Religious Rights Issues in the Workplace in the U.S.
Religious rights issues involving the workplace is considered a litigious issue among business owners. In fact, it’s very controversial that even the Harvard School of Business created specific courses for it. Religious issues require an understanding of the law that should go a bit more from the normal precautionary readings in order to address it properly. It’s a healthy compromise between the employer’s needs to balance the business with the employee’s right to practice his or her religion.
Know Your Laws
In the discussion of issues pertaining to religion, it’s imperative that the laws encompassing these are fully understood.
First and foremost in every discussion of religious liberty, the First and Fourteenth Amendments need to be introduced as these are its foundation and the basis in accordance with any act or state legislative that will be created from here on and forward.
The First Amendment under the Bill of Rights ratified in 1791 gives constitutional protection to basic human rights and liberties namely the freedom of religion, freedom of speech, freedom of press, and freedom to peacefully assemble and petition the government. Under this amendment are two important clauses, the first one being the “Free Establishment Clause” which basically prohibits the federal government to pronounce a state religion and/or impose any religion to any individual, community, or organization. Following that is the “Free Exercise Clause” which gives every individual the right to freely practice his or her religion.
This Amendment is aimed to resolve the various religious persecution happening in the country and to establish the separation of church and state.
In 1868, a Reconstruction Amendment was adopted into the U.S. Constitution. The Fourteenth Amendment which is historically one of the most consequential amendments to date, addresses the citizenship rights and equal protection under the law. Within the first section of the Fourteenth Amendment are four clauses namely the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause. Religious liberty is discussed in the Privileges or Immunities Clause wherein it states that discrimination against any religion is prohibited and is a violation of an individual’s religious freedom given by the State.
The First Amendment discusses religious freedom in the context of federal government while the Fourteenth Amendment extends to state governments as well.
In connection to that, there is the Title VII of the Civil Rights Acts of 1964 which states that:
“To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.”
It’s a federal law that provides protection to employees against discrimination based on race, color, national origin, sex, and religion. Under Title VII, any employer is prohibited to discriminate with any regard to employment such as hiring/recruitment, promotion, training/internship, transfer, discharge, performance evaluation or benefit allocation.
This applies to first, the federal government, employment agencies, labor unions/organizations, and private businesses with more than fifteen (15) employees. This is enforced by the Equal Employment Opportunity Commission or EOOC.
The two main points of Title VII revolve around prohibition of any discrimination or non-discrimination and the reasonable accommodation of an employee’s religious beliefs anf practices provided that it is not giving ‘undue burden’ to the employer and the business.
In addition to Title VII, there is also the Religious Freedom Restoration Act or RFRA which was passed by Congress in 1993 which aims to assess any general law to be passed by the Federal government that imposes burden on one’s free exercise of religion. It must pass a two step scrutiny analysis: (1) the new law should act to serve a “compelling interest” and (2) the federal government must use the least restrictive process or means in order to achieve that compelling interest.
Religious Discrimination: Definition, Types, Cases, and Statistics
Religious discrimination is described as the unfair treatment of employees in the workplace due to their religion, religious beliefs and practices, and or their request for accommodation. This also extends to individuals who do not exercise any kind of religion.
The courts have recognized three forms of prohibited discrimination:
Disparate Treatment Discrimination
This is characterized as an overt form of discrimination which entails making employment decisions such as hiring, promotion, and firing on the grounds of someone’s religion, or the lack thereof. This includes both refusal and favor towards any religion. This is one of the most common form of discrimination. Although there is consideration for businesses that are religious nature and therefore are permitted to require certain faith adherences. However, the legitimacy of an employer’s requirement of faith for this position shall be studied closely by the Court.
