Religion at Work

Balancing Religious Rights and Civil Rights

Published in Employment Discrimination (Monday, July 7, 2014 2:00 pm)

In less than two months, the United States Supreme Court issued two decisions that have reignited the debate in this country about the separation of church and state and the role of religion in a secular society.  In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court held that two for-profit corporations were “persons” within the meaning of a federal statute that prohibits the government from “substantially burdening a person’s exercise of religion.”  1  And in Town of Greece v. Galloway, the Court allowed public officials in Greece, New York to open their meetings with Christian prayer. 2 While these cases involve clashes between government and religion, employers in the private sector often face challenges in balancing the needs of their business with the religious rights of their employees.

These rights derive from Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, national origin, and religion.3 “Religion” is broadly defined under Title VII. According to the U.S. Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing the law, “Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.”4 Claims of religious discrimination doubled between 1992 and 2007, according to the EEOC, and will likely continue to increase as the American workplace becomes more religiously diverse.

Very rarely do employers win religious discrimination claims by rejecting the legitimacy or sincerity of the employee’s religious beliefs. Employers more commonly seek guidance on two types of requirements imposed by the law: 1) the duty to accommodate an employee’s “sincerely held” religious belief; and 2) the obligation to ensure that the workplace remains free from “religious harassment.”

First, and perhaps the most typical fact pattern in a religious discrimination case, is the situation involving an employee whose religious practice prevents him or her from meeting an employer’s work requirement. Generally, an employer must provide a “reasonable accommodation” to the employee so long as the accommodation does not impose an “undue hardship” – a heavy burden – on the business. Consider the following example:

Rachel, who worked as a ticket agent at a sports arena, asked not to be scheduled for any Friday night or Saturday shifts, to permit her to observe the Jewish Sabbath from sunset on Friday through sunset on Saturday. The arena wanted to give Rachel only every other Saturday off.5

Does the arena’s conduct violate Title VII? Most likely, yes.6 According to the EEOC, the arena has not “reasonably accommodated” Rachel because she is still required to work on her Sabbath – in other words, the religious conflict still exists, just less frequently. Only if the arena can demonstrate that Rachel’s proposed accommodation7 will cause the business “undue hardship,” will it avoid liability under Title VII. While the EEOC will consider cost and disruption to the employer’s business in evaluating whether “undue hardship” exists, the agency resolves such issues on a case-by-case basis – and rarely in the employer’s favor.

Let’s turn to the second issue: an employer’s duty to protect its employees from “religious harassment.” The courts have held that “harassment” is a form of discrimination that applies to all of the categories protected under Title VII (race, sex, religion, and national origin), and the most common type is “hostile environment” harassment. According to the EEOC, an unlawful hostile environment based on religion exists “when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”8 The intent of the conduct is irrelevant; as long as the conduct is “unwelcome,” the employer may have liability. Consider this example:

Bob, a supervisor, occasionally allowed spontaneous and voluntary prayers by employees during office meetings.  During one meeting, he referenced Bible passages related to ‘slothfulness’ and ‘work ethics.’  Amy complained that Bob’s comments and allowing voluntary prayers during office meetings created a hostile environment.9

Do Bob’s comments create a hostile religious environment? According to the EEOC, “Bob’s comments do not create an actionable harassment claim.  They were not severe, and because they occurred infrequently, they were not sufficiently pervasive to state a claim.”10 But what if Bob permitted voluntary prayers and cited Bible passages in every staff meeting? Amy would likely have a stronger claim because the comments would have been more pervasive. And because they occurred frequently, the EEOC would likely find that the “severity” requirement was met as well: “Incidents that may not, individually, be severe may become unlawful if they occur frequently.” Finally, would it matter if both Bob and Amy were of the same (in this example, Christian) faith? No. As long as Amy finds Bob’s comments unwelcome, a hostile environment may be present.

Employers can protect themselves from claims of religious discrimination and religious harassment by adopting policies that strike a balance between lawful religious expression and unlawful coercive or offensive conduct. All managers should receive special training in this area – employers can be liable for unlawful conduct by supervisors even if the employer has no knowledge of the conduct. Finally, encourage employees to come forward if they believe any form of discrimination has occurred in the workplace. Discrimination is not only illegal, but it harms morale, promotes perceptions of unfairness, and damages productivity. Having faith in the success of the business is something everyone in the workplace can believe in.

— Laurie T. Baulig

  1. Docket No. 13-354 (June 30, 2014)
  2. Docket No. 12-696  (May 5, 2014)
  3. Title VII, a federal law, applies to employers with 15 or more employees.  In Pennsylvania, employers with 4 or more employers are covered under a similar state anti-discrimination law.
  4. U.S. Equal Employment Opportunity Commission, “Manual on Religious Discrimination,” (“EEOC Compliance Manual”) at §12-1(A)(1); www.eeoc.gov/policy/docs/religion.
  5. EEOC Compliance Manual, Example 32.
  6. What? You were looking for a “yes or no” answer from a lawyer??
  7. The employer must also consider alternatives to the employee’s requested accommodation.
  8. EEOC Compliance Manual, text at footnote 78.
  9. EEOC Compliance Manual, Example 21.
  10. Id.

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The information contained in this website is provided solely for informational purposes. It should not be construed as legal advice, is not a substitute for legal counsel, and is not intended to create an attorney-client relationship. For legal advice or answers to specific questions, please contact Ms. Baulig.

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Laurie T. Baulig
Laurie T. Baulig

Attorney at Law

With a career spanning three decades, Laurie Baulig has been a litigator for the federal government, a private practitioner, in-house counsel for two business trade associations, and a teacher at a liberal arts college.  She founded Baulig Law with the idea that, at its best, law is a service profession that should be transparent, accessible and affordable.  The firm’s focus on employment law also reflects her philosophy that both businesses and their employees benefit when the workplace is free from discrimination, unfair wage practices, and unsafe or unhealthy conditions.

Laurie began her career as an antitrust litigator for the Federal Trade Commission in Washington, D.C.  She later shifted her focus to employment law as in-house counsel for the American Trucking Associations, one of the largest business trade groups in the nation’s capital.   While at ATA, she travelled across the country explaining the requirements of new laws passed by Congress – such as the Americans with Disabilities Act, Civil Rights Act of 1991, and Family and Medical Leave Act – and regulatory proposals that would have an impact on the trucking industry.   This experience not only confirmed her passion for employment law, but also awakened her interest in teaching.   So she left D.C. for Lancaster, PA in 2008 to serve as adjunct assistant professor at Franklin & Marshall College.  From 2008-13, she taught Human Resources Management, Gender and the Law, and other courses affecting legal rights and responsibilities in the workplace.

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