THE MAGAZINE

When Faith and Work Clash

By Dudley Rochelle

Coworkers. The courts have also said that undue hardship exists when coworkers themselves, not just the company, are adversely affected by having their work schedules detrimentally altered or their workloads significantly increased. For example, if any employer has to build an expensive apparatus, change the production process in a manner that significantly affects efficiency, allow employees to be absent during assembly-line work (thereby affecting the quality of the finished product or the demands on the remaining workers), or allow the employee to be the only one able to avoid weekend work, it is likely that undue hardship could be established, and the employer would not be required to accommodate the request.

For example, in one case (Bruff v. North Mississippi Health Services, U.S. Court of Appeals for the Fifth Circuit, 2001), Sandra Bruff, a counselor who worked for an employee assistance program, refused to counsel a homosexual woman on her relationship with her partner. Bruff said that the client’s homosexuality conflicted with her Christian religious beliefs.

The client complained to her employer, who in turn complained to Bruff’s clinic. Upon request, Bruff submitted a memo detailing what counseling duties she wanted to be excused from. Bruff indicated that she did not want to counsel homosexual or unmarried people on their relationships.

Company managers met several times to determine whether they could accommodate Bruff’s request by shifting responsibilities among the three counselors. Managers determined that this was not feasible, because other workers already had full work schedules. Bruff was relieved of her counseling responsibility and put on leave without pay.

Bruff appealed the decision to the vice president of the company. The vice president offered to transfer Bruff to a section of the company specifically tasked with performing Christian counseling. Bruff declined, saying that the director of that section held Christian views that were too liberal. After several months and numerous meetings, Bruff was fired.

She sued her employer for religious discrimination. A jury found in her favor and she was awarded $300,000 in damages. The company appealed the decision.

The appellate court overturned the jury verdict, finding that the company’s attempt to accommodate Bruff had been sufficient and that further accommodation would be a hardship on her coworkers. Further, the court noted that Bruff knew of her job duties before she accepted the position.

She did not discuss her needs with her employer but, according to the written opinion of the case, “apparently assumed that she would only have to perform those aspects of the position that she found acceptable.” The court found that employers are not required to accommodate such inflexible positions.

Inconvenience. The courts have ruled that forcing an employee to deal with a mere inconvenience in trying to meet religious requirements is not sufficient grounds for a discrimination claim. For example, in Dachman v. Shalala (U.S. Court of Appeals for the Fourth Circuit), a Jewish employee, Rebecca Dachman, requested that she be allowed to leave early on Friday to observe the Sabbath. her employer agreed and granted two hours leave on Friday afternoon.

Dachman insisted that this was insufficient time to pick up special bread for her Sabbath meal. Dachman was fired from her job for performance issues.

She sued her employer, claiming that she was fired for requesting time off for religious reasons, namely time off to pick up her bread on Friday afternoon. The court found that Dachman was properly fired for well-documented performance issues, so she had no basis for a religious discrimination claim.

The court ruled that an employer need not accommodate every religion-based request that an employee makes and does not have a duty to accommodate an employee’s mere preferences. In this case, the court noted that the bread was on sale Thursday night and that Dachman had a choice in how to meet her religious needs and could do so without seeking accommodation from her employer.

Courts have also emphasized an employee’s responsibility in making religious accommodation requests. First, the employee must demonstrate that there is a conflict between a work requirement and a religious requirement.

If the conflict can be removed by the employer, that is a complete accommodation, regardless of the employee’s preference for a different accommodation. This is really just another way of saying that employees can’t sue just because they feel inconvenienced.

For example, if the afternoon shift schedule interferes with prayers or a religious service, and the employee asks for time off, a complete accommodation proposed by the employer could be to move the worker to the later shift. If the pay and opportunities are equal, it is a complete accommodation.

If the employee does not accept this option, the employer is still protected in case of a lawsuit. As long as the accommodation removes the conflict between religious duties and work, the employer does not have to offer the employee’s preferred accommodation.

Beyond the law. Many employers are willing to go a bit further than the law might demand in making allowances for religious observance. However, they must be careful not to accord this extra allowance to only one religion or group.

If, for example, an employer grants Somalian immigrants prayer breaks during the day, regardless of the effect on production, then the company must handle any other request for prayer breaks in a similar manner. The next group that asks may have a discrimination claim if it is not accommodated to the same level.

Working together. Recent decisions have emphasized that the accommodation discussion requires bilateral cooperation.  Both employer and employee must address and discuss the possible solutions that would erase the conflict between work and religious duties.

The bilateral cooperation expectation is designed to help the parties find some middle ground. But if no solution can be found that would not cause undue hardship, no accommodation is required.

Dress Codes
A frequent issue in any business that requires employees to wear uniforms is whether an employee must comply if the uniform does not allow head coverings, facial hair, piercings, tattoos, or similar adornments, which may be based on religious practices.

Companies would be better prepared for these requests if they considered religious practices when adopting uniform standards, but this is rarely done.

When such a request arises, companies must consider the accommodation if it is based on religious requirements, not personal preferences. These cases are subject to the same undue hardship limitation as any other religious accommodation.

For example, in one case (Cloutier v. Costco, U.S. Court of Appeals for the First Circuit, 2004), the plaintiff contended that her various body piercings were required due to her membership in the Church of Body Modification. The court ducked the issue of whether this group was in fact a religion. However, the court ruled for Costco, saying that relaxing the company’s no-piercing policy would be a hardship in that it was likely to have a negative effect on customer relations, and the employee need not be accommodated.

Employers must, of course, make sure that any uniform policy is, indeed, uniform. If enforcement is lax, employees denied the right to wear special religious accoutrements may interpret the employer’s refusal of an accommodation request as religious discrimination.