Examples of the disparate treatment discrimination can be seen in the case of Sherbert v. Verner, 374 U.S. 398. The facts of the case follows that Seventh Day Adventist Adele Sherbert was fired from her job as she refused to work on her Sabbath day (Friday evening through Saturday) in accordance with the mandate of her religion prohibiting any kind of work on the day that God rested after his Creation. In addition, she was denied unemployment benefits by the state of South Carolina as the ground of her discharge was a valid work-related reason and that she would not accept any available work that would require attendance on a Saturday. Lower courts ruled against her favor as they dissented the fact of religious freedom that would cause the state to provide laws to accommodate such religious convictions.
Sherbert appealed to the Supreme Court and contended that it was a violation of the “Free Exercise Clause” of the First Amendment. The Supreme Court ruled in her favor, affirming the violation of her First Amendment rights. Consequently, the denial of her unemployment benefits were also ruled as an infringement to her right noting that providing Sherbert her unemployment benefits is not a promotion of religion rather the equal application of unemployment legislation.
This case has served as a basis of ruling in other similarly identified cases such as the 1990 employment Division, Department of Human Resources of Oregon v. Smith. In this case, the Supreme Court also eased the strict scrutiny test established by Sherbert for the upholding of laws in claims of religious liberty. This led to the creation and passing of the RFRA three years later.
Another is a more recent one which involves the case of a Muslim girl named Samantha Elauf against the famous clothing line Abercrombie & Fitch. In 2008, 17-year-old Elauf was interviewed for a salesperson position at an Abercrombie & Fitch store in Oklahoma but ultimately did not get hired and it was found out that a senior manager had blocked her application due to her hijab which she wore on her interview. The Equal Employment Opportunity Commission alongside Elauf filed a complaint against the company which was won by Abercrombie on appeal with the argument that Elauf did not communicate her need for accommodation which completely conflicted with the brand’s dress code. But in 2015 as the case was elevated to the Supreme Court, the Court ruled in favor of Elauf citing the violation of Title VII of the Civil Rights Act of 1964.
Disparate Impact Discrimination
As opposed to disparate treatment discrimination, disparate impact is more subtle in form and rather unintentional. This form of discrimination stems from the lack of business policy regarding unequal treatment of one or more religious groups. Furthermore, it also extends to a point of a policy in place but with no direct expression of treatment which causes discrimination against certain religious groups. Cases involving this form in example is a company or business policy that disallows any form of head garment worn as part of the dress code which may affect specifically religions who wear religious head items such as turbans (Shikhs). This leads to conflict of religious practice and vocation.
Hostile Work Environment Discrimination
This is the form of discrimination perpetuated by an employer (either maintains or allows) wherein the workplace becomes a hostile environment directed against a particular colleague on the basis of his or her faith. Harassment of this form includes making fun of employees in jokes or though mockery and ridicule. Examples of it are jokes at the expense of religious items worn, mockery of strong Christian beliefs, or ones that we are very familiar with – ridiculing a Muslim colleague for not eating meat or making consistent efforts to save the soul of an atheist.
In 2013, the Equal Employment Opportunity Commission or EEOC reported a total of 93,727 cases of workplace discrimination. In breakdown, there were (1) 33,068 cases of racial discrimination (which constitutes the largest of all types of discrimination (2) 27,687 sexual discrimination charges including sexual harassment and pregnancy discrimination) (3) 25,957 charges of diability discrimination and lastly (4) 3,721 alleged claims of religious discriminations. Religious discrimination cases only account for 4% of the total but does not mean that is not equally of importance. Four percent is still a large number and with all the laws emplaced, this should have been down to a zero (ideally).
However, it appears that religious discrimination is the fastest growing type of discrimination in the country. In a span of six years, complaints have doubled from 1,709 in 1997 to the reported 3,721 cases in 2013 and in between in 2011, the cases peaked at 4,151. By 2015, reports have shown a 41% increase (starting from 1997) and simultaneously, payouts have also overwhelmingly increased 174%. Three years later in 2018, there was an observed 50% increase in religious discriminations in a 15-year span with doubled amount of settlements.
