Religious Discrimination, Reasonable

Accommodation for Religious Beliefs and

Religious Practices in the Workplace

Awo Sarpong Ansu

Senior Attorney-Advisor
US Equal Employment Opportunity Commission
Office of Field Programs
202-663-4611
[email protected]

Legal Requirements

Title VII of the Civil Rights Act of 1964 prohibits agencies from
discriminating against individuals because of their religion in hiring,
firing, and other terms and conditions of employment.

The Act also requires agencies to reasonably accommodate the

religious practices of an employee or prospective employee, unless
to do so would create an undue hardship upon the agency.
Ministerial Exception:
Title VII does not apply to employment
of clergy: First Amendment Free
Exercise Clause

Definition of Religion

The Commission defines "religion" to include moral or ethical beliefs

about right and wrong that are sincerely held with the strength of
traditional religious views.

Religious discrimination also includes discrimination against

someone because s/he is an atheist.

WHICH ONE OF THESE IS A RELIGIOUS BELIEF

PROTECTED BY TITLE VII?

Sally does not eat meat or dairy products because she believes that
God created and equally values all living beings, that animals
possess souls, and that it is immoral and unethical for humans to kill
and exploit animals. She believes that milking an animal forcibly
removes some of its life energy, a component of the soul.

Mary does not eat meat or dairy products because she believes that
consuming them causes cancer and other diseases. She also
believes that the meat and dairy industry is politically powerful and
has persuaded the government to conceal the facts from the public .

WHICH ONE OF THESE IS A RELIGIOUS

BELIEF PROTECTED BY TITLE VII?
Sallys beliefs are religious because they are
part of a comprehensive moral or ethical belief
system about life, purpose, and death that are
sincerely held with the strength of traditional
religious views.
Marys beliefs are not religious because they are
based on her view of medicine and politics
rather than on a comprehensive moral or ethical
belief system.

Religion - Nature of Practice or

Belief

In most religious discrimination cases whether or not a practice or belief is religious is

not at issue.

In cases in which the issue does exist, the Commission will look at the sincerity of the
persons beliefs

Be mindful that a persons religious beliefs may change over time, individuals may
choose to adhere to some tenets of their religion but not others, or they may have a
sincere belief in a particular religious practice, even if that practice is not observed by
other followers of their religion.

Employment Discrimination
Based on Religion

Disparate Treatment
Harassment
Disparate Impact
Reasonable Accommodation
Be mindful of
the
differences!

Disparate Treatment
When a complainant alleges that the agency treated another
individual better than it treated him/her or otherwise treated him/her
differently because of that individuals religious beliefs.

Religious organizations may

prefer members of their own
religion for positions which
are religious in nature

Three-Part Process
The three-part process in a disparate treatment case
involving circumstantial evidence:
1.

Complainant presents a basic (prima facie) case:

Basis(es) (such as race, sex, religion, etc.)
Adverse action occurred
A connection between the two

2.

Agency provides a reason for action.

3.

Complainant shows agencys explanation is not true

and is a pretext for discrimination.

Disparate Treatment
Janet, a social worker, works for an agency
which provides tuition reimbursement for
college credits leading to a B.A. in sociology.
Janet, who practices Native American spirituality,
applies for a sociology class that focuses on
spirituality and culture. Janets supervisor
denies her request for tuition reimbursement on
the grounds that the employer shouldnt pay for
employees to study voodoo. Is this unlawful
disparate treatment?

Disparate Treatment
By refusing to provide the tuition
reimbursement solely because of the
religious content of the class, Janets
supervisor has discriminated against her
on the basis of religion.

Disparate Treatment
Beta Corporation requires all of its employees to attend
diversity training. Joanne believes that some of those
teachings are contrary to her fundamentalist Christian
beliefs. When Joannes supervisor refuses to excuse
her from the sessions, she goes but sits in the back and
reads her bible. Joannes supervisor issues her a letter
of reprimand for insubordination for not paying attention
during the mandatory training, but does not discipline
other employees who didnt pay attention. Is this
unlawful disparate treatment?

Disparate Treatment
While the employer may ordinarily require employees to
attend training sessions, it may not discipline employees
who do not participate in them for religious reasons, or
who express their opposition through religious activity,
more harshly than it disciplines other non-participating
employees.
Note: The supervisor
may have to
accommodate Janet

Disparate Impact
The complainant alleges that an agencys
neutral policy or practice adversely affects a
protected class.
The burden shifts to the agency to show
business necessity.
The complainant may rebut business necessity
by showing other means available to achieve the
same objective with less discriminatory impact.
Not a
frequent
claim.

