The Tanenbaum Center for Inter-religious Understanding teamed with the Society for Human Resource Management (SHRM) for two separate thorough surveys of both employees of faith (1999) and HR professionals (2001). According to the HR survey, over 80% of the HR Managers responding identified Christianity as being present, either by obvious visual cues or by conversation, in their respective workplaces. That is probably not very surprising for most white Anglo-Saxon, Christian Americans. However, nearly 50% of the HR Managers responded that the Judaism was present in some form. Most surprising however is that nearly 30% of the HR Managers responded that Buddhism, Hinduism, and Islam in some form were all present in their respective workforces. It should be noted that the percentages do not add to 100% because respondents were allowed to answer more than one religion.
In those same surveys, several Human Resource-related red-flags were raised.
- Less than 1/3 of the organizations polled had a formal written policy regarding religion in their workplaces
- Christian holidays are the only official ones in 99% of the workplaces, and only 25% of those organizations permit holiday swapping (discussed later)
- While HR professionals did not report an increase in religious discrimination claims over the past five years, the Equal Employment Opportunity Commission (EEOC) saw an increase of over 24%.
As employers we must be aware of how these statistics affect our work places. Several questions arise regarding religion in the workplace. To start with, should religion be an acceptable discussion topic at work? Can, or should employers allow sanctioned religious activities at their workplaces? Does our work atmosphere promote an accepting, non-confrontational experience to people of minority religions? Do we accept and embrace diversity within our workplace? Do we provide reasonable accommodation to employees who may have differing religious needs? Finally, does our company have a written policy regarding religion in the workplace? To answer these questions, one must first have a general understanding of the legal environment pertaining to religion in the workplace.
LEGAL OVERVIEW
The First Amendment of the U.S. constitution and Title VII of the Civil Rights Act of 1964 are the primary federal laws that deal with the combination of religious freedom and employment law. The U.S Constitution has provided freedom of religion since the inception of the country. According to these Federal laws one is allowed to practice, exercise, and even discuss his or her religion in their workplace without the threat of retribution.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, national origin, or sex. Section 701(j) of the Act, deals with religious discrimination and requires that an employer make reasonable accommodation to the religious practices and observances of its employees, absent undue hardship to that employer. The inclusion of the section is the result of the 1972 amendments to the statue.
According to the U.S. Supreme Court, a religious belief is any sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by God in many religions. The Equal Employment Opportunity Commission (EEOC ) has taken this definition further, declaring that “religion” includes moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views.
“The fact that no religious group espouses such beliefs or the fact that the religious group employee professes to belong to may not accept such belief does not preclude the belief from constituting a religious belief for purposes of the law. Even atheism is considered a religious belief. However, cultural and political beliefs usually are not protected as religion.” (Bland, 1999)
In the matter of Trans World Airlines V. Hardison, 432 US 62 (1977), the Supreme court ruled that accommodations need not violate collectively bargained seniority rights, represent an unfair imposition on an employee’s coworkers, or otherwise alter prudent business judgment. In Brener V. Diagnostic Center Hospital: the Fifth Circuit emphasized the reasonable aspect of reasonable accommodation on both employer and employees to cooperate with each other. Although the statutory burden to accommodate rests with the employer, the employee has a correlative duty to make a good faith attempt to satisfy his (or her) needs through means offered by the employer.
According to Fair Employment Practices Guidelines, the courts prefer not to interpret religious beliefs, observances, or practices. They usually address these issues on the assumption that the religious belief is genuine. They take the employee’s word for it. This is true even if an employee who has been a faithful follower of one religion suddenly adopts a new one.
The EEOC has as its primary task the administrative enforcement of the Title VII. The EEOC has issued general guidelines requiring employers to respond to their workers’ religious practices with “reasonable accommodation” as long as it does not pose an “undue hardship” on the company. According to the EEOC:
- The employer has an obligation to reasonably accommodate the individual’s religious practice. A refusal to accommodate is justified only when an employer…can demonstrate that undue hardship would in fact result from each available alternative method of accommodation.
- When there is more than one means of accommodation, which would not cause undue hardship, the employer… must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.
In our state, the Minnesota Human Rights Act (MHRA) protects people from discrimination based on certain personal characteristics, which are also called protected classes. One of these characteristics is religion. According to their official site web-site, (.state.mn.us/rights_yours), the following constitute a violation of the Human Rights Act concerning religion and employment in Minnesota:
- Employers refuse to hire, discharge, or discriminate with respect to benefits or conditions of employment;
- Labor organizations deny membership, fail to represent members, and fail to refer for jobs, or otherwise treat members differently.
