THE MAGAZINE

When Faith and Work Clash

By Dudley Rochelle

Trending Up
Religious discrimination charges get filed with the Equal Employment Opportunity Commission (EEOC). Looking at those statistics, it is clear that such claims make up only a small percentage of the total number of discrimination charges, including sex, age, race, national origin, color, and disability claims. But over the last ten years, claims of religious discrimination have been increasing dramatically.

Charges filed with the EEOC have risen from 1,449 in 1993 to a peak of 2,572 in 2002, although the numbers have dropped back slightly in 2004 to 2,466. The 9-11 attacks, carried out by the radical Muslim group al Qaeda, also led to a rise in discrimination claims by followers of Islam in the U.S.. Since then, the EEOC has placed special emphasis on investigating categories related to Islamic beliefs or national origin.

Because Muslims need time and space to pray during the workday, they are more likely to have to ask for accommodation in the workplace than a person whose religion does not demand formal prayer during work hours. But other sects have also begun to make demands for religious-activity accommodation at work. Increasingly, a broad spectrum of religious groups are asking their employers for accommodations such as lunchtime prayer groups, religious studies, and company-provided chaplain services.

Legal Limits
Religious activities in the workplace are lawful as long as they are voluntary, open, and noncoercive. When the culture becomes coercive, results in harassment, or affects employment opportunities, then religious discrimination has occurred.

For example, in September the EEOC sued an operator of gas stations and convenience stores who provided a chaplain for employees, because when a Jewish employee declined the chaplain service, the company president sent a coworker to ask why.

The employee was also regularly subjected to company e-mail that contained religious messages. just before she went on vacation she requested that she not be included on the mailing.

After returning to work, the employee was told by her supervisor that “things are not working out,” and she was fired. In announcing the lawsuit, the EEOC regional attorney noted that workplace religious activities are not unlawful and that “employers must reasonably accommodate the religious beliefs of their employees and employers may themselves endorse and make available, on a wholly voluntary basis, religious services and practices. What employers cannot do is force any particular religious creed or practice upon their employees.”

Though no one can be totally prohibited from expressing his or her faith to coworkers in the workplace, there are limits to that expression, which are based on antiharassment standards. The expression must not be unwelcome to the recipient, but the recipient is not required to speak up at the time of the expression to have a claim of harassment later. Therefore, employees must be sensitive in gauging whether religious expression is appropriate.

Reasonableness. Any religious expression at work must also not be made in a manner that would be offensive to a “reasonable person.” The reasonable person standard protects employees and employers from complaints from coworkers who are unusually sensitive. In addition, religious expression must not be severe or pervasive enough to adversely affect the recipient’s working environment.

The term “faith-friendly companies” has arisen recently to describe businesses that create environments that encourage employees to participate in religious activities and feel free to talk about their religious beliefs. These companies must simultaneously strive to have effective and well-enforced antiharassment policies and practices if they are to avoid subjecting themselves to charges of harassment and discrimination.

Written Policy
At a minimum, all employers should have a comprehensive written policy that explicitly prohibits religious harassment and discrimination and encourages staff who feel harassed to make complaints.

The policy should outline how complaints will be investigated. The company must then ensure that it trains managers in how to recognize signs of harassment and how to respond to allegations.

It is equally important to make sure that employees are aware of the policy. A company may do this as part of an overall policy against discriminatory behavior, which may include prohibitions on other forms of harassment as well.

Accommodation
Employers must not only refrain from discrimination, but they must also take action to receive, review, and address requests for religious accommodation.

In the past, religious accommodation cases were dominated by requests to take leave from the workplace for religious observances. More common today are cases dealing with dress codes and religious speech and religious practices inside the workplace.

Undue hardship. Each accommodation request must be analyzed and considered according to the standard of whether it causes undue hardship to the employer. Unless the company can show “undue hardship,” it will generally be required to allow the request.

This may sound as though the worker is likely to prevail. In practice, however, the undue hardship standard favors the company.

The U.S. Supreme Court set the standard for what constitutes an undue hardship to the employer in Trans World Airlines v. Hardison (1977). That case established that determining an undue hardship depends on the facts and circumstances of each case, and boils down to whether the employer acted reasonably. Undue hardship may be established if the employer would be required to spend even a minimal amount of money to accommodate the request.

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