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Oh ye of little faith, count yourselves in the minority. According to a recent Gallup Poll, Americans are more religious now than 10 years ago. And religious diversity is increasing, with more than 1,500 distinct religious denominations and faith groups now in the United States. Many Americans fill their everyday lives with rituals, prayers and observances that they feel bring them into contact with the divine — whether at home, at play, or at work. As faith takes on greater significance for more and more Americans, employers and employees are struggling to understand what it means to respect religious convictions in the workplace. AN EMPLOYER’S DUTY How is an employer to reconcile employees’ religious needs with a company’s business goals? What accommodations does the law require? Can an employee really do the job if he or she can’t work on Saturdays? This was the issue many Americans pondered when Joe Lieberman ran for vice president in 2000 and announced his intention not to do the job when it conflicted with practicing his Judaism. May an employer scope out a potential employee’s religious beliefs during a job interview? May someone wear an anti-abortion pin every day to work because of her religious convictions if it makes other employees uncomfortable? What about group prayer at work? Unfortunately, there are no easy answers to these questions and no bright line tests in this area of the law. LEGAL PRINCIPLES Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e-2(a), and state and local laws prohibit discrimination based on religion in all aspects of employment. Many claims of religious discrimination arise from the alleged failure of an employer to accommodate an employee’s religious observance. Title VII provides that an employer has a duty to reasonably accommodate an employee’s or prospective employee’s religious observances, practices and beliefs unless the employer can demonstrate that the accommodation would result in an undue hardship for its business. 42 U.S.C. � 2000e (j); 29 C.F.R. � 1605.2(b)(1). The term “religion” means all aspects of religious practice as well as belief. 42 U.S.C. � 2000e(j). Religious practices include “moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious views.” 29 C.F.R. � 1605. What is a religion anyway? And what falls within “sincerely held” beliefs? Courts interpret these terms broadly. Even an action that may appear to the employer to be politically motivated may be an expression of an employee’s sincerely held religious belief. This was the case in Wilson v. U.S. West Communications, where an employee took a religious vow to wear an anti-abortion button depicting a fetus at all times, including at work. Even though the button espoused a political message, the 8th U.S. Circuit Court of Appeals held that wearing the button was motivated by “a sincerely held belief that was religious in nature” and, therefore, the employer’s duty of reasonable accommodation was triggered. UNDUE HARDSHIP The U.S. Supreme Court has held that, in the context of a request to accommodate an employee’s religious practices, an accommodation that results in more than a de minimus cost to the employer imposes an undue hardship. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63. The Equal Employment Opportunity Commission, the agency that administers Title VII, determines what constitutes more than a de minimus cost with regard to the “identifiable cost in relation to the size and operating cost of the employer.” Courts generally agree an employer is not required to interfere with the job preferences of other employees to accommodate one employee’s religious observance. Seniority rights pursuant to a collective bargaining agreement trump a request for reasonable accommodation for religious practice in the workplace. The accommodation the employer offers does not have to be the one the employer most prefers. Paying overtime is generally an undue hardship where its purpose is to obtain a replacement for an employee taking leave to accommodate the employee’s religion even where the replacement is found among current staff. Likewise, paying premium wages to hire a replacement for the days while such leave is requested is generally not required. Paid time off is not required to meet the requirement of reasonable accommodation because under the more-than-de-minimus cost test, it would be an undue hardship for the employer. The majority view is that the law does not require an employer to provide paid time off for Jewish and Muslim employees; for instance, for their religious holidays even where the employer’s holiday schedule includes paid time off for Christmas and Good Friday, thereby accommodating and appearing to benefit Christian employees’ religious beliefs. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60; Greenfield v. Miami Beach, 844 F. Supp. 1519. The seminal case defining the standards for religious accommodation in the workplace is Trans World Airlines, Inc. v. Hardison, wherein the U.S. Supreme Court held that the employer did not violate Title VII by failing to excuse Hardison from working on Saturdays. Hardison belonged to the Worldwide Church of God. One of the tenets of the church is that one must observe the Sabbath by refraining from work of any kind from sunset on Fridays until sunset on Saturdays. The evidence showed that Hardison’s job was essential and that on weekends he was the only available person on his shift to perform it. If Hardison was excused from working on Saturdays, the court reasoned, the employer would either have to fill his position with supervisors, with qualified personnel from other departments or with employees from his department paid at overtime wages. These alternatives would involve cost to the company due either to lost efficiency in other jobs or to higher wages. The court concluded that these alternatives would require the company to expend more than a de minimus cost to give Hardison Saturdays off and would, therefore, constitute an undue hardship. The 3rd U.S. Circuit Court of Appeals reached the opposite conclusion in a case involving an employee’s request for accommodation similar to