Religion in the workplace can bring up some of the most difficult issues employers have to face. Resolving these issues requires understanding the law and balancing the business's needs with an employee's desire to practice his or her religion.
One of the most contentious conflicts is between an employee's desire to take time off and the potential reduction in productivity and profitability. Let's assume there's no collective bargaining agreement that expressly delineates the rights of the employer and employee regarding this subject. If such an agreement exists, its provisions will govern any dispute.
The starting point for any discussion of religion in the workplace is Title VII of the Civil Rights Act of 1964. In addition to prohibiting discrimination by private and public employers on the grounds of race, color, sex, religion and national origin, Title VII states that an employer must provide "reasonable accommodation" of an employee's religious beliefs and practices. Under Title VII, an employer can't refuse to reasonably accommodate an employee's religious observances, unless accommodation would constitute an "undue hardship" for the business. Title VII accommodation cases often concern the extent to which an employer must alter work schedules to accommodate religious holidays or the Sabbath.
Dealing with Absences
An employee must first notify the employer of the conflict between his or her religious belief and an employment requirement. Without such notification, an employer can legally discharge an employee for excessive absences from work, even if it's later determined that the absences were for religious purposes.
Sabbath: Several religions observe the Sabbath as a day when followers can't perform work. In recent years, Sabbath cases that have reached the courts have presented difficulties for employees seeking preferential treatment. Many employees asking to be excused from work on Saturday have been unsuccessful for a numbers of reasons. The courts have found undue hardship to the employer because of morale problems that arose when fellow employees resented having to work on Saturdays and because the employer would have had to pay higher wages to fill the employee's vacancy.
Holy days: Employees have had more success in cases involving special leave to observe holy days or attend religious activities that weren't regular and frequent. This is because the occasional religious observance doesn't fundamentally alter the employee's basic work schedule. However, even a single absence can cause an employer undue hardship. In one case, a mechanical department couldn't perform repair and maintenance. The only employee with knowledge of certain machinery drawings took an unauthorized vacation to attend convocation at the Worldwide Church of God. The employer treated the employee as if he had quit; the employee alleged Title VII discrimination. The employer's action was upheld because there was no reasonable accommodation the employer could have made and continued business operations.
In ruling on Title VII religion cases, the courts have held that employers aren't required to accommodate employees' religious activities when it involves increased financial costs, transferring supervisory personnel or employees from other departments resulting in inefficiency, or discriminating against other employees or violating seniority systems. Accommodations that don't constitute undue hardship to the employer include voluntary substitutions or employee "swaps," flexible work schedules, floating or optional holidays, staggered work hours, and allowing employees to make up lost time. Transfers and job changes also are options if they don't cause reduced efficiency or other disruptions.
While technically not required to do so, an employer should always offer accommodation suggestions before claiming undue hardship. When an employer makes no suggestions, he or she must be able to prove that no accommodation was possible. Similarly, the employee also should cooperate with the employer in suggesting and accepting options for resolving the conflict. What happens when both the employer and the employee suggest reasonable accommodations? The courts have held that the employer has the choice when there's more than one option.
Clearly, issues involving religion in the workplace are complex. Consider consulting expert legal counsel to achieve a successful resolution.
Jeffrey Steinberger is a veteran trial attorney and the founder and senior partner of The Law Offices of Jeffrey W. Steinberger , a Professional Corporation in Beverly Hills, California. He is also a renowned celebrity attorney, TV legal commentator and analyst, federally appointed SEC arbitrator and professor of law.