October 16, 2013

Three Questions Employers Should Ask About Religious Accommodation Requests

A recent survey by the Pew Research Center reports that 58% of Americans say that religion is very important in their lives and 76% of Americans say that prayer is an important part of their daily lives.  The survey also shows that an increasing number of Americans adhere to religions, like Islam, Hinduism, Buddhism and Mormonism, which were not nearly as prevalent 20 years ago.  To be sure, the increase in diversity of religions and the large number of Americans that closely observe religious practices has led to increased challenges for American employers, especially when those practices conflict with workplace requirements.Those challenges have been laid bare by a recent decision from a federal judge in San Francisco finding that Abercrombie & Fitch had discriminated against a Muslim employee by refusing to allow her to wear a hijab, a head scarf, while at work.

Abercrombie has a “Look Policy” which requires employees to wear clothes similar to those sold in stores and it prohibits employees from wearing any type of headwear.  After several months, a regional manager came for a regularly scheduled visit at a Northern California store and he saw that Umme-Hani Khan, a saleswoman, was wearing a hijab.  The manager twice asked Khan to remove her hijab and she said she could not because it was a part of her religion.  Ultimately, Abercrombie terminated Khan’s employment.

In EEOC v. Abercrombie & Fitch Stores, Inc., Judge Yvonne Gonzalez Rogers of the Northern District of California took the rare step of granting summary judgment to the EEOC, finding that Abercrombie discriminated against Khan because of her religion by terminating her employment for refusing to take off her hijab at work.  In particular, Judge Rogers found that Khan’s request to wear a hijab was a sincerely held religious belief, that it conflicted with the “Look Policy” and that wearing a hijab did not pose an “undue hardship” on Abercrombie.  In particular, Judge Rogers found that the company’s belief that Khan’s dress would affect store performance or brand image was an “unsubstantiated opinion” that was not supported by hard evidence.

The decision has been controversial, not only because it involves a prominent retailer with stores in malls and shopping centers all across the country.  It also exposes an increasing conflict between employers, especially in retail and service industries, who find that their employees’ religious practices have a tangible detriment on their business.

For practical purposes, the Abercrombie decision highlights three common issues faced by employers involving an employee’s religious practices.

1.    Does An Employee’s Bona Fide Religious Belief Conflict With An Employment Duty?

In the Abercrombie case, there was no question that the “Look Policy” conflicted with Khan’s religious belief, since it expressly prohibited an employee from wearing any type of headwear, including a hijab.  But, it is not always that clear.  Consider Chenzira v. Cincinnati Children’s Hospital, a recent decision involving a hospital in Cincinnati that required its medical professionals to get flu vaccines.  An employee refused to do so because the flu vaccines all contain animal byproducts and she was a vegan.  The EEOC sued and a judge refused to dismiss the claim on the ground that veganism is not a religion, but rather a dietary restriction or an ethical belief.

Would that decision stand up on appellate review?  Probably not.  An appellate court has already rejected the notion that veganism is a religion, both because there is nothing religious about refusing to eat animal byproducts and also because one can only imagine the floodgates that such a decision would open if it were upheld.

But it does expose the two significant issues employer must consider.  The first is whether an employee have a bona fide religious belief.  In Chenzira, despite what the judge said, veganism is almost certainly not a religion.  But in the Abercrombie case, there is no question that Islam is a religion and there was no question that the employee was a practicing Muslim.

An employee need not be devout in order to avail himself of his right to legal protection.  But, at the same time, the religious matter for which he needs an accommodation must actually be: (1) an obligation, not a preference; and (2) an obligation the sincerely adheres to.

In the Abercrombie case, for example, Islam arguably requires women to wear a head covering, but not all Muslim women do it.  Had this employee not regularly worn a hijab, then the result would have unquestionably been different.

 2.       Does An Accommodation Impose An Undue Hardship?

Even when an employee has a sincerely held religious belief that conflicts with his work, an employer does not have to accommodate it when doing so would impose an “undue hardship” on the employer.  But what is and is not an undue hardship varies from case to case, depending on the nature of the accommodation requested, the size of the employer and the nature of the hardship that is imposed.

Although there are many cases which stand for the proposition that anything more than a de minimis cost on an employer causes an undue hardship, the means of proving a hardship have proven elusive.  The Abercrombie case exemplifies this dilemma perfectly.  Numerous employees testified that deviation from its Look Policy would “detract from the in store experience and negative affect its brand.”  But the court found that testimony to be self-serving and speculative.  There was no objective proof that economic harm or any harm would befall the store by allowing employees to wear religious dress.

Compare that to a line of cases involving public safety positions where the courts have found that an employer’s need to ban the wearing of yarmulkes or dreadlocks by fire and police officers was legitimate.  In those cases, the courts have found that the public safety interest involved heavily outweighs the need for a religious accommodation.

So, how do employers gauge whether an undue hardship exists?  There are a few hard and fast rules. Generally speaking, if a requested accommodation imposes an undue hardship if: (1) it would require an employer to take action that would harm other employees; (2) it would put the employee or the employer’s customers in risk of harm; (3) it would violate a collective bargaining agreement; or (4) it would impose some tangible, measurable harm.  In the Abercrombie case, the judge found that none of these hallmarks was present or, at least, there was not enough evidence that the store would suffer tangible harm.

3.       Are Any Reasonable Accommodations Available?

The requirement to provide a reasonable accommodation to employees is tied in large part to the undue hardship issue.  The courts employ a “no harm, no foul” methodology.  That is, if an employer can establish that the only accommodation to an employee would impose an undue burden on it, then it has no obligation to try to find a reasonable accommodation for the employee.  And, an employer does not need to provide an employee with the specific accommodation he requested; it only has to provide a reasonable accommodation.

In most cases, employers would be well-served to do what they do when an employee asks for an accommodation to a disability.  That is, when an employee requests an accommodation to a religious practice, the employer should have an interactive discussion with the employee – a brainstorming session – to see if there is some way that the employee’s religious obligations can be accommodated without imposing a burden on the employer’s operations.

For example, in Daniels v. City of Arlington, a city did exactly the right thing when it refused a police officer’s request to wear a religious symbol on his uniform.  But rather than issuing an ultimatum, the city sat down with the officer and offered him three alternatives, namely to wear the symbol on a bracelet, on a necklace under his uniform, or to transfer to a non-uniformed job.  The court dismissed the case because the employee rejected all three proposals.

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To be sure, not all cases will allow for clean endings to seemingly intractable disputes.  But the more effort an employer puts in to find a reasonable accommodation, the more likely a court will be to grant judgment to the employer.

Religious accommodation cases are unquestionably on the rise with the increase in diversity of religions and the number of Americans who view religion as very important in their lives.  Not every religious accommodation case is cut and dry and most involve several simultaneously moving parts.

But unlike many issues, there is a body of law on religious accommodations and it is relatively straightforward.  By asking and answering the three questions in this article, employers should be able to navigate this minefield successfully.