Category: Discrimination

Accommodating Religious Beliefs in the Workplace

Accommodating Religious Beliefs in the Workplace

Most U.S. employers are legally prohibited from discriminating in employment based on individuals’ religious beliefs. Unlike most other employment discrimination protections, this aspect of employment discrimination law further requires employers to accommodate employees’ sincerely held religious beliefs.

Applicable Laws

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination because of race, color, religion, sex, or national origin. Under Title VII, employers generally may not take adverse employment action against applicants or employees based on these characteristics. The law disallows both intentional and unintentional discrimination, but does not require affirmative action. However, it does compel employers to provide reasonable accommodations based on employees’ religious beliefs.

Title VII does not apply to religious organizations regarding the employment of individuals of a particular religion. Courts have limited this exception only to organizations whose “purpose and character are primarily religious.” Even where this exemption applies, it only affects hiring and firing decisions. Once a religious organization hires employees of different religions, they cannot discriminate against them regarding pay, benefits, and other similar conditions of employment.

Title VII only applies to employees with at least 15 employees. Many states have laws encompassing religious discrimination and accommodations that apply to smaller employers. For example, the New York State Human Rights Law applies to employees with as few as four employees.

This article focuses on Title VII’s religious accommodations requirements. Similar state laws often have comparable rules. But some will vary in ways that may be relevant to any particular situation.

Sincerely Held Religious Beliefs

Title VII defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

A religion does not have to be well-recognized or observed by many people to qualify an employee for Title VII protection. EEOC compliance guidance states that “religion” includes “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Religious beliefs can even include non-theistic beliefs.

No single rule determines whether an individual sincerely holds a religious belief. Some factors that might undermine asserted sincerity include whether the:

  • employee has behaved markedly inconsistent with the professed belief;
  • requested accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • timing of the request is suspect; and
  • employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The requirement that a religious belief be “sincerely held” only applies regarding religious accommodations.

Religious Accommodations

Accommodations may include any adjustment to the work environment that will allow the employee to comply with their religious beliefs. Requests often relate to work schedules, dress and grooming rules, or religious expression or practice while at work.

The employee must initiate a request for accommodation by notifying the employer of the need for adjustment of work conditions due to a conflict with their religious beliefs. The employee must also explain the religious belief to the employer. The employer may seek additional information. But it cannot go so far as to discriminate against the employee by overly burdening them based on the request.

As with requests for accommodations based on disabilities, employees are only entitled to “reasonable accommodations” that do not impose “undue hardship” on their employer.

To show undue hardship in this context, the employer must identify more than “de minimis” costs of providing the accommodation. The EEOC’s website suggests: “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

Both reasonableness and undue hardship are measured on a case-by-case basis.

Handling Religious Accommodation Requests

Employers (through their managers) must be conscientious upon receiving a request for a change in work conditions related to religious beliefs. Ideally, there should be a procedure in place for receiving and processing these requests. Any sign of hostility toward a request may alone risk a claim of harassment or discrimination, even if no accommodation is due.

At the same time, employers need not automatically grant every request by an employee tied to a religious belief. Some may be unreasonable. Others may not be premised on a sincerely held religious belief. Still others may create an undue hardship. But all requests should be handled carefully so these criteria can be considered and weighed properly.

Employee Handbook

Who Needs an Employee Handbook?

Every business with employees should consider whether and when to implement an employee handbook. Some companies will put a handbook in place even before they hire their first employee. Others will wait until they have an established workforce. So, what is the right time? Do you need an employee handbook now?

Let me be honest up front. I’ve been advising employers on employment law for more than 12 years. And during that time I’ve had mixed feelings about employee handbooks. Sure, it’s nice to have the policies and other information compiled as a resource for employees. However, written policies sometimes tie employers’ hands, limiting flexibility in dealing with employee situations. On the whole, I’m not ready to suggest throwing out the employee handbook. Instead, I suggest having a good handbook that’s carefully tailored to the specific organization.

What Is an Employee Handbook?

