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Judy Greenwald

Flexibility is key to helping employers avoid religious discrimination claims

Requests for time off, religious dress should be treated with sensitivity

June 22, 2014 - 6:00am



Avoiding religious discrimination claims often is more about accommodating employees' schedules and allowing latitude on headwear rules as it is about hiring, promotion or harassment issues.

Religious discrimination, which often is combined with national origin claims by the Equal Employment Opportunity Commission, is an ongoing, troubling issue for employers, observers say.

For instance, New York-based Tanenbaum Center for Interreligious Understanding found in a national survey last year that more than one-third of workers report observing religious bias or being subjected to it on the job.

According to the EEOC, 3,721 charges of religious discrimination were filed in fiscal 2013, which was down from 3,811 in 2012 and the 2011 peak of 4,141. While two out of three cases were determined to have no reasonable cause, observers say the issue persists for employers.

“The principal ways you see religion in the workplace coming up is when employees request accommodations so they can observe their religions,” such as asking for Friday off to go to the mosque, said Elizabeth Torphy-Donzella, a defense attorney and partner at Shawe Rosenthal L.L.P. in Baltimore.

Grooming that includes beards and dreadlocks, religious headgear and the acceptability of uniforms also can pose religious discrimination issues. In March, the EEOC issued two technical assistance publications on religious dress and grooming under Title VII of the Civil Rights Act of 1964. Included was advice against assigning employees to a noncustomer service position because of their religious garb.

Particularly after the Sept. 11, 2001, terrorist attacks, “there were quite a few cases involving Muslim individuals who wanted to wear their headgear, or their hijabs, and were terminated,” Ms. Torphy-Donzella said.

Employees may not specifically say why they want to modify their uniform or that they want the time off for religious reasons, said Peter J. Gillespie, of counsel at Fisher & Phillips L.L.P. in Chicago.

Managers may “need to step back and try to recognize that could very well be the reason driving” the request, so they avoid the-company-should-have-known argument later even though the issue was not raised directly, he said. “The better course is to ask for clarification from the employee” why they are making the request.

Employers “need to revisit” their anti-discrimination policies, which should bar religious discrimination as well as provide reasonable accommodation of religious beliefs and practices. Although most employers prohibit religious discrimination, few go this “extra step,” said Douglas J. Farmer, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart P.C. in San Francisco.

“If you do have a dress code, then I think you have to recognize there may be a requirement to reasonably accommodate somebody” if they have a bonafide religiously-held belief, said Paul Kehoe, senior counsel at Seyfarth Shaw L.L.P. in Washington.

Employers should be aware that while they have an obligation to engage in an interactive process with the employee, the request must be reasonable without creating an undue hardship on the company, said Richard B. Cohen, a partner at Fox Rothschild L.L.P. in New York. “At times, that's not easy,” he said.

Employers should avoid questioning the worker's sincerity or strength of their religious beliefs when a request is made. “They should take that as a given, unless there's evidence to the contrary,” Mr. Cohen said.

Accommodations could include asking a Muslim who requires prayer breaks to take a shorter lunch, or work an extra hour a couple of times a week, he said.

Jewish and Christian employees also can raise religious accommodation issues to take time off for the Sabbath, Ms. Torphy-Donzella said.

“You don't have to be (a member of) one of the major religions to invoke the right to practice your religion freely,” Mr. Cohen said. As long as an employee has sincerely held beliefs, “that would be sufficient,” he said.

Much also depends on where the employer is located, said plaintiff attorney Michael Kraemer, a partner at Kraemer, Manes & Associates L.L.C. in Pittsburgh.

In areas of the country that have less workforce diversity, “you find a lack of the same kind of understanding” as in urban areas, he said. “It's not necessarily discrimination. A lot of folks don't really realize they're doing it.”

 



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