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Tammy C. Woolley: Back to Basics: Religious accommodation

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Title VII of the Civil Rights Act of 1964 is the federal law that prohibits discrimination based on race, sex, national origin, color and religion. As discussed previously, “discrimination” means treating someone differently (less favorably) because of one or more of these characteristics.

So, all an employer has to do is treat everybody exactly the same way and there should be no problem, right? While that is a good start, sometimes treating everybody exactly the same is not fair and doing the right thing requires us to treat people differently. In the employment context, that obligation to treat people differently is known as “reasonable accommodation.”

Title VII in its original form prohibited religious discrimination but didn’t require religious accommodation. But in 1970, a federal appeals court found in favor of an employer who fired an employee for refusing to work on Sunday because of his religious beliefs.

The court held that the employer didn’t discriminate because it made all its employees work on Sundays when needed. In other words, the employer treated the employee with the religious need the same way it treated everyone else. The case was affirmed by the U.S. Supreme Court, meaning that the lower court decision was left in place. About a year later, Congress amended Title VII to add a religious accommodation obligation.

As a result of the amendment, if an employee has a religious belief or practice that conflicts with a job requirement, the employer must at least try to accommodate the employee unless doing so would be an “undue hardship” for the employer. An “undue hardship” is defined as anything more than a “de minimis” (insignificant) difficulty or expense.

When deciding whether to make a reasonable accommodation for an employee’s religious beliefs or practices, the employer should ask itself three questions:

1) Is the employee’s belief or practice “religious” in nature? If no, there is no duty to make reasonable accommodations. This came up a good bit last year with COVID-19 vaccines, as I wrote about.

If an employee objected to the vaccines because of fear for his health or for political reasons, then there would be no right to religious accommodation. On the other hand, if the employee believed it would be a sin to get the vaccine, then the employer would proceed to Question 2.

2) Is the employee’s religious belief sincerely held? Employers are supposed to give the employee the benefit of the doubt on this point, but there are situations in which the employee’s belief is clearly not sincere. If the belief is or appears to be sincere, proceed to Question 3.

3) Would accommodation involve more than a minimal expense or disruption for the employer? In other words, would it be an “undue hardship” to accommodate? If no, then accommodate. If yes, then don’t.

Tammy C. Woolley is senior counsel in the Opelika, Alabama, office of Constangy, Brooks, Smith & Prophete LLP, and can be contacted at twoolley@constangy.com. This article is adapted from a recent post on the award-winning blog, “Employment and Labor Insider,” of which my colleague, Robin Shea, is proprietor.

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