- Employment agencies reject job applications, fail or refuse to refer for employment, or comply with requests to screen or refer applicants on a discriminatory basis.
CURRENT ISSUES IN THE WORKPLACE
Accepting that religious diversity exists is the first step towards understanding the issues related to religious diversity in the workplace. What are the implications of religious diversity in our work places? What kinds of issues does it bring to an organization? With each religion being unique what does it translate into for the many organizations? By looking at recent religious discrimination claims and lawsuits there are a few major issues that seem to be in overwhelming majority. The following three issues account for most of these claims.
- Time conflict with religious beliefs
Many religions have strict rules or expectations regarding working on certain days. In many religions working from Friday sunset to Saturday sunset, or Saturday sunset to Sunday sunset is prohibited. Many other religions prohibit working on holidays, but these holidays might not fit with the traditional holidays of this country.
Within the previously mentioned religions, in average there are five major religious holidays in each month, April having the highest number (12) of holidays. (According to ProGroup, Inc., a religious calendar publisher based in Minneapolis, Minnesota). This creates a significant issue for many employers, especially large organizations who tend to have a diverse workforce. When traditional US religious holidays such as, Christmas, and Easter are not observed by a significant portion of the workforce and when their religious holidays do not fall on those traditional vacation days, it creates a dilemma for the organization. Attempting to accommodate all holidays will be unrealistic. When an organization fails to recognize these religious holiday variations, it can create employee absenteeism on those days that might impact day to day functions and open the organization to discrimination law suits.
- Conflict with religious requirements and work expectations
An employees dress or personal appearance might be in conflict with the company regulations or safety codes. Head coverings, robes, beards and religious jewelry are part of many religious traditions. Certain religious beliefs might prohibit an employee from performing a certain job function, for example a Muslim employee handling pork related products or a Hindu employee handling beef products, or expecting a vegetarian to handle meat products. While seemingly not a major issue to most people (i.e. those of Christian faith), this is a very sensitive issue for many religious employees.
- Interpersonal conflict between employees
Several interpersonal situations can arise between employees. Unsolicited verbal and visual religious cues may intimidate other employees. At the same time the employee giving these cues may feel it is within their personal free speech rights to espouse these views. Managerial employees’ involvements in religious activities in a workplace are another gray area. Employees who do not adhere to the same religion as their manager or superiors may be uncomfortable with such situations. They may tend to form an opinion that they are not in a favorable position with the manager in comparison to those coworkers who take part in the same religious activities. It is obvious that, opening up the workplace for religious activities might give room for religious discrimination claims.
SOLUTIONS AND HOW FAR DOES THE EMPLOYER HAVE TO GO?
The spirit of the law requires that an employer attempt to make reasonable accommodations for employee’s religious observances, practices and beliefs. At the same time employers need not provide certain accommodations if the employer can show that those accommodation would cause undue hardship to their organization. What constitutes both reasonable accommodation and undue hardship will vary with each situation. Given the complexity and sheer numbers of practiced religions it will be difficult to examine each potential specific solution. Further, the organization’s size, employee makeup, diversity and operating schedule may further complicate the issue. Nonetheless, outlined below are several common and generic case studies which describe how far an employer must legally accommodate. Each of these case studies also gives an example of when an employer may be justified in not fully accommodating an employee’s every desire. This section should not be confused as a way-out for the employer. It cannot be stated enough, the spirit of the law requires that the employer must attempt to reasonably accommodate the employee needs. Doing the contrary would not only be illegal and unethical, but would violate your organization’s diversity goals.
Work Schedule Accommodation
Accommodating religious observances does not have to stand in the way of running a successful business. An employer may not simply refuse to accommodate out-of-work time commitments from an employee’s religious beliefs. Several low-cost solutions, which do require managerial planning, exist, including:
- Substitute or swap shifts for employees who need time off for religious reasons
- Provide flexible work schedule (arrival & departure time, work breaks)
- Allow employees to exchange meal breaks for their religious reasons
- Provide floating holidays that the employees can avail off to follow their religious beliefs without disrupting schedules
- Voluntary exchange of work schedules with other employees.
- Allowing lateral transfers of employees among available positions and allowing change of job assignments.
Personal Appearance
The wearing of religious symbols or dress can be accommodated if it does not interfere with the standard corporate uniform or appearance. If employees are required to wear uniforms but an employee’s religion dictates wearing robes, then an accommodation could be made by designing a robe in the fabric of the uniform. Also personal appearance, such as permitting facial hair, is entitled to reasonable accommodation.