Harassment

Title VII of the Civil Rights Act of 1964 prohibits harassing or

otherwise discriminating based on:
Affiliation: because an individual is affiliated with a particular religious
group.
Physical or Cultural Traits: because of physical, cultural or linguistic
characteristics such as accent or dress associated with a particular
religion.
Perception: because of the perception or belief that a person is a
member of a particular religious group, whether or not that perception is
correct.
Association: because of an individuals association with a person or
organization of a particular religion.

Harassment

Anti-harassment principles apply to religion just as to harassment on other protected

bases, such as race, gender or national origin.
Law protects employees from being subjected to a hostile work environment, i.e., an
environment tainted by intimidating, abusive ridicule or insult based on religion.
Title VII also requires employers to permit employees to practice their religion, which
may include engaging in religious expression, unless the expression imposes an
undue hardship.

Balance: Protect employees

right to religious expression
while protecting others from
harassment

Harassment
Harassment is unwelcome offensive
conduct in the workplace where:
1) enduring the offensive conduct
becomes a condition of continued
employment, or
2) the conduct is severe or pervasive
enough to create a work environment that
a reasonable person would consider
intimidating, hostile, or abusive.

Harassment
Wamiq was raised as a Muslim but no longer
practices Islam. His supervisor, Arif, is a very
devout Muslim who lectures Wamiq about
abandoning Islam and advises him to follow the
teachings of the Koran. Arif denies Wamiq a
promotion, saying that Wamiq would never be a
Khalipha (divinely inspired leader). Arif also
says that Wamiq could improve his prospects by
joining Arif and other Muslims for weekly prayer
sessions in Arifs office. Wamiq does not heed
Arifs advice and ultimately is fired by Arif. Is this
unlawful harassment?

Harassment
Arifs conduct indicates that the promotion
was denied because of Wamiqs failure to
participate in the prayer sessions and
practice Islam. Absent evidence that the
promotion denial was for some other
reason, the employer is liable for
conditioning Wamiqs employment on his
adherence to Arifs views of appropriate
religious practice.

Harassment
During a conversation with her supervisor, Aimee reveals
that she is new to the area and does not know many
people. Aimees supervisor responds that there are
many people Aimees age at the supervisors church and
invites Aimee to visit the church on Sunday. Is this
unlawful harassment?

Harassment
Title VII is not implicated. This invitation
cannot reasonably be perceived to be
coercive and is not made a condition of
employment.
Caveat: Supervisor
needs to be very
careful!

Harassment
Beths colleague, Bill, repeatedly talked to
her at work about her prospects for
salvation. For several months, she did not
object and discussed the matter with him.
However, he persisted even after she told
him that he had crossed the line and she
didnt want to have anymore non-work
related conversations with him.

Harassment
When Beth tried to put an end to her
conversations with Bill, his conduct
became unwelcome. The employer must
intervene if it is aware that Beth has asked
that the conduct stop and Bill persists.

Harassment
Conduct Must be Sufficiently Severe or Pervasive to Constitute Harassment
Marvin is an Orthodox Jew who was hired as a radio show host. When he started
work, his co-worker, Stacy, pointed to his yarmulke and asked, Will your headset fit
over that? On a few occasions, Stacy referred to the yarmulke as a beanie. For
example, she said Nice hat. Is that a beanie? Do you have a propeller for it? Do they
come in different colors? Although the comments about Marvins yarmulke were
offensive, they were neither severely hostile nor sufficiently frequent to create a work
environment hostile to Jews.
Betty is a Mormon. During a disagreement regarding a joint project, a co-worker,
Julian, told Betty that she didnt know what she was talking about and that she should
go back to Salt Lake City. When Betty subsequently proposes a different approach to
the project, Julian tells her that her suggestions are as flaky as he would expect
from her kind. When Betty tries to resolve the conflict, Julian tells her that if she is
uncomfortable working with him, she can either ask to be reassigned, or she can just
pray about it. Over the next six months, Julian regularly makes negative references
to Bettys religion. His persistent offensive remarks create a hostile environment.

Harassment
One Instance of Physically Threatening Conduct May be Enough to
Constitute Hostile Environment
Ihsaan is a Muslim. Shortly after the terrorist attacks on September
11, Ihsaan came to work and found the words Vengeance for the
victims scrawled in red marker on his office door. Because of the
timing of the statement and the implicit physical threat, this incident,
alone, is sufficiently severe to constitute hostile environment
harassment.

Religion and Reasonable

Accommodation

Under Title VII, an agency has a duty of reasonable accommodation for sincerely held religious
beliefs and practices unless to do so would cause an undue hardship.

As a general rule, the reasonable accommodation requirement arises most often in cases where
an individual is seeking time off for religious observances

Unlike the other protected

groups under Title VII, religion
includes an affirmative
requirement on the part of the
agency: the duty of reasonable
accommodation.

Prima Facie Failure to Accommodate

Religion Case
A Complainant may present a prima facie case by showing:
That s/he holds a religious belief that conflicts with an
employment requirement.
That s/he informed his/her superior of the conflict; and
That s/he has been penalized for failing to comply with
employment requirements.