If uniform standards vary by customer location, the employer should consider whether the request may be addressed by a transfer to another location where uniform standards are more relaxed or nonexistent. If a transfer removes the conflict between the religious requirement and the uniform, it is a valid accommodation regardless of whether the employee requested the transfer.

But the transfer offer must be reasonable. A valid accommodation would be to offer a transfer within a metro area or within a short distance. Telling someone living in Cincinnati that you can accommodate them only if they are willing to live in Louisiana would not be considered a valid accommodation.

In situations where a company, such as a guard service provider, supplies personnel to various posts, it is advisable to have post orders describing the uniform that will be required. Having the dress code in writing provides a basis for the company’s standards on that site.

Although it has long been established by the courts that mere customer preference does not excuse race and other types of discrimination, no court has ruled that a company must endure the loss of a contract due to a failure to meet uniform requirements. That would suggest that religious exceptions that run counter to the dress code the client wants might create an undue hardship. However, if the post orders or other written policies are routinely ignored or abridged until the religious believer comes along and asks for an exception, those orders cannot form the basis for a valid denial of the request.

If the uniform applies to all locations or a lateral transfer is not available, then the company will have to consider adjusting the requirements for the individual employee. This analysis must take into account the customer and company concerns, but if the customer has not previously mandated uniform standards, the company’s imposition of them may be questioned.

Dress codes may be driven by more than aesthetics; factors such as safety may also come into play. For example, courts have recognized the need for women working near machinery and in correctional facilities to wear pants rather than a long skirt or dress. Thus, safety concerns may trump religious ones in those circumstances. The same would apply to protective gear.

In one case (Birdi v. United Airlines, Corp., U.S. District Court for the Northern District of Illinois, 2002), a Sikh employee insisted on wearing his turban, which was inconsistent with the company dress code. The company refused even though he did not have face-to-face contact with the public. The company proposed six different alternative positions to him, but he contended that each position was inadequate accommodation. The court determined that the company had  offered reasonable accommodation.

Another Sikh employee, Charan Singh Kasli, sued the New York City Transit Authority for religious discrimination because he was fired for failing to wear a hard hat (Kasli v. New York City Transit Authority, U.S. District Court for the Eastern District of New York, 1999). He refused to put the hard hat on over his turban, as the company suggested.

After reviewing the need for protective hard hats in carrying out the duties of the position, the court ruled for the employer, stating that Kasli failed to present facts suggesting that his termination was motivated by religious animus. The court found that accommodating the employee would mean compromising workplace safety and was, thus, an undue hardship.

Where safety is not an issue, no clear precedent helps employers to understand when they must grant accommodations of head coverings. Although a number of cases involve employees with head coverings, these cases do not offer definitive guidance because they were decided on other legal grounds and did not address the specific legality of head covers.

In one case (Ali v. Alamo Rent-A-Car, U.S. Court of Appeals for the Fourth Circuit, 2001), a woman made a request to wear a headscarf, but the court decided the case on grounds unrelated to religious discrimination and held that transferring her to a position that did not have contact with the public was not an adverse action. However, the court also noted that the employer was not necessarily required to accommodate the employee’s religiously mandated garb. In this case, the court signaled that not all religious clothing must be accommodated.

On the other side of the issue, a recent case declared that a woman who was disciplined because she wore her Muslim garb at work had established a case for discrimination (Davis v. Mothers Work, Inc., U.S. District Court for the Eastern District of Pennsylvania, 2005).

Betty Davis worked at a clothing store, Mothers Work, Inc. Shortly after starting work, she converted to Islam and began wearing Islamic overgarments, a full-length robe, and head scarf. This conflicted with the employee dress code policy, which also provided that the store management should contact human resources about any religious issues that arose out of the policy.

Davis claimed that she was ordered to go home and remove her outfit because it was inconsistent with the policy. She explained the reason for her dress and sued the company for religious discrimination.

The company requested summary judgment—a hearing based on the facts of a case without a trial. In the lawsuit, the store manager disputed Davis’s version of the events. The manager said that she told Davis to leave the store while she contacted HR, and Davis never told her she was a Muslim. The manager testified that she believed the overgarments were a Mormon outfit.

The court refused to grant summary judgment, allowing Davis to pursue her religious discrimination claim. The court noted that Davis had presented substantial evidence that she was treated differently because of her religious attire. Examples include requiring her to change out of the religious overgarments on one occasion, changing her work schedule on other occasions, watching her more closely than other employees, and making remarks about her religious garb.

Further, the manager’s rather surprising claim that she thought Davis was a Mormon, not a Muslim, did not absolve the company of culpability. Either way, she was treating Davis differently based on her religion. 

It is possible to establish, in some situations, that religious dress is not appropriate and accommodation is not required. As noted earlier, that might be the case if a situation involved safety or security issues.

On the other hand, mere dislike, distaste, or “customer preference” without a valid basis may not be sufficient to deny accommodation. Each situation must be reviewed, taking into account the employee’s and the company’s concerns.

Security professionals and other managers will continue to face religious accommodation and discrimination issues as the population becomes more diverse. They must be prepared.

Good antiharassment and accommodation policies, clear standards of dress and behavior, an understanding of how to patiently work through accommodation requests, and a willingness to discuss these matters directly with employees are the keys to success in protecting your company from liability arising out of religious discrimination and harassment claims.


Dudley Rochelle is an employment defense lawyer, specializing in religious discrimination and harassment, with the national employment law firm, Littler Mendelson, P.C., in the firm’s Atlanta office. @ To obtain her “Ten tips for employers to avoid religious discrimination,” visit Security Management Online.

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