Sometimes they go by other names: employee manuals, policy manuals, etc. But I’m talking about some compilation of rules, policies, procedures, and guidelines that the organization prepares and provides to all employees. (As opposed to ad hoc policies or manuals that only go to management or human resources for administrative purposes.)

Most employee handbooks (should) include these general elements:

  • Welcome/Introduction
  • At-Will Employment statement
  • Disclaimer of Company Rights
  • Equal Employment/Anti-Harassment policies
  • Attendance and Leave policies and procedures
  • Timekeeping and Payroll information
  • Employee Benefits summaries
  • Other workplace rules
  • Acknowledgment of Receipt

This is neither an exhaustive nor detailed list. Many elements above may encompass multiple issues spreading across several handbook sections. But this is a good starting point in considering what an employee handbook would look like if your business doesn’t already have one.

Employee handbooks can range from several to 100+ pages. The size of the workforce and number of locations (including where they are located) factor into the length and scope of handbooks. Bigger companies tend to have larger employee handbooks. But even organizations with just a few employees may choose to have comprehensive handbooks depending on the nature of the business.

These days it’s also common for employee handbooks to be digital. Some companies maintain dedicated electronic portals where employees can access the policies. Others may just have a .pdf version available on an intranet. Even if employees don’t receive a physical copy of the handbook, they should always be required to acknowledge their receipt upon hiring and whenever major revisions are implemented.

Purposes of an Employee Handbook

Different organizations may have additional goals in mind, but here are the some of the primary reasons for having an employee handbook:

  • Introduce employees to company culture and values
  • Highlight benefits of working there
  • Establish workplace expectations
  • Provide support for employee discipline
  • Defend against claims of “I didn’t know”
  • Include legally mandated notices to employees
  • Direct employees where to go for help

Employee Handbook Pitfalls

The biggest problem with employee handbooks is that organizations don’t always follow them.

Sometimes this is inadvertent. People just don’t bother to check the handbook before doing something.

Other times, it’s intentional: “Yeah, I know what it says, but we’ll make an exception this time.”

It’s not always wrong to deviate from what’s written in the employee handbook. In fact, employers should expressly state in the handbook that the company can modify their policies at any time. But any modifications should be deliberate and upon consideration of the implications.

Inconsistent application of an employee handbook can provide the basis for employment discrimination claims. Suppose the company makes extra allowance to their leave policy for women, but not men. Despite good intentions, this could upset the men, who might even claim sex discrimination. Obviously, this could work in reverse, and inconsistencies may occur regarding other protected characteristics as well.

There can be issues even when companies follow their employee handbooks carefully. Employers sometimes include illegal provisions in the handbook. Usually, these organizations mean no harm. They are just trying to protect their business. But there are many laws out there that create traps for the unwary.

Here are just a few statements that might well run afoul of the law:

  • “Do not discuss your compensation with other employees.”
  • “Employees will not be paid for unauthorized overtime.”
  • “Do not speak to the media about the Company or its business.”
  • “You cannot solicit fellow employees for any purpose while on Company premises.”
  • “Employees will be expected to work through lunch if necessary to complete assigned tasks.”

Unionized Workforces

Before concluding, I note that when a union represents employees in a workplace, the employer must negotiate over terms and conditions of employment. This typically results in a written collective bargaining agreement, or “union contract.” This agreement most often addresses many issues that an employer without a union would normally cover in the employee handbook. Consequently, much of an employee handbook may not apply to the unionized employees in the organization. But a handbook may still be desirable for unrepresented employees, including management.

Do You Need an Employee Handbook?

If you have read this far, have employees, and don’t have an employee handbook, then your business would probably benefit from having one. However, you must be prepared to take it seriously. This means preparing a handbook that specifically reflects your workplace, distributing it to employees and answering resulting questions, and applying it consistently every day.

 

For help staying up-to-date on legal and practical issues of interest to employers, sign up for my email newsletter here.

Reasonable Accommodations of Disability in Employment

Reasonable Accommodations of Disability in Employment

Most employers know that employees with disabilities may be eligible for “reasonable accommodations”. Fewer know where these obligations come from or exactly what they mean.

Job applicants also have rights regarding reasonable accommodations. This includes accommodations to the hiring process as well as the position sought.