Safety is an important concern for employers. Therefore providing a reasonable accommodation is difficult when the employers have to follow certain federal safety regulations. If personal grooming or apparel restrictions are justified by legitimate evidence that employee safety or health is compromised, the employer need not accommodate the employee. (Bland, 1999)
Unsolicited Information and Proselytizing
Some employees may see the unsolicited information, visual cues (such as the wearing of certain type of jewelry or specific modes of dress), information on religious affiliation (such as carrying a bible or having it at their table) as an intrusion into their private life. If an employee’s manifestation of religious freedom causes a disturbance among the coworkers and the company work is affected the productivity of the company tends to go down. As such, the employer may be able to prove that this causes undue hardship upon the organization.
Employee speech or proselytizing also may be an issue. Some employees assert their right to discuss or pronounce their religious beliefs at work. Further, an employee may feel the need to convert co-workers to his/her own religion. These cases might generate some resentment among employees who do not subscribe to the employee’s views. If the employer can prove that these actions interfere with normal work, then they can be limited. The employer should document all instances where these situations occurred and should document the employer response.
Employer Costs and Undue Hardship
Accommodation should not add unreasonable costs in the form added inefficiency or higher wages. The employer may consider whether the accommodation could present a hardship for coworkers in terms of additional work. For example, if an employee is absent from work on a day when he was especially needed at work and his employer has to use supervisory personnel instead, the resulting inefficiency causes undue hardship to the employer. Therefore the employer is justified in not accommodating the employee’s beliefs. Also, if due to an employee’s religious practices they need to take time off from work, the employees who do not follow the same practices need to fill in for them and this might cause resentment among those employees, potentially causing hardship.
The employer does not have to grant religious accommodation if it violates seniority rights of co-workers, exceeds ordinary administrative costs, or deny the shift and job preference of some of the employees but not others. Again, all instances where undue hardship is claimed should be backed up with clear documentation.
Employer policy should stress that religious accommodation is indeed a two-way street, and that the employee has responsibility to inform the employer when they feel their needs are not being met. As an additional reference, the Fair Employment Practice Guidelines suggests the following general guidelines to organizations dealing with religious accommodation issue:
1 It is up to the employee to notify the employer that his or her belief conflicts with the employer’s employment requirements.
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The employer must discuss the need for any particular accommodation with the employee.
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It is not just up to the employer to come up with reasonable accommodations. The employee should also be making suggestions and trying to work out a compromise.
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Employers should not announce. “This is not what we are going to do take it or leave it.” The employer must look into options.
SUMMARY
Our workplaces have become more diverse. In addition to religion, diversity also relates to a wide spectrum of issues, ranging from age, gender, disability, and ethnicity. We can either; fail to accept or recognize the added diversity, accept diversity but fail to act upon it, or we can not only accept diversity, but encourage it as an added strength to our organizations.
Further, the modern society has arguably increased its religious/spiritual interest. At the same time this society spends an increasing amount of time at the workplace. In some accounts, most people spend most of their active day at work. It is unreasonable to expect people to leave their religious beliefs or spirituals beliefs when they walk into the office. Many people believe spirituality is an essential part of their self, and they adhere to religion as an outlet from the stress of work. Studies in these areas tend to show bias depending on the sponsor of these studies. Still, most studies indicate that workplace spirituality in a secular organization, properly implemented has many positive aspects, including morale and increased productivity.
However, many potential conflicts can arise between employees, and/or company policy, when an employee wishes to make a workplace and religious divergence. While one employee may claim a right to espouse his/her religious views, another employee may see that as an infringement upon their rights. Further, an employee may have various conflicts in trying to meet both employer and religious needs. The Federal Law protects the rights of these employees. An organization must attempt to accommodate those rights and needs. Federal Law also protects the employer by limiting accommodation that causes undue hardship. Unfortunately, there is no legal checklist of Do’s and Don’ts regarding religion in the workplace. Most issues can be successfully addressed, however, by an acceptance of diversity, early communication, and real employer and employee efforts to alleviate problems.
BIBLIOGRAPHY
Anti-Defamation League, “Religious Accommodation in the Workplace”, http:/www.adl.org/issue_religious_freedom/religious_ac/accommodation_qa.asp.
Berlin-Weathersby, Rachelle, “Accommodating Religious Beliefs in the Workplace”, The National Science Foundation, www.nsf.gov/od/oeo/accomreligious.html, March 25, 2002
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Fair Employment Practices Guidelines, p5(2), February 1, 2002.
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