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Could we have refused to hire waitress who now refuses to sing ‘Happy Birthday’?

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in Discrimination and Harassment,Human Resources

Q. One of the waitresses working in our restaurant claims her religion forbids her from singing “Happy Birthday” to customers. If, during her interview, we had identified this requirement as an essential job function, and if she said she couldn’t sing the song for religious reasons, would we have been within our rights to refuse to hire her?

A. Probably not. Both the Minnesota Human Rights Act and Title VII of the federal Civil Rights Act prohibit religious discrimination. Title VII also requires employers to reasonably accommodate an employee’s religious beliefs, observances and practices unless the employer can demonstrate that doing so would create an undue hardship.

An employee need only show that the belief is religious and that it is sincerely held to trigger the duty to accommodate.

Your employee’s beliefs aren’t unprecedented. Many Jehovah’s Witnesses, for example, adhere to their religion’s nonobservance of birthdays and holidays.

Once an employer is made aware of an applicant’s bona fide religious beliefs, the employer should analyze whether the accommodation is reasonable and whether providing it would pose an undue hardship. The application of these concepts will depend upon your workplace.

In the case of an employee who refuses on religious grounds to sing “Happy Birthday” to customers, factors to analyze might include the type of restaurant, the number of times in an average day this is necessary and whether there are difficulties in having other employees fill in.

Establishing undue hardship is the employer’s burden of proof, and without strong evidence that singing “Happy Birthday” is an essential function of the job or would impose undue hardship, it would be risky to refuse to hire someone whose religious beliefs forbid it.

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