Applicable Laws

The Americans with Disabilities Act of 1990 (ADA) is a federal law that prohibits discrimination in employment (among other areas) against a qualified individual with a disability. (For more on what qualifies as a disability, read What Is a Disability Under the ADA?) The ADA covers employers with at least 15 employees in the United States.

An earlier law, the Rehabilitation Act of 1973 prohibits employers with government contracts (with contracts of more than $10,000) from discriminating against a qualified individual with a handicap. It also protects employees of the federal government from disability discrimination and gives them, like employees of federal contracts, rights to reasonable accommodations.

Finally, many states have laws prohibiting disability discrimination that also require employers to provide reasonable accommodations.

Defining Reasonable Accommodation

Under the ADA, the U.S. Equal Employment Opportunity Commission has issued regulations defining reasonable accommodation to mean modifications or adjustments:

  • to a job application process that enable a qualified applicant with a disability to be considered for the position the applicant desires;
  • to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position; or
  • that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by the employer’s other similarly situated employees without disabilities.

The regulations further explain that accommodations may include:

  • making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
  • job restructuring;
  • part-time or modified work schedules;
  • reassignment to a vacant position;
  • acquisition or modifications of equipment or devices;
  • appropriate adjustment or modifications of examinations, training materials, or policies;
  • the provision of qualified readers or interpreters; and
  • other similar accommodations for individuals with disabilities.

According to the U.S. Supreme Court, a modification or adjustment is “reasonable” if it “seems reasonable on its face”. This means the accommodation appears to be “feasible” or “plausible”. It must be also effective in meeting the needs of the employee.

Undue Hardship

Even if an accommodation is “reasonable,” an employer does not have to provide it if it imposes an undue hardship on the business. Whether an accommodation would create an undue hardship must be determined case-by-case.

“Undue hardship” means a significant difficulty or expense in consideration of the:

  • nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding;
  • overall financial resources of the facility or facilities involved, the number of persons employed at the facility, and the effect on expenses and resources;
  • overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees, and the number, type, and location of its facilities;
  • type of operation or operations of the employer, including the composition, structure, and functions of the workforce and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the employer; and
  • impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

Similar factors and analysis of reasonable accommodations and undue hardship apply under the Rehabilitation Act and most state disability discrimination laws.

Evaluating Accommodations

In seeking an accommodation, the applicant or employee with a disability must let the employer know that they need an adjustment or change at work for a reason related to a medical condition. The person may use “plain English” and need not specifically mention any legal entitlement or use the phrase “reasonable accommodation.”

Employees do not have a right to every accommodation they seek. Even if the employee’s proposed accommodation is reasonable and does not impose an undue hardship, the employer may choose an alternative accommodation that meets the employee’s needs.

When the availability or reasonableness of accommodations is in question, employers must engage in an “interactive process” with the employee. The EEOC suggests that the employer should give primary consideration to the employee’s requested accommodation. However, the employer may provide the least expensive effective accommodation or the one that is the easiest to provide.

Limits on Reasonable Accommodations

It’s often difficult to determine how far to go in accommodating an employee. But employers can bear these limits in mind.

  1. Performance standards regarding quality or quantity need not be lowered as a reasonable accommodation.
  2. Jobs don’t have to be restructured in a way that eliminates essential functions.

Preparing to Accommodate Disabilities

Employers should have policies and procedures in place for receiving and processing disability accommodation requests. Managers and supervisors must understand when an employee has made a request for accommodation. Otherwise, they might unlawfully ignore a sufficient request. That can result in improper discipline or other undue adverse impact to the employee.

When management receives an accommodation request, it must not jump too quickly to conclusions about the feasibility of the request. Even expensive accommodations could be reasonable, and grants or other financial support may be available to defray the costs.

The United States Department of Labor’s Office of Disability Employment Policy provides relevant services through the Job Accommodation Network (JAN). JAN provides information regarding available workplace accommodations to individuals and employers of all sizes.

Once accommodation options are on the table, an experienced employment attorney can help management evaluate the risks of declining to accommodate.