Praise the Lord and Pass the Buck: Religion Comes to Work

Sep 2008

(Livingston, NJ) Religion in the workplace often challenges businesses to find appropriate solutions to employees' requests. As religion increasingly collides with corporate policies and practices, companies are asking what is and isn't permissible behavior — for workers and for themselves.

"Obviously, you can't fire someone just because her faith differs from yours," says John Sarno, president of the Employers Association of New Jersey (EANJ).  "But what happens when you face situations that aren't so black and white-when the beliefs and practices of customers and co-workers come into play, not to mention the intricacies of discrimination law?"

Last year, the Equal Employment Opportunity Commission (EEOC) received nearly 3,000 charges of religious discrimination in the workplace — almost 50 percent more than a decade ago. And according to the New York-based Tanenbaum Center for Interreligious Understanding, 66 percent of employees report "evidence of religious bias at work."

There is a fair amount of hypersensitivity among employees says Sarno but recent court decisions have raised the stakes when employers do not take issues seriously.

For example, in July, the New Jersey Supreme Court held that anti-Semitic remarks could create a hostile workplace for Jewish employees.

Also in July, the EEOC released compliance guidelines on religious discrimination.  Sarno says that the   guidelines are “very helpful,” particularly on harassment issues and that they provide employers with “more or less up-to-date examples” based on unfamiliar, non-Western, or unusual religious beliefs.
 
Federal law requires employers to reasonable accommodate employees’ sincerely held religious beliefs. Employers must permit employees to engage in religious expression, unless the religious expression would impose an undue hardship on the employer.

Generally, an employer may not place more restrictions on religious expression than on other forms of expression that have a comparable effect on workplace efficiency. However, representatives of interest groups have been negotiating toward a compromise version of the proposed Workplace Religious Freedom Act (H.R. 1431), with a view toward improving prospects of passage in the next Congress.

The bill would amend Title VII of the 1964 Civil Rights Act to narrow the definition of undue hardship in evaluating an employer's obligation to accommodate religious beliefs, moving it toward the higher standard of accommodation required by the Americans with Disabilities Act.

Under current law, employers need only meet a very low standard of hardship, which tilts the accommodation issue in favor of the employer, Sarno said. Employees who meet the burden of showing a sincerely held religious belief in conflict with a workplace rule or policy, have little chance of gaining relief under the current legal standard.

In disputes over reasonable accommodation and undue hardship, “employers usually win,” noted Sarno.

In New Jersey, Governor Corzine signed a religious discrimination law earlier this year. In determining whether an undue hardship exists, an employer may consider loss of productivity, cost of transferring employees between facilities or hiring additional employees, the number of employees who will need the particular religious accommodation, and whether the accommodation would render the employee unable to perform the essential functions of his or her position.

Sarno believes that the implications of the state law may be far-reaching, as it requires the accommodation of any “sincerely held” religious practice or observance. The law does not allow the employer to second-guess the validity of the practice itself, nor does it define exactly what qualifies as a religious “practice” or “observance.”

Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also 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.

According to EEOC guidance, a belief is “religious” if it is “‘religious’ in the person’s own scheme of things.” An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.

Religious beliefs include theistic beliefs as well as non-theistic “moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held.  Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” 

Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.

“The law is very complex and there is a fair amount of subjectivity involved,” notes Sarno. But ““these issues can be resolved relatively easily when there is the will on both sides,” he insists.