Connie Rehm, 51, worked as a library assistant in a small Missouri town, attending the same Lutheran Church where she married her husband more than 30 years earlier. Edward Rangel, 23, waited tables in Bellevue, Wash., practicing the Kemetic religion, an obscure modern revival of an ancient Egyptian faith.
While the two appear to have little in common, they both symbolize the same dramatic trend in workplace culture. And both of their employers landed in court, charged with religious discrimination.
As an increasingly diverse workforce brings with it once unheard-of religious rituals and employees from Judeo-Christianbackgrounds become more assertive about their beliefs, they are asking employers to bend rules and alter schedules to accommodate religious practices.
At the same time, the EEOC has stepped up enforcement of Title VII’s prohibition against religious discrimination. In 2005 the agency received 2,340 charges of religious discrimination and recovered $6.1 million for the injured parties.
All this is catching many employers by surprise, even though Congress amended Title VII to include the accommodation requirement for religious practices in 1972.
“It’s been 10-plus years since the ADA was passed, and employers know that they are required to accommodate employees with disabilities,” says Steven Anderson, partner in Faegre & Benson. “But it did not strike people that they were required to accommodate religious beliefs as well.”
Never On Sunday
Employees are most likely to request an accommodation when the necessities of a 24/7 business world collide with religious practices. Such was the case when the Rolling Hills Public Library in Missouri added Sunday hours in 2003.
A self-described “middle American, mild-mannered, small town library person,” Rehm and her husband observed Sunday as a day of worship and rest. She informed the library director in writing that the new hours conflicted with her religious beliefs, but the director scheduled her to work two, four-hour Sunday shifts in June 2003. When she refused to agree to that schedule, the director fired her for insubordination.
Rehm contacted the Christian Law Association, which provides free legal services to “Bible believing churches and Christians.” It filed suit on her behalf in federal court, charging the library with failure to accommodate her religious beliefs.
Attorneys for the library argued the director had asked other employees to volunteer for Rehm’s Sunday shifts, but got no takers. This created an “undue hardship,” they said, entitling the library to refuse Rehm’s accommodation request. The jury didn’t buy it. In May 2006 it found in Rehm’s favor, awarding her $53,700 in lost wages, and in July, a judge ordered her reinstated.
“Even if they can show undue hardship, employers would be well advised to make a reasonable accommodation,” says Melanie Glickson, associate at Nixon Peabody. “Be thoughtful, be creative and see if there is a way to make everyone happy.”
Showing willingness to communicate is often crucial in such cases.
“Entrance into a dialog with the employee is the most important thing you can do,” Glickson says. “Be respectful. Don’t show bias or hostility and examine each request case by case.”
Bias and hostility often surface when employers encounter atypical religions.
“Sometimes employers are skeptical a request is legitimate if it comes from a religion they are not familiar with,” Anderson says.
The EEOC defines religious practices broadly to include “moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views.” And it has shown its willingness to defend the rights of employees whose off-beat religious choices conflict with workplace policies.
For example, the EEOC took up the case of Rangel, whose Kemetic faith required him to display wrist tattoos containing a verse from an Egyptian scripture. The Red Robin Gourmet Burger restaurant chain where he worked has a policy against visible tattoos. But Rangel refused to conceal his, saying covering up the tattoos “is like killing the name of God.” His manager fired him in 2002.
The EEOC filed suit, alleging Red Robin refused to offer Rangel any accommodations for his religious practices. It also cited comments from the company’s former CFO that Red Robin has “Christian values.”
Red Robin, which settled the case in September 2005 for $150,000, maintained that making exceptions to its dress code would undermine its “wholesome image.” Before the parties settled, the court rejected that argument, holding that supporting an undue hardship claim requires more than hypothetical hardships based on unproven assumptions.
But most courts have established a lower threshold for proving undue hardship in religious accommodation cases than they have in disability accommodation suits. Courts also have found that employers aren’t required to impose undesirable shifts on other employees to fulfill an accommodation request.
In Farah v. Whirlpool Corp. , for example, a federal jury in Tennessee found in October 2004 that it would be an undue hardship to allow Muslim factory workers to take a break for their sunset prayers. Whirlpool noted that on one production line, 40 employees would have been off line at the same time, requiring it to shut down the line.
Walking The Tightrope
Even though the courts generally have been lenient with employers in religious accommodation cases, cultural norms are mitigating against efforts to bar religion from the workplace. Some Christian organizations encourage workers to form prayer groups, and organizations such as the Council on American Islamic Relations encourage Muslims to assert their right to pray at the required times, even if it interferes with their work schedules.
“The pendulum in the country is swinging toward people being more open in their practice of religion,” says Gil Abramson, partner in Hogan & Hartson. That means that religious accommodation requests–from kosher or halal food in the cafeteria to dress code issues such as head coverings and beards to religious affinity groups–are only likely to increase. As a result, employers need to refresh their policies and practices.
“I don’t think employers take religious accommodation seriously enough,” says Darlene Smith, of counsel at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo. “If you had an employee with a disability, you would go through the interactive process of discussing accommodation options and documenting each step. You want to do that here, too, whether you permit the accommodation or not.”
Abramson notes that religious accommodation can backfire if it goes too far and results in harassment. For example, if prayer meetings are held at the worksite, the employer should ensure those not participating don’t feel harassed or discriminated against.
“If the promotion of religion becomes offensive to co-workers, it must stop,” Abramson says. “Tell them to find another place to do it.”
While employers may have to walk a tightrope in protecting everyone’s rights, as with many employment issues, it all comes down to fairness.
“Consistency is important,” Anderson says. “You can’t be willing to accommodate one religion and not another.”