Legal Trends

By Mark D. Downey Jan 1, 2008
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HR Magazine, January 2008 Keeping the Faith

EEO policies should account for religion in the workplace.

Perhaps it isn't surprising that religious fervor permeates our land to this day. This is, after all, a nation that traces its birth back to the arrival of the Puritans and others seeking a place where they would be free to practice their religion. But a frontier is emerging that employers should confront head-on: the growing demand by evangelicals and others to pronounce and practice their faith in the workplace.

What responsibility does an employer have to meet the needs of employees who wish to express themselves religiously, and those employees who would rather not work inside an environment seemingly hostile toward their religions or beliefs? While a board of directors may care only about the bottom line, there are some who still argue that a company whose workers share a common belief and value system are more cohesive and productive, thus adding to the bottom line.

The same argument, however, was made before desegregation about companies whose members all share the same skin color. Moreover, diversity in the workplace has become a greater norm, and studies show that it is a profitable business practice.

Truly, recognizing diverse religions in the workplace represents a thorny, highly volatile issue for HR professionals--one that pits conflicting civil rights concerns against each other. There are no clear-cut answers, as religion in the workplace has become a fertile ground for employment claims. Proactive steps can nevertheless help to prevent, or at least mitigate, problems before they occur and help all employees--religious or not--keep the faith in the organization's mission.

Anti-Harassment Policies Employers first need to recognize that hostile work environment claims and harassment claims do not arise only from sex or race discrimination. Hostile work environment claims can also be based on claims of religious discrimination.

Anti-Catholic jokes, for instance, can be just as offensive as sexist comments--and grounds for liability. Furthermore, it is likely that unwelcome, one-on-one proselytizing from a superior to his or her subordinates will be treated in the same manner as sexual harassment from a superior--as a nearly strict liability standard for the employer.

In 2006, the U.S. Equal Employment Opportunity Commission (EEOC) received 2,541 charges of religious discrimination and recovered $5.7 million in monetary benefits for charging parties, not including benefits recovered through litigation. This represents a 60 percent increase in the total charges filed based on claims of religion since 1997 and nearly triple the monetary benefits recovered based on such claims. Moreover, in 2007, the EEOC pursued religious discrimination claims against a number of employers. Companies such as the restaurant group Razzoo's Inc., telecom provider Vonage America Inc. and financial industry giant Merrill Lynch & Co. all had to defend claims of religious discrimination brought by the EEOC last year.

Consequently, employers need to be sure that their anti-discrimination and antiharassment policies cover situations where employees are feeling persecuted, discriminated against or harassed for their beliefs or nonbeliefs. Employers' anti-discrimination and anti-harassment policies need to therefore include and recognize that harassment and discrimination based on religion or religious beliefs are just as illegal as harassment or discrimination based on any of Title VII's other prohibited grounds for employment decisions. An employer's policy further needs to ensure that supervisors or managers aren't allowed to subject subordinates to quid-pro-quo harassment based on religious beliefs or participation in certain religious activities.

Train About Policies

Merely having established policies will not be enough, however. Employers need to train their managers about acceptable and unacceptable conduct involving religious beliefs. Religious, social and political controversies are less likely to erupt in a workplace where a company's anti-discrimination, antiharassment, religious accommodation and dispute-resolution policies are all communicated clearly, early and often. Employers also need to actively promote the processes that managers and supervisors can use to actively follow and enforce company policies and avoid personal entanglements with such issues.

One way to accomplish this is to ensure that open-door and complaint-response policies are in place and known throughout the workplace. Employers are wise to remember that social controversies are far more likely to occur when managers or supervisors inject themselves into the debate instead of refocusing the issue on compliance with company policies and getting everyone back to business.

Even as a superior may agree with the religious beliefs of a particularly vocal employee, he or she still must understand that it is his or her job not to get involved in the debate and, further, to question whether it is appropriate to pronounce those beliefs in the workplace.

