
  • Reassigning someone to a less public position because you think her hijab makes people uncomfortable
  • Refusing to give an employee a raise until he stops using his free time to try to convert his co-workers

The second is when an employee is harassed in the workplace. Here are some examples of this:

  • Teasing employees or disciplining them for being out of dress code for wearing a religious adornment like a turban or yarmulke
  • Mocking an employee for his faith
  • Poking fun at a Muslim staff member who doesn't eat pork
  • Allowing fellow employees to try to convert an atheist employee at work

Finally, the third is when the employer fails to offer a reasonable accommodation. This is the most common form. A "reasonable accommodation" is often referred to as a change in a workplace rule or policy that allows an employee to engage in religious practice without conflicting with work obligations. Employers must do this unless it causes an undue hardship, meaning it's too expensive or too hard to do.

The Equal Employment Opportunity Commission (EEOC) interprets an undue hardship as something that costs more than normal to administer, impacts efficiency or safety, infringes on another employees' rights, or puts an extra burden on other employees who must shoulder the work. It's also an undue hardship if the accommodation conflicts with other laws or regulations.

Employers can show an undue hardship in the case of changing a seniority system if accommodating one employee's religious practices denies another employee the job or shift preference otherwise guaranteed by the seniority system. In this case, it may be best for the employee to ask co-workers to swap shifts. The employee can also ask the employer to let him/her make up the work at other times, or maybe move into another position that doesn't require working on the days in question.

Here are some examples of failures to accommodate:

  • Requiring an employee to work on his/her Sabbath when other employees are willing to swap shifts
  • Forcing someone to remove her hijab but allowing others to wear baseball caps at work
  • Refusing to allow employees to have religious symbols on their desks or at their workstations but allowing other personal items, like family pictures

Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act of 1964 protects people from this type of discrimination. This piece of legislation:

  • Outlaws religious discrimination in hiring, firing, promoting, compensating, and training
  • Requires employers to offer a reasonable accommodation unless doing so creates an undue hardship. Some possible accommodations are flexible scheduling, allowing employees to swap shifts among themselves, and permitting lateral transfers.
  • Clarifies that employers cannot require employees to take part in or force them to sit out of religious activities as a condition of employment
  • Mandates that employers do all they can to prevent harassment by other employees
  • States that employers may not retaliate when an employee asserts his/her Title VII rights

In addition to the federal law, most states have their own statutes related to religious discrimination. Some states also provide more protections that go beyond those required under federal law.

The Religious Freedom Restoration Act, or RFRA

The Religious Freedom Restoration Act or RFRA passed in 1993 and stated that if the federal government passes any law that interferes with the free exercise of religion, then the government must show that:

  • The new law serves a "compelling interest"
  • The least restrictive method is used to meet that interest

Twenty states have their own versions of this law, some set by the governing bodies and some through court precedent. Consult your state's labor department to find the exact language for your state.

Enforcement of the Law

The Equal Employment Opportunity Commission (EEOC) is the department within the federal government that looks into claims of religious discrimination or a lack of reasonable accommodation. They have authority over employers who have 15 or more employees. Also, every state has an agency of its own to enforce state laws.

Who is Protected by the Law?

All private employers, state and local governments, and educational institutions are covered, as long as they have 15 or more employees. Private and public employment agencies, labor organizations, and joint labor management committees who control apprenticeships and training are also under this umbrella. While states have their own laws, the parameters of who is covered will vary. It's important to remember that both applicants and current workers are protected.

Avoiding Religious Conflicts at Work as an Employee

Employees must take some responsibility for managing conflicts between work and their faith. For starters, employees should tell the employer as soon as they know about a conflict or potential conflict. Clarity goes a very long way to avoid problems. Employees should always make the request in writing with an explanation and a suggestion about what would be a reasonable accommodation. Staff and employers should keep all correspondence in case it's needed for clarity later.

