Religion and Discrimination

Indianapolis · December 2003

We have an employee who is an Asst. Minister. She does not want to work on Sundays. Her religion does not prohibit working on Sundays. I understand that we have to accomodate religious observances, beliefs, and practices. While what she wants to do is voluntary, does it fall within the parameters of a religious practice for the purposes of Title 7? I am inclined to think it does.

ray a · December 2003

How often would this ee be expected to work on Sunday, often or occasionally? Did they know that when they accepted the job? If they do not work on a Sunday, does that create a business problem for you?

A faith may not expressly forbid Sunday (or Saturday)work, but the individual's convictions will lead them to desire to observe it as a day of rest.

Personally, I have worked many Sunday's in my career, probably too many. But, out of religious convinctions, I would not accept a job that required me to work every Sunday or on a consistent basis. If you can accomodate this ee, I would suggest you do so. If it is detrimental to the business, they may have to find other work.

Indianapolis · December 2003

The employee's schedule is being redone (as are all others in the department). The new schedule would require work on Sat and Sun every other weekend. I don't believe she has ever worked on Sun before.

If we have to accomodate her, it would require more creative scheduling. We were thinking of the following options/accomodations: keeping the new schedule and giving her the responsibility of finding her own replacement where overtime isn't an issue; or giving her every Sat to work.

I guess I'm having trouble with the line between "practices" per Title 7 and personal convictions that don't necessarily rise to the level of a protected activity.

Parabeagle · December 2003

I would try to accommodate if I could - but remember there is nothing in the law that says you must accommodate if it places an undue hardship on you, the employer. Problem is the definition of "undue hardship" is going to be decided by the courts if you don't accommodate and she sues. Most courts consider an accommodation to create an undue hardship if it involves more than minimal costs or if it has an actual (not theoretical) adverse affect on coworkers (for example, the schedule shifting required for the accommodation creates a disproportionate increase in other employees' workloads). And you should also remember that the burden is upon you to prove an undue hardship.

oppl · December 2003

We are a public library. We have 6 branches; only 2 of the branches are open on Sun from 2-5. Until recently, we paid anyone who worked the Sun schedule time and a half. Due to budgetary cuts, we discontinued paying money and began giving comp. time. At that point, several employees from other branches that previously wanted to work on the Sun quit volunteering since they were not getting money. This created a problem for the 2 branches that were open. To solve this, the director decided to make a revolving scheule that included all employees systemwide who were in the public service depts. to take a Sun. This would mean that everyone would work about once every 6 or 7 weeks. The majority of the staff is of the Christian faith; however, only one employee has said she "refuses" to work her scheuled Sun due to her religous beliefs and that she feels we cannot require her to do this. She has been employed with us about 3 years and on her original application she put that she would not work Sun. Until now, that has not been an issue. Where do we stand with this employee and others who orginally put that they did not want to work Sun on their applications in light of this new policy?
Thanks,
Gloria

Whatever · December 2003

Basically, if the belief is sincerely held, it does not matter even if the person is a member of an organized religion.

In this case, since you are changing the schedule, see if you can make the accomodation.

vmiller MO · December 2003

This is always a challenging issue. Under Title VII, an employer cannot discriminate on the basis of religion. An employer is, futher, required to make a reasonable accommodation for an employee's religious beliefs. This all sounds nice, but it is not very helpful when trying to decide what to do.

The first issue is it a religious belief. From your posting it is not clear that it is a "religious belief" not to work on Sunday or that working on Sunday interfers with the employee's "second job" of being a minister and presumably performing services. I suggest that you seek a clarification because if it is the latter, it makes the analysis somewhat easier.

Secondly, let us presume that it is a religious belief not to work on Sunday. Accommodation for religious reasons does not have the same meaning as accommodation under the ADA. The Supreme Court holds that only the de minimus accommodation is required because any greater requirement would potentially place the government in a position of violating the First Amendment. De minimus means a slight or small change. It is easier to define de minimus in terms of what you do not have to do. For example, if you have a seniority system, you do not have to change it. If everyone is working this rotation, you do not have to exempt the employee from the rotation unless you are exempting other employees. YOU DO have to allow the employee to solicite volunteers to work the Sundays, but if no one wants to do so, you do not have to force others to take the employee's place.

I suggest that you consult with your legal counsel in order to devise a strategy to deal with this issue. There are a lot of pitfalls. You should also recognize that the EEOC has no idea how to handle religious discrimination issues. As a result, it is imperative to work with your attorney to be prepared to justify your position.

Good luck.
Vance Miller
Editor, Missouri Employment Law Letter
Armstrong Teasdale LLP
(314) 621-5070
[email]vmiller@armstrongteasdale.com[/email]

KathiHR · December 2003

Mr. Miller,

Please elaborate on your statement, "the EEOC has no idea how to handle religious discrimination issues." Coincidentally, I just received notice today from the EEOC on an ex-employee who is claiming she was terminated because she was a Muslim. This is quite the shock, since no one in the office seems to have even known she was a Muslim, not even the people she worked directly with. Her statement offers little info as to how she believes she was discriminated against (probably because she wasn't.) I'd like further info on what you meant by that statement.

Thanks,
Kathi

vmiller MO · December 2003

What I mean is on one hand, the EEOC does not like religion because it can be a defense to enforcing other parts of Title VII. On the other hand, it knows that religion is a protected category. As a result, the EEOC has to "protect" against religious discrimination. So if the employer somehow sanctions religious prayers, etc., at work, then the EEOC will take the position that such practices discriminate against employees. Yet if an employer tries to prevent an employee from preaching at work, the EEOC feels that any employer action could be discriminatory. Another example, I had a case where an employee refused to provide a valid SSN because it was against her belief. The EEOC took the position that the employer's requirement that the employee provide a valid SSN violated Title VII eventhough the IRS requires valid SSN's. The courts disagree. Thus, religion is not an easy category for the EEOC to deal with.

In regard to your current charge, allegations of discrimination against Muslims or Arabs is a hot button issue for the EEOC. Of course, if you do not know what religion a person is, it is hard to discriminate against them on account of their religion. However,the EEOC will look at the person's name or national origin and then may presume that you "assumed" that the person was Muslim. It is always interesting trying to prove a negative.

I hope this helps. I do suggest that you consult with your attorneys in regard to the charge.
Vance Miller
Editor, Missouri Employment Law Letter
Armstrong Teasdale LLP
(314) 621-5070
[email]vmiller@armstrongteasdale.com[/email]

marc · December 2003

Ray and Beagle have given you sound advice. As to accomodating, perhaps this EE can work every Saturday and another EE can work every Sunday.

I worked in the ski industry for a while and during the season, management was expected to work 6 days a week. I had every Sunday off in exchange for another manager who wanted every Saturday off.

I don't know if something like that will work at your shop, but if you can accomodate and stay out of some expensive regulatory procedure, it might make economic sense and produce another happy EE who thinks your company walks on water.

Religion and Discrimination

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