Employers need to keep their eye on a growing trend: a groundswell of support for more freedom to practice religion in the workplace. And support for the movement is coming from some unexpected quarters: the U.S. Supreme Court and a bipartisan coalition of U.S. senators.
Supreme Court: In one of the first rulings by the new Roberts court, the justices ruled unanimously that importing and taking peyote, an otherwise illegal drug with no known medicinal purpose, could be a "religious experience" protected by the Constitution.
Also, the newest justice, Samuel Alito, is already known for his strong support for reasonable religious accommodations in the workplace. While Alito served on the 3rd Circuit Court of Appeals, he ruled in favor of police officers who refused to follow a clean-shave directive on religious grounds.
Congress: Among the hottest religious-discrimination proposals is a bid by Sens. Rick Santorum (R-Pa.) and Ted Kennedy (D-Mass.) to push the Workplace Religious Freedom Act. If passed, the bill would increase the religious-accommodation burden for U.S. employers.
5 steps to compliance
Currently, Title VII of the Civil Rights Act says it's illegal for employers to discriminate against applicants or employees due to their religion. The law covers employers of 15 or more people. (Some state laws apply religious-bias rules to even smaller employers.)
To comply with the federal Title VII law, follow these guidelines:
1. While it's obvious that you can't refuse to hire an applicant because of his or her religious affiliation, other discrimination is more subtle. For example, you can't refuse to assign a certain employee to a favorable shift because you fear his or her religious needs will cause an absence problem.
2. Don't push any one religion. Employers can't force employees to participate in a religious activity as a condition of employment. Conversely, they can't punish employees for participation in a religious activity.
3. Don't limit religious expression. Permit employees to engage in religious expression unless it would impose an undue hardship on your organization.
4. Accommodate sincere beliefs. Employers must accommodate employees "sincerely held" religious beliefs or practices unless they create an undue hardship.
Examples: Accommodations can include changing an employee's schedule to allow her to attend a religious service, allowing voluntary schedule swaps with co-workers and modifying workplace rules, such as dress or grooming requirements to accommodate religious beliefs.
Just last month, the EEOC sued UPS for refusing to hire a Rastafarian as a driver because of his beard, which he wore for religious reasons.
5. Prevent harassment. You must take steps to prevent religious harassment of employees and stop it when you become aware it has occurred.
What's a 'sincere' belief?
For employers, one of the most difficult parts of this law lies not in the logistics of accommodations, but in defining religion and religious practices. If you're required to accommodate employees' sincerely held religious beliefs, how can you tell what's sincere and what's not?
The EEOC doesn't require employees to actually be card-carrying members of a religion to hold sincere beliefs of that religion and earn protection under the law.
That may explain why the EEOC recently supported a young Costco employee's lawsuit in which she claimed discrimination against her religious belief in body piercing. She said she belonged to the Church of Body Modification, a religion that espouses body piercing as an expression of faith.
The 1st Circuit Court of Appeals eventually dismissed the case, and the Supreme Court refused to intervene. But that was in 2005, before Alito and Roberts joined the court, and before the justices decided that taking peyote was a protected religious practice.
Bottom line: For now, use common sense when it comes to accommodating religion. Don't try to analyze whether an employee's belief is sincere or not; when in doubt, accommodate. If the Workplace Religious Freedom Act should pass, your responsibilities to accommodate will likely increase. We'll keep you informed.
Online resources on religious discrimination:
- EEOC: www.eeoc.gov/types/religion.html
- Employment Law Information Network: www.elinfonet.com/fedindex/18
- Justice Department: www.usdoj.gov/crt/religdisc/religdisc.html
Note: For suggestions on accommodating the special religious needs of Muslims, Arabs, South Asians and Sikhs, go to www.eeoc.gov/facts/backlash-employer.html.
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