What to Do in Case of Religious Discrimination

If an employee is denied a request for a reasonable accommodation, he/she can file a grievance. Most employers offer this process, and if the employee is a member of a union, then a union official can help with the filing.

Most employers have a policy for handling disputes like this, which can be found in the employee handbook or other personnel policies. The Human Resources department can give guidance too.

Employees should be aware that even if he/she is pursuing a grievance with the employer, deadlines to file suit administratively or in court still apply.

Employer's Responsibility for Religious Accommodations

A recent Supreme Court decision held that even if an applicant or an employee does not tell the supervisor up front about a religious practice, but the employer knows or suspects that an accommodation may be necessary, then they must make the accommodation. This is true even if it's inconsistent with other company policies. This is a new standard, as in the past, employees had to first ask for the accommodation. Remember that the employer only has to do this if it doesn't cause an undue hardship.

Getting Time Off on Religious Holidays or Days of Worship

When the employee notifies the employer that he/she needs to be off for religious observance, this is a request for a religious accommodation. Employers must give the accommodation unless they can show that it would be an undue hardship on the business, meaning it would be too expensive or too hard to do.

The possible accommodations depend on the type of work and the workplace. Sometimes employees can use lunch or breaks for religious activities. If an employee does miss work, the employer can require that the time is made up, and the time off does not have to be paid. Employers may require the use of vacation time or any other paid time off except for sick time. Employers must give time off for the Sabbath or holy days except in an emergency unless the employee works in key health and safety occupations or the employee's presence is critical to the company on any given day.

Retaliation for a Request for Religious Accommodation

Retaliation happens when a harmful action is taken against an employee because he/she took part in a protected activity, like asking for a reasonable accommodation or filing a complaint. Title VII prohibits retaliation. This type of claim is prevalent; in recent years, more than 37 percent of all EEOC claims contained a retaliation charge. In 2006, a Supreme Court ruling broadened the definition of retaliation, so the number of these cases is growing. Employers may be guilty of retaliation even if the original charge is unfounded. If an employee believes he/she is the victim of retaliation, he/she should follow internal company procedures.

Religious Discrimination During Job Interviews

Testing, screening, and other types of hiring activities cannot be scheduled in conflict with an applicant's religious activities unless the employer demonstrates that doing otherwise is an undue hardship. Employees do not have to share that the scheduling conflict is for a religious reason. They may just say they are unavailable.

Employees do have some responsibility to make the employer aware of possible conflicts, and they should do this after the offer is made when accepting the position. If new conflicts arise later, they should notify the employer as soon as possible.

It's not a good practice to ask about availability on certain days because this may screen out applicants of certain faiths. The best way to gather this information is to share with the applicant the normal working hours for the job. Then the employer should tell the applicant that they are not required to disclose the need for religion-related absences. Then the employer may ask if the applicant is available to work the regular hours. The employer can ask about the need for accommodation after making the offer.

Religious Discrimination in the Workplace

The applicable laws require that the employee's beliefs are "sincerely held." Employers may question this law if the employee suddenly can't work on Sundays after a change in policy that makes Sunday work more lucrative. In that situation, the employer has the right to ask for more information. Some appropriate questions might be:

  • Which religion does this come from?
  • How long have you been involved with this faith?
  • Has your level of involvement with these beliefs changed recently?

Employers should not go overboard, but employees should be ready to answer these questions especially if the conflicts are new.

There are some types of employers who are exempt from the laws related to religious discrimination. Religious corporations, associations, educational institutions or societies can hire only people who follow a particular faith to "perform work connected with the carrying on by such corporation, association, educational institution or society of its activities." An example of this is a Christian school that requires all teachers to be members of a Christian church.

Recently some court cases have held that discrimination against employees at these organizations is legal. Specifically, two cases involved gay employees who were fired because that orientation was inconsistent with the faith of the organization. The courts upheld the employer's right to make those terminations. It's notable that these were states without anti-discrimination laws on the books. These employers must still show that all employees similarly situated are treated the same.

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