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Ms. Pohlid

Hospitality Law

Religious Discrimination and Accommodation in the Workplace

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

A woman wearing a hijab applies for position at your hotel's front desk, but you feel concerned this may make guests uncomfortable - can you offer her a position in the back office instead?

If employees, who are not members of any church, have deeply held moral views that prohibit them from ingesting meat or eggs, can you require them to take a flu-shot derived from eggs?

Weekends and holidays are busy times at your establishment and you need a full compliment of employees on staff - can you deny a religious accommodation to change an employee's schedule to attend church if this may lead the way for other employees to do the same?

These are a few of the questions that employers are facing as the workplace becomes increasingly diverse. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of their religious beliefs.

The failure to accommodate an employee's religious practices may constitute discrimination. Unless it poses an undue hardship, employers are required under Title VII to make reasonable accommodations to allow their employees to practice their religion. The Equal Employment Opportunity Commission (EEOC) enforces the religious anti-discrimination provisions under Title VII.

What is a "religion"?

The definition of "religion" under Title VII extends beyond organized religious groups. It may also include any moral or ethical beliefs that are sincerely held with the strength of traditional religious views. Under EEOC regulations, an employee's deeply held moral beliefs are entitled to accommodation unless the employer demonstrates that it would pose an undue hardship on the conduct of its business to do so. 29 C.F.R. 1605 et seq. This same obligation applies to labor organizations, employment agencies, labor-management committees, and apprenticeship and training or retraining entities.

The Supreme Court has distinguished "religious" beliefs entitled to constitutional protection as those which are "not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living." Under EEOC regulations, the obligation to make accommodation of religious practices extends beyond traditional religious beliefs and includes other deeply held beliefs even if "no religious group espouses such beliefs," or "the religious group to which the individual professes to belong may not accept such belief." 29 C.F.R. 1605.1. This broad definition has been applied to recognize the right of accommodation to employees for their sincerely held ethical beliefs that are not based on the tenets of a particular church.

For example, in 2012, a federal district judge in Ohio allowed an employee to proceed with her religious discrimination complaint against her employer based upon her deeply held vegan beliefs. The employee alleged that her employer illegally terminated her when she refused to take a flu shot derived from eggs. The employer asserted her veganism was merely a dietary preference and not a religious belief. However, the court rejected this position finding "it plausible that [the employee] could subscribe to veganism with a sincerity equating that of traditional religious views."

Examples of practices for which accommodation may be sought

Requests to accommodate time off to engage in religious observances are among the most common requests. Additionally, employees may request time to take a prayer break during work, accommodation for dress and personal grooming, and accommodation of dietary practices. In some instances, employees may request accommodation against compulsory membership in labor and other organizations. In such instances, the EEOC regulations state that an acceptable means of accommodation is to allow the employee to make a charitable contribution vice payment of dues. The obligation to provide accommodation extends to prospective as well as current employees. It is the obligation of the prospective or current employee to notify the employer of a religious practice for which accommodation is needed.

Elements of a claim for failure to make religious accommodation.

In order to establish a claim of failure to accommodate a religious practice, a plaintiff must show that (1) he or she holds a sincere religious belief that conflicts with an employment requirement; (2) the employer has been informed about the conflict; and (3) the employer took adverse action against the employee for failing to comply with the conflicting employment requirement. Once the employee has established these elements, the burden shifts to the employer to show that it could not reasonably accommodate the employee without undue hardship.

What is undue hardship?

Employers must make reasonable accommodation for employee's religious beliefs unless it would pose an undue hardship for the employer to do so. Undue hardship is defined as "more than a de minimis cost" in relation to the employer's size and operating costs and will include both economic and non-economic costs to an employer. The costs associated with rearranging schedules and recording substitutions for payrolls are typically regarded as de minimis. Employers are not required to make accommodations that would result in decreased efficiency of their operations or an increase their operating costs. Nor are employer's required to accept accommodations which impose additional burdens on other employees, that would result in denying job opportunities to other employees, or which would require the employer to pay premium compensation or overtime pay.

Undue hardship may include accommodations that pose a safety hazard or security threat. In EEOC v. GEO Group, Inc., the U.S. Federal Court of Appeals for the Third Circuit upheld the decision by a federal district judge in Pennsylvania who found that an employer satisfied the undue hardship defense where an accommodation would pose a security threat. The case involved a group of Muslim female employees who worked for a private company that provides security personnel for prisons. The prison had a dress code policy that prohibited employees from wearing of head coverings. The employees filed a religious discrimination complaint alleging the prison violated their civil rights by refusing to accommodate them with an exception to the prison's dress policy that would allow them to wear religious head coverings, or khimars, at work. The court held that the accommodation would pose an undue threat to security by facilitating the concealing of contraband or that they could be used as a weapon of strangulation.

