Religious Discrimination

The basic rule in preventing employment discrimination on the basis of religion is simple. An employer must reasonably accommodate the religious observances of employees and prospective employees, unless doing so would cause undue hardship, or unless not doing so can be justified by "business necessity."

What is "reasonable" must be determined on a case-by-case basis. "Undue hardship" also varies in different situations - it means something more than just inconvenience, but something less than having to tailor your entire business around one fellow's divinely inspired need to avoid all forms of work.

To sue, an employee must show that a bona fide religious belief of the employee conflicted with an employment policy, that the employer was informed of the conflict; and that the employee was penalized in some way because of the conflict. The employee must, in some jurisdictions, also show that he or she has offered the employer some way to accommodate his or her religious observance.

If the employee can prove these facts, then the employer has the burden of proving that an effort was made to make an accommodation. If the employer tried to accommodate but could not, the employer must show that this failure was because accommodation would create undue hardship.

The law protects all aspects of religious practice and belief. An employee does not have to be a member of an established religion to be protected. Even strange or purely personal beliefs are protected, so long as they are sincere. However, insincere or pre-textual claims of religious beliefs are not protected. This creates problems for courts. Whether an employee can take the day off for the Festival of the Grand Pooh-Bahs depends on whether the employee has just initiated this ancient tradition to get out of work.

From these rules, you can see that to avoid lawsuits, you WILL have to tailor your work rules to the religious needs of your employees, to some reasonable degree. Simply having "the same rules for everyone" is not good enough. For example, requiring everyone to take Sundays off but not allowing Saturdays off might seem to be acceptable, but actually this would have profoundly discriminatory effects on some people. Uniform work rules which have unintentionally discriminatory effects rules are just as illegal as intentionally discriminatory rules. The only exception is where uniform rules can be justified as a "business necessity."

Naturally, employers have tried to justify uniform work rules by claiming all sorts of things as "business necessities." They have argued that making exceptions would result in employee discontent, or that making exceptions would violate a collective bargaining agreement. These arguments have, for the most part, been unsuccessful.

Generally, if your employees need to take a different day off as their Sabbath, you will have to let them, unless you can show that undue hardship will result as a result.

Similarly, if your employee's religion requires a distinctive garb of some kind, you will have to accommodate requests to wear that garb, unless you can show a business necessity for uniform work rules regarding appearance. For example, if an employee's religion requires wearing a beard, the employer must show a neutral, valid, nondiscriminatory reason for asking him to remove it. There must be a valid justification such as safety or health behind rules requiring particular dress or hairstyles.

There is one principle that is completely without any ambiguity. You cannot refuse to hire or promote someone because of their religion or religious beliefs.

There are of course limits on the protection of people's religious practices. There have been cases where one employee is disrupting the workplace by preaching and proselytizing. You must accommodate someone whose religion requires them to do this, but you are not required to allow them to bring all work to a halt. This can be an extremely difficult situation for an employer.

On the other hand, there are cases where employers have tried to compel their employees to attend religious services. This is also unacceptable. Also, you cannot verbally abuse someone or discriminate against them in the terms and conditions of employment because they belong to another religion.

However, churches and religious corporations are exempt from some of these rules. Another exception exists where religion constitutes a bona fide occupational qualification for a particular job.

Copyright 1996 David Trieloff, Esq.

Mr. Trieloff passed away on April 16th, 1998 and is sadly missed by the staff of the Business Know-How where he was a member of the volunteer staff.