Expert: Consistency, Training Help Avoid Religious Bias Claims

By Rebecca R. Hastings, SPHR May 20, 2010
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The best way to reduce unlawful employment decisions based on religion is to “be consistent and train your supervisors and managers,” according to Chris M. Mason, a partner in the Phoenix office of Fisher & Phillips, LLP. “Employers need to be consistent, because it’s the one time they aren’t consistent that they will find themselves in trouble.”

Employers can try to ensure consistency in employment practices, he said, by:

  • Using written objective criteria for evaluating candidates for hire and promotion, including a uniform application form.
  • Asking identical interview questions.
  • Recording accurate business reasons for discipline and termination.

But such practices must be supported by supervisory training and clear policies, he added during the May 13, 2010, webcast “Accommodating Religious Beliefs and Practices in the Workplace.”

“We are seeing today a trend toward more active expression of religion in today’s workplace,” said Regina A. Petty, a partner in the San Diego office of Fisher & Phillips, LLP, who co-presented the webinar. “This will be a continual challenge for employers to deal with.”

Understanding what constitutes religious discrimination is the first step toward prevention.

According to the web site of the U.S. Equal Employment Opportunity Commission (EEOC), “Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs.”

But the definition of “religious belief” is broad, according to Petty, and includes all aspects of religious observance and practice, even if the belief is held by just one or a few people. Even nonbelief is protected, she added.

As noted on the EEOC web site: “The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.”

It is irrelevant whether others consider the belief system to be real or illogical, and it doesn’t matter if it’s a personal practice of a person within their religious system as long as it falls within a religion that deals, generally, with life, death or values, explained Petty.

However, personal preferences and social, political or economic philosophies do not qualify as religious beliefs, Petty added.

By way of example, Petty highlighted a “hypothetical” case, one in which an employee requests time off to attend a conference for Jehovah’s Witnesses. Though some employers might at first believe that such a request falls outside of the practice of religious beliefs, such as attendance at worship services or mandatory prayer times, they would be wrong. “The company should have permitted the employee to take the two days off unless they could establish undue hardship,” Petty said.

AT&T faced just such a situation in 2005. Two employees, after being denied leave to attend a Jehovah’s Witnesses convention, chose to attend the event anyway and were dismissed for job abandonment and insubordination. A jury found AT&T liable for bias and awarded $756,000 in damages, including lost wages, to the men.

Types of Religious Discrimination

Religious discrimination falls into three broad groups, Petty explained: disparate treatment, harassment and failure to accommodate.

Disparate treatment means treating some employees different than other employees because of their religion, Mason explained, and “encompasses all employment practices” including recruitment, hiring, promotion, discipline, discharge, compensation and other conditions of employment.

Religious harassment is conduct that takes one of two forms, Mason explained:

  • Religious coercion, such as when an employee is required to attend prayer vigils or Bible studies on an employer’s premises, in exchange for a benefit or protection from adverse action.
  • Hostile work environment harassment, such as conduct related to religion that is unwelcome and severe or pervasive. This is the more common type of harassment, Mason explained, and is the type of complaint an employee might make about a co-worker.

Employers are always going to be liable for supervisors who engage in religious harassment, Mason noted. “Supervisors and managers always need to be on guard about their own behavior and the behavior of fellow supervisors and managers,” he said, adding that this is why employers should “make sure the best people are selected for those jobs.”

However, “Employers aren’t automatically liable in every case when an employee harasses a co-worker,” he said, and they can be held liable for the behavior of vendors and customers only if the employer can exercise some control.

Therefore, an employer’s liability will depend on the circumstances, the identity of the harasser and the steps the employer takes when it becomes aware of it.

Mason said that employers can protect themselves by:

  • Ensuring that harassment policies cover all types of harassment, including religion.
  • Making sure that new employees and continuing employees have a copy of the current policy.
  • Training employees annually, or at least every 18 months (if permitted by state law), and ensuring that new employees are trained.
  • Allowing religious expression to the same extent that other forms of expression are allowed, such as discussions of politics or the economy.
  • Taking steps to end conduct when employees object to it.
  • Intervening immediately when employers become aware of abusive or insulting conduct.

“One of the difficult issues most employers face is the right on the one hand of employees to express themselves and the right on the other hand to be free of coercion,” Mason said, such as when an employee is opposed to homosexuality on religious grounds and posts signs or makes remarks that are perceived by others as offensive.

“When an employee raises a concern, the best practice is for employers to respond,” Mason added, by examining the conduct and documenting the action they take to address the complaint.

Religious Accommodation

According to Mason, an employee might require religious accommodation when his or her religious beliefs or practices conflict with an employer’s needs, such as those related to work schedules and dress and appearance requirements.

The EEOC web site states that an employer must “reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.”

One factor employers can consider is whether or not a belief is “sincerely held.” If an employer has doubts, they should look to EEOC guidance, which notes that the following factors might undermine an employee’s assertion that he or she holds a religious belief sincerely:

  • Whether the employee has behaved in a manner markedly inconsistent with the professed belief.
  • Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons.
  • Whether the timing of the request renders it suspect (it follows an earlier request by the employee for the same benefit for secular reasons).
  • Whether the employer otherwise has reason to believe that the accommodation is not sought for religious reasons.

An employer can make a limited inquiry, such as basic Internet research, about an employee’s request and beliefs if there is bona fide reason to doubt their request, Petty said. However, an employer cannot contact a clergy person or request written proof of their beliefs.

The burden is on the employer to prove that an accommodation will pose an undue hardship, Mason stated. Because each case will be considered individually if challenged, he recommends that employers review each case carefully before denying an accommodation. “There are nuances,” he explained. “Accommodation may work in some areas of the company and not in others.

“Creativity comes in handy here,” Mason added. An employer should look at the heart of the request, he said, to find ways to accommodate the need in a way that will not create an undue burden on the employer.

Mason said the most common types of accommodation requests relate to work schedules, such as requests to keep the Sabbath on Saturday or Sunday, attend services, pray, study or attend meetings. Employees might request accommodation in other situations, however, such as when work responsibilities or grooming standards conflict with beliefs.

When it comes to attire and grooming requirements, Mason suggested that employers take a close look at their policies to see if the things they mandate are “absolutely instrumental” to the workplace.

But policies are not enough, Mason noted. An employer’s nondiscrimination policy should be backed up ​by training, he said, to help supervisors identify requests for accommodation and avoid stereotypes and assumptions. “Treat every request individually,” he said.

However, supervisors should not go it alone, Mason noted. He recommends the active involvement of an organization’s HR staff in reviewing, documenting and monitoring religious accommodation requests.

Rebecca R. Hastings, SPHR, is an online editor/manager for SHRM.

Related Articles:

Religious Expression: The Devil Is in the Details, SHRM Online Employee Relations Discipline, April 5, 2010

Make Sure Religion at Work Stays on Right Side of Line, SHRM Online Diversity Discipline, March 30, 2010

Training Can Help Prevent Religion-Related Gaffes, SHRM Online Diversity Discipline, Jan. 26, 2010

Requests for Sabbath Time Off Require Careful Response, SHRM Online Employee Relations Discipline, June 30, 2009

Consider Religious Beliefs When Scheduling Events, SHRM Online Diversity Discipline, May 18, 2009

Religious Accommodation Expected for Employees in Uniform, SHRM Online Employee Relations Discipline, Oct. 15, 2008​
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