Factors which do not qualify as an undue hardship.

Although many employers may claim that the accommodation of an employee's request will open up the flood-gates of requests for accommodation from many more employees, this assertion will not support an undue hardship claim. The EEOC and courts will focus on the specifics of the individual's religious practice, the reasonable accommodations that can be made, and whether those accommodations pose an undue hardship.

Additionally, employers cannot justify their failure to accommodate an employee's religious practice based upon their concerns for customer preferences. Therefore, an employer cannot legally refuse to accommodate an employee's religious practice solely because they are concerned that it may make their customers uncomfortable if they do so.

Accommodation Policies.

It is crucial for employers to have a policy statement that they will make reasonable accommodation of religious practices unless it poses an undue hardship for them to do so. All employees should be informed of this policy and of the ways in which they are to request an accommodation if necessary. This process should start the interactive process for an employer to assess the accommodation alternatives available.

The EEOC recognizes that in some cases, the alternatives provided to employees for them to accommodations their religious practices may result in posing a disadvantage to the employee with respect to their opportunities or terms and conditions of employment. If there is more than one method of accommodation available that would not pose undue hardship to the employer, the alternative that would offer the least disadvantage to the employee must be offered.

Accommodations to an employee's work schedule are a common means for employer's to facilitate employee religious practices. In many instances, this is done voluntarily amongst employees. However, the EEOC contends that employers and labor organizations have an obligation to facilitate the voluntary substitute and swap process. Employers can facilitate this process by informing employees that they have a policy to make reasonable accommodation of their employees' religious practices and that this may include voluntary substitute and swaps in employee scheduling. Employers can set up bulletin boards and other means of communication to facilitate the employee's request for scheduling substitutions.

Employers can also accommodate employee's religious practices through flexible scheduling policies to include flexible shift start and stop times, optional holidays, use of lunch in exchange for late or early departure, and allowing employees to make-up time off taken.

The obligation for an employer to make reasonable accommodation is an ongoing obligation. If initially there is not a reasonable accommodation available without undue hardship, but at a later point a reasonable accommodation becomes available which would not pose an undue hardship, employers are obligated to provide it. For example in Jiglov v. Hotel Peabody, a Tennessee federal district judge held that a hotel discriminated against a Russian orthodox employee when it fired the employee for not reporting to work as scheduled. Initially, the court found that the employer had a legitimate basis for refusing to allow the employee to take off the entire day off to celebrate Easter dinner as part of his orthodox religious practice. Doing so would have required the employer to pay another employee overtime since the other employee was scheduled to do an important equipment repair. However, when the equipment repair was cancelled, the undue hardship no longer existed and the other employee was available to fill-in without overtime implication. Although the court found that the employer could have facilitated the substitution, it did not do so.

The court also rejected the employer's argument that it was not required to accommodate the employee's request because his time off for Easter dinner was not an actual religious requirement. The court found that the employee established that his observance was a matter of his religious belief that consisted of a church service, a special blessing by the priest over the family Easter meal, and prayer with family members.

Courts have also distinguished an employee's request for accommodation to engage in a religious observance, which is generally entitled to accommodation, from a religious observance that could be made at any time and at a time of the employee's own choosing, which is deemed a matter of personal preference. For example, in 2011, a federal district judge in Pennsylvania held that a hospital did not violate an employee's right to religious accommodation when it denied his request for time off to make a second pilgrimage to Mecca in December of 2006. The employee did not timely submit his request for time off and another employee had submitted a prior request for vacation time during that period. Although the court recognized that the employee's request was for a legitimate religious observance, it determined that the scheduling of the employee's trip for that period was a matter of personal preference. The employee primarily sought to take advantage of an opportunity to travel at a reduced price as part of a larger group and could make the pilgrimage the following year. The hospital was not required to make accommodation for the employee's preference in the timing of his second pilgrimage.

As workplaces becoming increasingly more diverse with employees from different cultural and religious backgrounds, it is important for employers to anticipate requests for religious accommodation. The first step in doing so is to develop workplace policies addressing this obligation and to ensure that employees and supervisors are trained in those policies.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV® rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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