Handling workplace religious discrimination and harassment

Few issues are as personal and potentially divisive as religion. Controversies generated by the “war on terror,” the abortion debate and other moral and ethical questions sometimes spill over into the workplace. But what responsibility does an employer have to accommodate employees’ religious rights and practices?

The short answer is: Quite a lot.

The right to be free from religious discrimination in the workplace is embedded in Title VII of the Civil Rights Act as well as state civil rights laws. This obligation to keep the workplace free from religious bias and harassment can raise a number of hot-button issues:

  • Must an employer provide an area for employees to pray?
  • Can an employer prevent employees from placing religious greetings on business e-mails or voice mails?
  • Under what circumstances can an employer prohibit employees from wearing the clothing or accessories of their faith?

What constitutes “religion”?

Before employers’ civil rights obligations are triggered, employees must first demonstrate that their beliefs constitute a “religion.” The U.S. Supreme Court has defined religion as “a sincere and meaningful belief which occupies in the life of the possessor a place parallel to that filled by God.” (United States v. Seeger, 380 U.S. 163, 1965) Under this test, courts ask whether a belief “functions as” religion in the plaintiff’s life.

A belief system does not require a belief in God, a supreme being or afterlife, or derive from any outside source — so purely “moral and ethical beliefs” can be religious “so long as they are held with the strength of religious convictions.” (Welsch v. United States, 398 U.S. 333, 1970). This definition encompasses far more than traditional religions.

As long as plaintiffs sincerely hold the belief and consider it to be religious, the court will find the belief is religious regardless of whether others find it comprehensible, logical or acceptable.

Thus, virtually any belief system constitutes religion. With such a broad definition, employers should tread lightly. Religious-discrimination claims find support across the spectrum of judicial and political persuasion. If it meets the definition of religion, employers must reasonably accommodate the belief system.

Religious harassment

To establish a religious-harassment claim, an employee must demonstrate that he or she is a member of a protected class subjected to unwelcome harassment due to religion.

The conduct must be severe and pervasive enough to create an environment that a reasonable person would find hostile, and that the employee subjectively believed to be abusive or hostile. The hostility need not be directed against one’s religious beliefs; proselytizing for some other religion also may be hostile — unwelcome religious discussions, invitations to attend religious services or simply extensive displays of religious symbols at the employee’s workstation.

Employers can insulate themselves by taking prompt and corrective action. To hold an employer liable for co-workers’ harassment, plaintiffs must show that the employer knew or should have known of the harassment and that the employer unreasonably failed to take prompt and appropriate corrective action.

Politics and religion

The line between political and religious beliefs has always been a thin one. When dealing with a potential religious-discrimination claim, employers should assume that any sincere belief system, no matter how political the issues may appear, could fall within the broad legal definition of religion. While employers must reasonably accommodate employees’ religious practices, they are not required to endure even a de minimis hardship to that end.

Although employers cannot tolerate consistent negative remarks regarding any particular religion in the work force, they also must guard against over-zealous religious proselytizing, which may create a hostile-work environment for those with differing belief systems.

Reasonable religious accommodation

An employee claiming discrimination under an accommodation theory must demonstrate: 

  • He or she holds a sincere religious belief that conflicts with an employment requirement.
  • The employer has been informed of the conflict.
  • The employee experienced some adverse employment action for failing to comply with the conflicting employment requirement.

If the plaintiff makes this showing, the burden then shifts to the employer to demonstrate that it initiated good-faith efforts to accommodate the employee’s religious practices, or that it could not reasonably accommodate the employee without undue hardship in the conduct of its business. Generally, an employer has considerable ability to restrict religious expression in the workplace. Courts determine on a case-by-case basis whether or not an accommodation is reasonable or an undue hardship.