By: Anne-Marie L. Storey, Esq.
Depending on an employer’s size, its employees are protected from religious discrimination in employment by state and/or federal law. The term “religion” is defined fairly broadly under these laws and includes “moral and ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” This definition covers both traditional and nontraditional religious observances.
An employer must provide reasonable accommodation of covered religious practices. In the hospitality industry, these accommodation requests often take the following forms:
Absence from work:
A request for absence on a day of religious significance may be accommodated by seeking volunteers to fill the employee’s shift, allowing the employee to switch shifts with other employees, or allowing the employee to take leave without pay or to use accrued leave. Some courts have held that a reasonable accommodation does not necessarily mean allowing an employee to decide when she will or will not work and have been reluctant to substitute its business judgment for that of the employer in terms of whether the employee is necessary to work on a particular day for business reasons.
Wearing certain clothing or facial hair: An employer may need to accommodate these types of requests even if they violate and/or require an exception to a general dress code. However, the reason for the employee’s actions must be because of religion and not personal preference. In addition, if the request creates a violation of a safety policy or procedure, that may be a legitimate reason to deny the requested accommodation. For example, an employer may not be required to accommodate such requests where it would prevent the employee from wearing required respirators, hard hats or other safety equipment with a proper fit.
Proselytizing during work:
An employee may be able to use certain religious phrases in communicating with co-workers or even customers, especially where an employer cannot demonstrate a loss of business or a significant number of complaints resulting from such conduct. However, an employer may not be required to accommodate such behavior if it causes a disruption of the workplace or specific complaints from customers.
Although an employer must try to provide reasonable accommodation of an employee’s religious belief or practices, it need not do so if it results in an undue hardship, which exists when an employer incurs anything more than a de minimus cost. Some requests that have been found to be an undue hardship include accommodations that violate a bona fide seniority system, violate a collective bargaining agreement, or constitute a refusal to perform certain duties. Of course, each situation will be unique and these are simply some general guidelines for responding to such a request.
Employers should be aware that an applicant and employee’s religious beliefs and practices may well be protected by state and/or federal law and that reasonable accommodation of those beliefs or practices may be necessary. This is true even if the requested accommodation violates an established dress code or other policy, with the possible exception of a safety policy or practice. If and when an employee makes such a request, it should be carefully analyzed and the employer should engage in an interactive discussion with the employee about the requested accommodation. In most cases, the request and the response should be documented. Employers must also remember that providing one form of reasonable accommodation does not necessarily end their obligation; each request must be analyzed separately and fully.
For more information contact Anne-Marie at astorey@rudmanwinchell.wpenginepowered.com