Be diligent about addressing religious discrimination at work, especially at a time when Jewish community centers are being vandalized and receiving bomb threats and President Donald Trump seeks to restrict immigration and travel from six predominantly Muslim countries, a labor attorney said during the Society for Human Resource Management's Employment Law & Legislative Conference.
"What happens out there [in public] … can affect our workplaces," said Jonathan A. Segal, an attorney with Duane Morris in Philadelphia and New York City. "This is a hot topic and getting hotter every day."
Jewish community centers are facing threats at the highest rates since the 1930s, according to Segal, who recalled seeing an armed guard when he recently walked into a synagogue. And he pointed to Trump's recent executive order that temporarily restricts immigration and travel into the U.S. by people from six predominantly Muslim countries for 90 days. Those are two examples of how religion has become more publicly discussed, sometimes very negatively, Segal said. He spoke at the Washington, D.C., conference March 14 on "Religion & Work: Balancing Legal Risks and Maximizing Inclusion."
So What Is Religion?
Religion encompasses not only traditional, organized faiths such as Buddhism, Christianity, Hinduism, Islam and Judaism.
It also includes people who follow the tenets of lesser-known religions such as the Church of Body Modification; those who have a sincerely held religious belief even if that belief is not held by the religious group to which they belong; and those with sincerely held nontheistic beliefs involving what is right or wrong, such as veganism.
And while atheistic beliefs fall under the definition of religion, Segal added, economic philosophies, political organizations and hate groups do not.
Forms of Religious Discrimination
Segal warned HR professionals to be aware of, and steer clear of, these types of religious discrimination in the workplace:
- Disparate treatment. This means intentionally not hiring or not promoting someone because of the person's religious practices, beliefs or observances. It includes stereotyping, being intolerant about a person's religious attire or observance, and adhering to customers' preferences to avoid hiring people of a certain religion.
Customer preference is often given as a reason for not hiring someone of a certain religion, Segal said, but "it's an illegal practice, and it's a bad practice."
*Adverse impact, such as a policy forbidding head coverings. If safety is the reason for not letting a worker wear a hijab, for example, find a compromise. Ask if the employee can tuck the garment up so it doesn't present a safety risk or explain "We cannot accommodate the scarf you are wearing with the safety precautions we have. Is there another scarf you have that would honor your religious beliefs that adheres to the safety policy?"
- Engaging in or tolerating harassment based on religion. "Make sure if you hear it and you see it, you say something [to HR]. If you say nothing on the spot, you are condoning [the harassment and intolerance] by your silence ... the same as if there was a racial, ethnic or other slur. ... The reticence is what causes liability" for the employer.
- Retaliating against someone receiving or requesting an accommodation or against someone who complains about or participates in an investigation of religious bias.
- Associational bias, such as discriminating against someone because of the religious beliefs of that person's spouse or significant other.
This has become a big issue in New York, Segal said. In 2016, the New York State Division of Human Rights adopted a regulation
that prohibits employment discrimination based on a person's relationship or association with a member of a protected category covered by the state's Human Rights Law.
Religious harassment can take many forms—slurs; disparaging nicknames; comments or questions about religious garb or an accommodation that has been granted; and what Segal termed "quid pro quo," which he explained as requiring a person to convert to a different religion in exchange for job advancement.
Schedule changes, prayer breaks, exceptions to the dress code and exemption from certain company rituals are some potentially reasonable accommodations an employer can make as long as there is no undue hardship on the employer, Segal said.
[SHRM members-only toolkit: Accommodating Religion, Belief and Spirituality in the Workplace
Legally, absolutes, such as saying "We don't make schedule changes" or "We don't make exceptions to our dress code," will get the employer into trouble, he said. It's important to drill down to get as many facts as possible surrounding the request, he stressed. If one fact changes, he said, the employer's response to the accommodation request might also change.
Accommodating one employee who requests Sundays off for religious reasons may be doable, for example, but if 40 people who all work the production line on Sundays make the same request, accommodation may pose an undue hardship.
"Documenting why you say 'no' [to the accommodation] is critical," Segal said. An employer does not have to permit an accommodation that an employee requests, he noted, but may offer a less restrictive alternative. Ask "Is there anything short of what you requested that we can do for you?"
"Whenever you grant an accommodation for religious or disability reasons ... say 'we're happy to accommodate you in the following way' and then suggest a solution," he said. "Make it clear [to the employee that] you're going to periodically monitor [the accommodation]," Segal said, noting that any solution has to work for both the employer and the employee.
Recommendations for Employers
Segal offered the following advice to employers:
- Have a non-discrimination policy that covers religions and creed. "Virtually all employers do," he said.
- Have a reasonable accommodation policy that covers religion and creed. Seven of nine company handbooks he recently reviewed addressed accommodation for physical or mental disabilities but not for religious beliefs, practices or observances.
- Make it clear to supervisors that they should report accommodation requests to HR.
- Train managers on how to avoid illegal practices, respond to requests for accommodation and address complaints about religious harassment.
There have been many cases, Segal said, where a supervisor refused an accommodation request without exploring other ways to accommodate the worker.
*If an employee alleges religious discrimination, respond with: "Thank you for bringing your concern to my attention. We will conduct a prompt investigation and take action if we determine there's been any illegal or otherwise unacceptable behavior" and that the employer will not retaliate in response to complaints of discrimination.
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