Managers should understand that problems are likely to arise if employees feel that they are attending somebody else's church--not reporting to work. One case involving an employee who felt that the workplace was so permeated by a particular religious belief that a hostile environment may have been created is Noyes v. Kelly Services (No. 04-17050 (9th Cir. 2007)). There, Noyes claimed that she was denied a promotion by her supervisor because she was not a member of the religious group to which the supervisor belonged. The 9th Circuit found that sufficient evidence was presented that the supervisor may have denied Noyes at least one promotion because she was not a member of the same religious group as the manager and others in the company. Consequently, it let the claim proceed to a jury trial.

In another case, Ollis v. Hearthstone Homes Inc. (No. 06-2852 (8th Cir. 2007)), a jury found that the employer's actions--of encouraging and paying for employees to attend a Mind Body Energy (MBE) course that discussed Buddhist and Hindu teachings, and the company's employment of MBE coaches who worked with employees to "cleanse negative energy," among other activities-- amounted to illegal religious discrimination. In contrast, the mere fact that a religious statement posted by an employee in his or her cubicle is annoying or offensive to one person will not generally rise to the level of being illegal religious harassment (see, e.g., Powell v. Yellow Book USA Inc., No. 05-2465 (8th Cir. 2006)).

Respect and Listen

In addition to the establishment of policies and proper training, employers need to demonstrate a respect for diverse religious beliefs. An employer that wants to keep social issues from intruding in its workplace should first avoid intruding in or passing judgment on the beliefs or social mores of its workforce. As long as employees do not bring such personal matters to the office in a manner that creates an undue hardship for the employer or unduly impinges on the rights of others, employers should not involve themselves with those aspects of their employees' lives.

An employer should, however, be prepared to listen to its employees when religion is being discussed or raised as an issue in the workplace. If employees raise a concern about a perceived conflict between religious beliefs and their jobs, the employer should be proactive in working with the employees to try and reach an accommodation that resolves the problem and does not result in an undue hardship. Employers further need to ensure that all managers and supervisors within the organization know that any issues raised by their employees involving needs based on religion, or complaints about religious activities in the workplace, must be handled just like any other employee complaint of discrimination, harassment or need for accommodation.

An employer's duty to accommodate a person's religious beliefs under current law is primarily governed by the U.S. Supreme Court's decision in TWA v. Hardison (432 U.S. 63 (1977)). In that case, the court found that an employer has the legal duty to accommodate its employees' exercise of religious activities in the workplace as long as the requested accommodation does not create more than a de minimis cost to the employer.

As a general matter, this standard has resulted in a line of cases where employers generally have not had to allow employees to proselytize in the workplace when such activities interfere with the services being offered by the employer, or when that conduct harms other personal or civil rights. It also has resulted in a general standard that places the prevention of a hostile work environment over the need for the accommodation of an employee's request based on religious needs. Regardless of this seemingly low undue hardship standard, employers should still be careful in considering a reasonable request, such as not having to work on the Sabbath or another significant religious day. Similarly, when the accommodation requested is fairly easy to accommodate--such as not requiring a waiter to sing "Happy Birthday" to customers because of the employee's religious opposition to doing so (see EEOC v. Razzoo's, No. 3:06-CV- 1781-L (N.D. Texas, consent decree filed June 18, 2007))--employers should take steps to make the accommodation even if an argument can be made that the cost is more than de minimis.

As a general rule, employers need to consider reasonable requests for accommodation as long as a true undue hardship is not created. Much like the Americans with Disabilities Act, employers probably will not be required to hire additional employees just to cover for another employee who needs an accommodation based on religious needs.

Employers also will not be required to give employees unrestricted leave time. But when an employee's request can be accommodated with relative ease and limited expense, employers would do well to make the accommodation. Likewise, if an employee makes a complaint of any form of harassment, discrimination or other unprofessional behavior in the workplace, or if management observes such conduct, employers should move quickly to investigate the matter and enforce the applicable policy.

