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Workers’ strongly held religious beliefs are increasingly coming into conflict with their employers’ policies — or with other employees’ beliefs and practices. Indeed, what one defines as “diversity,” another may deem to be “sin.” As a result, employers can find themselves acting as referees and even expose themselves to litigation in the process. What are employers’ legal responsibilities in this climate? The First Amendment obviously does not extend to private employers. But religious practices and beliefs in the workplace are protected by the antidiscrimination and accommodation provisions of Title VII of the Civil Rights Act. In-house counsel need to familiarize themselves with the issues and adopt appropriate policies before problems arise. Once a complaint has been made, counsel must clearly identify the problem before reacting, be ready to balance sometimes competing principles and interests, and be certain to avoid retaliation — or the appearance of it. Taking these steps will help employers resolve conflicts early on — and help reduce the risk of adverse decisions if things do reach the point of litigation. Recognizing the issues is the first important step. Religious conflicts in the workplace typically arise in one of two contexts: (1) The employee asserts beliefs or practices that conflict with the employer’s policies and requests a “reasonable accommodation,” or (2) the employee claims that because of his beliefs, he suffered an adverse employment action, harassment and/or retaliation. Situations that fall into the second category require the same analysis and modes of proof as other Title VII claims. The first category, however, presents some unique challenges. To present a claim, an employee must demonstrate: (1) a bona fide religious belief that conflicts with an employment requirement; (2) that he gave notice to the employer of this belief; and (3) that he suffered an adverse employment action as a result. The employer may then rebut one or more elements. Alternatively, it can show that it either offered a reasonable accommodation or that it was unable to accommodate the employee’s religious needs without undue hardship. Unlike disability claims, a hardship is considered “undue” if it would impose more than a “de minimis cost,” compromise a well-established and essential policy or procedure, or impose a burden on other employees. What constitutes a protected “religion”? According to the U.S. Supreme Court, much of the answer depends on the employee’s own characterization of his beliefs, whether or not they involve an orthodox belief in God or are instead purely “moral and ethical beliefs.” The key is that the beliefs are “held with the strength of religious conviction.” Only the “sincerity” of the belief can be questioned, not its “verity.” Adopting appropriate policies is the next step. Companies should have a nonharassment policy that includes religious issues as well as an antidiscrimination policy. These policies should lay out clear channels for communicating complaints. The best course is to direct employees to speak with human resources staff, not with immediate supervisors or other managers, who are untrained in handling such situations. Diversity policies are useful in resolving conflicts internally and in defending against claims. Wording is important, however. Such policies should emphasize mutual tolerance but not insist upon acceptance of others’ beliefs. In 2001 AT&T Broadband required its employees to sign a new diversity policy that stated that they would “fully recognize, respect and value the differences among all of us.” One employee refused to sign, was fired and sued. In April 2004 the court decided in his favor, reasoning that the company should not have required him to “value” behavior contrary to his religious beliefs or should have made it clear that the only requirement was to value diversity itself. Properly identifying problems before reacting can be critical. First, determine whether the issues are religious. Last year, the First Circuit U.S. Court of Appeals recognized face-piercing as a religious practice in the Church of Body Modification in Cloutier v. Costco Wholesale, 390 F.3d 126. In another case, a district court in Wisconsin recognized the “beliefs” of the white supremacist World Church of the Creator (which espouses the degradation of all non-whites). Thanks to this broad definition, most employers will not challenge the religious motivation of practices, except where the employees’ conduct has been clearly inconsistent. Likewise, notice is rarely an issue unless the employee first mentions his beliefs when disciplined. Courts have held that to be insufficient. Next, decide whether the situation falls under the conflict/accommodation rubric or whether it is a claim of harassment, discrimination or retaliation. The answer will determine the nature and scope of the ensuing investigation and resolution. For example, in a conflict/accommodation situation, you should focus primarily on finding a reasonable accommodation, since the Supreme Court has held that if this has been offered, it is the end of the inquiry. The next stage involves investigation, discussion and documentation. If you’re dealing with an adverse employment action or retaliation, first interview the employee regarding his complaint and beliefs. Then interview others about the events and how others similarly situated have been treated. In addition, carefully analyze whether there was any adverse employment action (i.e. a change in pay or status) and whether it was made “because of” the employee’s religion. In the conflict/accommodation area, although employers are not required to accept the accommodation requested by an employee, meaningful dialogue is key. When employees realize their beliefs are respected, they’re more likely to accept proposed accommodations. And even though such discussions do not supply a statutory protection from compensatory and punitive damages (unlike the Americans with Disability Act), courts and juries are far more likely to find for the employer and/or limit damages if there was dialogue. Also, companies should maintain thorough notes of all interviews. In a recent case involving a lesbian supervisor and a Catholic subordinate at Parkview Health System, the lack of contemporaneous notes about alleged anti-gay comments precluded summary judgment for the employer. Resolving the issues calls for careful analysis and balancing of sometimes competing principles. In the conflict/accommodation context, identifying and offering a solution that substantially meets the employee’s particular needs is, in most cases, the optimal result. Where the concern is not working on the employee’s Sabbath, offering to facilitate voluntary shift swaps with co-workers has been held sufficient. In cases involving garb and grooming issues, courts generally require companies to allow religious attire regardless of company dress codes unless there are safety issues. If the employee’s religious beliefs require him to proselytize, a duty to accommodate may still exist. But there is an important countervailing principle: Title VII does not require an employer to allow an employee to impose his religious views on others. Indeed, employees’ uninvited and strong expressions of religious views may be considered harassment. The Seventh Circuit decided that an employee of U.S.F. Logistics who felt compelled to say “have a blessed day” in company correspondence was adequately accommodated by being allowed to use the phrase with co-workers but not customers or vendors. An employee of Tulon Co. of Richmond felt the need to send co-workers letters accusing them of immorality. The Fourth Circuit held that this was not susceptible to accommodation. If an accommodation is identified but would involve “undue hardship,” be sure to document that conclusion. A district court jury in Tennessee recently agreed with Whirlpool Corp.’s demonstration that allowing 40 Muslim factory workers to perform sunset prayers simultaneously would be an undue hardship, since it would effectively shut down the factory line. Other courts, however, have not found “undue hardship” where the impact on the business would be inconvenient but manageable. If no accommodation can be found, the analysis and facts should be reconfirmed and the conclusion documented. Further, the conclusion should be clearly explained to the employee. Avoiding retaliation — and the appearance of retaliation — is the final step. As with other discrimination issues, even if the employee’s complaint is not well founded, taking any adverse action because of it can result in a viable retaliation claim. Indeed, religious discrimination claims generally require greater care because of the conflicting and sensitive issues they present. Charles Warner is a partner in the Columbus, Ohio, office of Porter Wright Morris & Arthur. This article was originally published in Corporate Counsel magazine, a Recorder affiliate based in New York City.

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