Although the numbers have increased, this does not necessarily mean that religious discrimination has worsened over the years. Experts attribute the increase to the high level of diversity in the workplace as well as the willingness and assertiveness of employees in sharing their own beliefs and in demanding proper accommodation.
Accommodation Requests: Reasonable Accommodation, Enumerated Requests, and Solutions
A reasonable accommodation is the compromise in between the rules and policies of the employer and the workplace and the religious beliefs of an employee with which a conflict is then eliminated. But an accommodation request can either be accepted or denied by an employer on the basis of ‘undue hardship’ on the part of the employer and business. Alternatively, an employee can provide options to his or her employer to resolve the conflict. One example of this is the Farah v A-1 Careers wherein the employer did not need to accommodate the Muslim employee a private space of prayer since in alternative, the employee was allowed to go out of the premises to pray.
To define undue hardship on the part of the employer, it’s the “more than de minimis cost” which may include actual monetary costs in terms of additional wages or potential reduction of profitability and second, it can also come in non-monetary form such as the burdens on the operations of the business such as additional staff changes and schedules to accommodate religious convictions of an employee.
Undue hardship is valid under the court of law when the accommodation provides a diminished efficiency in operational works, infringement on other employee’s rights and benefits, impairment of safety of the workplace, or imposition of additional workload to another employee. Employers have won their rights of undue hardship in cases of uniform and grooming based on health and safety concerns (beards, body piercings, tattoos) and uniformity such as in the case of police.
What are the requested accommodations of employees to their employers? And how to resolve it?
Religious conflicts and discrimination in the workplace are observed to stem more from the non-accommodation of religious beliefs and practices than the perceived religious bias and one important step for employers in order to avoid this is a proactive adoption of a policies that will minimize such conflicts.
First and the most popular are accommodations on schedule including different arrival and departure times to attend to their religious practices, days off to participate in religious services, and observance of religious holidays and Sabbaths.
To accommodate such a request, the employer can opt for a flexible work schedule for these employees. It can be in the form of employee schedule swap if it’s available and both parties consent to such changes, staggered work hours enabling an employee to make up for the time they were not able to work, or compromising on a different work schedule compared to others. This is needed for practices that will involve a regular change in the schedule.
For religious holidays, since these are not frequent and will not impact the schedule or operation, employers can opt to encourage these days as paid leaves for the employee as to make sure that their salaries are not compromised with their mandated religious holiday.
Note that under the law to prevent discrimination, employers are not allowed to deliberately ask for the schedule of availability in the hiring process such as “Are you good with a Tuesday to Saturday schedule?”. Instead, employers can lay out the work description including the schedule and let the applicant ask for an accommodation.
Second is a request for an exception to the dress code or grooming policy.
For this one, this is dependent upon how the two parties will compromise under the given policies of the business. Nevertheless, employers can accept these requests on the ground that dress code exception requests do not interfere with the operations and will not compromise safety in the workplace.
Third is a request for private places for prayer.
As discussed earlier, this can be worked out by the two parties and not necessarily requiring the employer to actually provide one. The employer can opt to relieve the employee at specific times to let them go out and pray and make the necessary shifts in schedule if needed.
Fourth is the request of employees to not perform certain functions designated by their role or position in the company that are not aligned with their religious beliefs.
An example of this is the pharmacists’ requests to not fill any contraception prescriptions which is in conflict with their religious beliefs. Another one is the denial of Muslim drivers to transport alcohol of any kind.
In these cases, it’s up to the employer if he or she can accept such a request as it may cause a monetary cost on their part if ever the resolution needs additional manpower in place of these employees to protect their right to their religious beliefs. In general, in order to properly address accommodation requests, the primary step is to get ahead and expect basic religious accommodation rules and weave them into policies and structures of the company to ease the burden of having to personally and individually make accommodations.
Additionally, training supervisors and hiring managers to be able to handle such situations is also a positive step towards diminishing any potential conflict in context of religion.