Apply Policies Uniformly

Policies do more harm than good if they are ignored. Employers should be prepared to apply their policies regardless of whether the employee at issue is the best worker or the worst employee in the company. Uniform use and enforcement of policies shows employees that the employer takes its rules seriously, so they should as well. A company that enforces its policies reduces its risk of liability and creates and maintains a more professional atmosphere.

Once employers have the processes in place to handle complaints and problems, they should decide whether to allow any religious activities in the workplace. If they choose to allow religious activities, employers should proceed cautiously. Employers need to make clear that any religious activities associated with work--such as prayer meetings or Bible studies--are entirely voluntarily, and should not take place during work hours.

Employers should avoid the problem encountered in the Hearthstone case discussed previously. Although the MBE programs were not "required," the beliefs and practices were so pervasive, and the company went to such great lengths to encourage employee participation (hiring coaches, paying for employees to attend seminars, having employees carry cards stating the principles), that it in effect made the beliefs a requirement of employment.

Employers also should make sure that employees who organize or participate in the activity understand ahead of time that if the activity is not contained within the established limitations, the activity will not be allowed to continue because operating outside those limitations will constitute an undue hardship on the employer. The employees should be informed that an undue hardship may be based on economic factors, and could also arise if the religious activities spill over into the general work environment. The employer also should think ahead and be ready to provide similar accommodations to all the different groups that may ask for permission to undertake religious activities in the workplace.

For example, if a Christian group of employees wants to use a conference room to have prayer meetings before the start of the workday, a group of Jewish employees seeking to hold off-hour discussions of their religious beliefs also should be allowed. A uniformly applied process and strategy for dealing with such requests in a neutral manner ahead of time may assist the employer in avoiding claims that it is showing a preference for one religious belief over another.

If some religious activities are going to be allowed, an employer should carefully tailor the accommodation. The employer that allows religious activities to take place on the premises should understand that the potential for issues--requests by employees of other religious groups for similar accommodations, complaints of favoritism and so forth--will greatly increase.

Employers should therefore make it clear to employees and managers that career advancement is not predicated upon a particular religious belief, and should further take steps to avoid a perception that career advancement may be dependant on participation in such activities. The group should also be informed that if such perceptions develop, the accommodation will be discontinued if the program is deemed an undue hardship. And, of course, employers should make sure employee handbooks detail the rights and responsibilities of employees regarding religion, and should consult legal counsel if necessary to correct and amend mistakes and loopholes.

Team Building

Today's workforce is the most diverse in history. The main thing any given group of employees may have in common is that they all work for the same employer. Diversity today means that males and females or blacks, Hispanics and Caucasians work together and are treated equally and that an employer does not allow religious beliefs to be used as a basis to discriminate or harass.

An employer has an affirmative duty to treat each employee with respect and dignity, regardless of whatever religion or other protected class they belong to, and should benefit from creating an atmosphere where everyone feels valued and part of the same team. The goal of having a workplace where employees can succeed is much more likely if the employer:

  • Sets clear rules against discrimination, harassment and retaliation based on a person's religious beliefs.
  • Communicates those rules to all employees within the organization.
  • as mechanisms in place whereby employees can have their complaints about the workplace heard and responded to.
  • Enforces the rules in a uniform manner.

Conflicts often can be resolved or avoided altogether in a workplace atmosphere that constantly reminds employees of their shared interests in the success of the company, rather than highlighting any differences in such perennially controversial matters as social mores, politics or religion.

Editor's Note: This article is not intended as legal advice. For specific situations, consult qualified employment law counsel.

Mark D. Downey is a senior attorney in the Labor & Employment and Litigation Practices of Epstein Becker Green Wickliff & Hall PC in the firm's Dallas office. He can be reached at MDowney@ or at (214) 397-4346.

​Web Extras

SHRM web page
Workplace Law Focus Area  

SHRM articles:
Prohibiting Discrimination Based on Religion: An Employer’s Obligation (Legal Report)

Religion vs. Sexual Orientation (HR Magazine)

SHRM toolkit:
Religion in the Workplace

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