Undue Hardship
An agency can avoid its accommodation
obligation only where it shows that an
accommodation would constitute an
undue hardship
In terms of religious accommodation,
undue hardship can mean a significant
cost or other non-cost factors, such as
office disruption.

Undue Hardship - Costs

An agency may assert undue hardship to justify a refusal to accommodate
an employees need to be absent from his or her scheduled duty hours if the
agency can demonstrate that the accommodation would require more than a
de minimis (minimal impact on agencys business) cost.
The Commission will determine what constitutes more than a de minimis
cost while giving due regard to:
the identifiable cost in relation to the size and operating costs of the agency,
and
the number of individuals who will in fact need a particular
accommodation.

Undue Hardship - Seniority Rights

Undue hardship would be shown where a
variance from a bona fide seniority system is
necessary in order to accommodate an
employees religious practices when doing so
would deny another employee his or her job or
shift preference guaranteed by that system.
Arrangements for voluntary substitutes and
swaps do not constitute an undue hardship to
the extent the arrangements do not violate a
bona fide seniority system.

Accommodating Religious Practices

My name is Laini Luthuli and I am a Muslim. Muslims perform five prayers a day.
Each prayer does not take more than a few minutes to perform. Prayers are
performed at dawn, noon, mid-afternoon, sunset, and night. Muslims may pray almost
anywhere, such as in fields, offices or factories. I went to this agencys personnel
office to respond to a newspaper ad for 100 temporary flat sorter machine operators,
but I left without applying because of the sign that was posted on the office door.
Here, I copied it down so that you can read what the sign says.
ATTENTION: THERE WILL BE NO EXCEPTIONS TO THIS POLICY
The duration of employment for temporary flat sorter machine operators will not
exceed 12-months. Salary is fixed at $12.00 per hour. Applicants for this position must
be available to work flexible day, evening, and night shift schedules, and they must be
willing and able to work up to 40 hours per week in 4 to 10 hour shifts daily, at the
discretion of management. If you are selected for this position, you will receive one
(1), hour unpaid lunch break during each work day that exceed 6 hours, and two
(2)15-minute paid breaks per 8-hour work day. To minimize disruption to the flat sorter
machine operation and to maximize use of equipment, all flat sorter machine
operators must break concurrently while the flat sorter machine is being serviced.
Accommodation
Means Making
Exceptions

Accommodating Religious Practices

My name is Daniel Steel and I am a
Roman Catholic. I asked my manager,
Rob, if I could take annual leave on Good
Friday so that I could go to church. Rob is
also a Roman Catholic so I was surprised
when he denied my request. His
reasoning? When I asked, Rob told me
that our faith does not require Catholics
to refrain from working on Good Friday.

Accommodating Religious Practices

My name is Salomon Silvers. Please, call me
Sal. I have to speak with you, because I dont
know where else to go. I asked my supervisor if I
can take annual leave next Friday afternoon so
that I can attend religious services. He
responded, I cant give you leave on that
afternoon because its Christmas eve. Im having
enough problems trying to replace the Christians
who want leave on that date. It sounds to me
as though the manager is telling me that Im not
entitled to the same consideration as other
employees. Is he correct?

Alternatives for Accommodating Religious

Practices that Conflict with Work Schedules

Voluntary Substitutions and Swaps

Flexible Scheduling

Arrival
Departure
Floating or Optional Holidays
Flexible Work Breaks
Use of Lunch Time in Exchange for Early Departure
Staggered Work Hours
Permitting Employee to Make Up Time Lost due to
Observance of Religious Practices
Lateral Transfer and Change of Job Assignments

Accommodating Religious Practices

Some reasonable religious accommodations that agencies may be
required to provide workers include:

Leave for religious observances

Providing Time and/or place to pray
Ability to wear religious garb
Accommodating certain hairstyles or grooming
habits
Honoring dietary requirements during meetings
or training sessions where meals are served
Permitting time-off during a mourning period for
a deceased relative

Accommodating Applicants for Employment

Unless it can show that not doing so would

result in undue hardship to the agency, an
agency cannot:
Schedule examinations or other selection
activities in conflict with religious needs
Make pre-selection inquires to determine
an applicants availability to work during
the agencys scheduled working hours
Refuse to allow observance of a Sabbath
or religious holiday.

Guidelines on Religious Exercise and Religious

Expression in the Federal Workplace

On August 14, 1997, the White House issued Guidelines that apply
to all civilian executive branch agencies, officials and employees in
the Federal workplace. The Guidelines principally address the
religious exercise and religious expression of employees whose
work areas are not regularly viewed by the public.
The general principle in the guidelines is that agencies must treat all
employees with the same respect and consideration, regardless of
their religion or lack thereof.

Religion in the Workplace

Strive for balance