Hardison’s. In Protos v. Volkswagen of America, Inc., 797 F.2d 129, the court held that an employee’s request for a guarantee of never having to work Saturdays did not relieve an employer of the duty to accommodate the employee’s religion under the particular facts of the case. In Protos, Volkswagen regularly maintained employees assigned to specific posts on its assembly line. A crew of roving absentee relief operators stood ready to be deployed as substitutes for absent employees. Protos’ job was easily learned and the line operated as efficiently when a replacement served in her place as when she performed her job herself. Considering the nature of her position and the employer’s method of providing substitutes for absences on the line, the court held that the company failed to establish it would suffer undue hardship by granting Saturday leave to Protos. It distinguished Hardison on the grounds that the company did not have to pay higher wages to replace Protos during her absence. Concerning work schedules, the EEOC suggests the following alternatives for accommodating religious practices because their cost to the employer is de minimus: — Facilitate voluntary substitutes or swaps whereby the individual seeking the accommodation in work schedule is responsible for finding another worker to fill in; — Provide flexible work schedules and breaks; — Allow an employee to make up time lost due to the observance of a religious practice; and — Offer lateral transfers and change of job assignments. LEGISLATIVE CHANGES The law with respect to reasonable accommodation for religion has always been controversial. As originally enacted, Title VII did not require employers to reasonably accommodate their employees’ religious practices. Policy-makers have been concerned that the bar is too low for employers to establish that a particular accommodation is an undue hardship. Legislation has repeatedly been introduced in Congress to raise the mere de minimus standard for “undue hardship” to one that creates a higher standard. The Workplace Religious Freedom Act (WRFA), for example, would amend Title VII to require employers to reasonably accommodate an employee’s religious observance or practice unless it posed “significant difficulty or expense” to the employer. Although efforts to convince Congress to pass WRFA have failed so far, supporters intend to reintroduce the bill in the next Congress. IN JOB INTERVIEWS An employer’s duty to accommodate also pertains to prospective employees. An employer may not let a job applicant’s need for a religious accommodation affect its decision whether or not to hire an applicant. The EEOC’s position on this issue is that the use of questions during the interview process about an applicant’s availability for work may have “an exclusionary effect on the employment opportunities of persons with certain religious practices.” Instead of asking job applicants about the possible need for such accommodation, the regulations state that an employer should simply “state the normal work hours for the job,” and, “after making it clear to the applicant that he or she is not required to indicate the need for any absences for religious practices during the scheduled work hours, ask the applicant whether he or she is otherwise available to work those hours.” Only after the employer offers the job to the applicant, but before the applicant is hired, may the employer inquire into the need for a religious accommodation and determine whether an accommodation is possible. Employers who ask during the interview process about the need for accommodations for religious beliefs or practices do so at their own peril. Where an interviewer ignores the EEOC’s admonition in this regard and rejects a qualified applicant, the commission takes the position that it will infer that the need for such accommodation “discriminatorily influenced the decision to reject an applicant” unless the employer can demonstrate otherwise. RELIGIOUS GARB AND PRAYER Employers must reasonably accommodate employees’ wearing particular clothing or grooming themselves in certain ways for religious reasons. Making exceptions to dress codes to accommodate an employee’s religious practice of wearing a yarmulke, hijab or turban, for instance, usually falls within the scope of reasonable accommodation without undue hardship to the employer. But these entitlements are not absolute. Typically, safety concerns constitute undue hardship. Courts have generally not required the restaurant or food industry to allow food handlers to wear dreadlocks, long hair or beards for religious reasons unless alterations are made to keep hair away from the food. Likewise, courts commonly have not required employers to accommodate an employee’s wearing of religious attire where the safety of the employee, other workers or the public is sacrificed. See Kalsi v. New York City Transit Auth., 62 F. Supp. 2d 745. What about the effect, real or perceived, that employees wearing religious garb may have on the public “image” of a business? May an employer require a receptionist to remove her hijab or change her duties to keep her out of public view? The answer is absolutely not. Such notions about customer or client preference do not constitute undue hardships. Since Sept. 11, 2001, the EEOC and state and local agencies have documented a significant increase in the number of charges alleging workplace discrimination based on religion filed by individuals who are Muslim, Arab, South Asian or Sikh. To clarify the employment rights of these workers and to prevent Sept. 11-related workplace backlash, the EEOC issued a “Fact Sheet on Employee Rights Regarding Religious and National Origin Bias.” Deborah Weinstein is a member in the Labor and Employment Department at Eckert Seamans Cherin & Mellott, LLC. A member of The Philadelphia Lawyer Editorial Board, she also teaches employment law and introduction to the law and legal studies at the University of Pennsylvania’s Wharton School of Business. Her e-mail address is [email protected] (c)2003 Philadelphia Bar Association. Used with permission. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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