Religious accommodation in the workplace: the devil is in the detail.

• Author: Fowler-Hermes, Jennifer
• Position: Labor and Employment Law

As a leader in technology, Circle 9 Corporation installed new time and attendance biometric hand scanners, which replaced traditional timesheets. Ali Ghieri, an Evangelical Christian, approached Circle 9's human resources department and asked to continue using paper timesheets, explaining that using the new scanners violates her religious beliefs. Ghieri believes the hand-scanning technology is related to the "mark of the beast" discussed in the Book of Revelation in the Bible. Circle 9's management thinks that Ghieri's beliefs are "a little kooky" and refuses her request; however, the company has allowed another employee who is missing fingers to continue using paper timesheets instead of the hand scanners. Has Circle 9 Corporation violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. [section]2000e, et seq, by failing to accommodate Ghieri? A scenario similar to this one is the subject of a lawsuit recently filed by the Equal Employment Opportunity Commission, EEOC v. CONSOL Energy, Inc. and Consolidation Coal Company, No. 1:13-cv-00215-FPS (N.D. W. Va. Sept. 23, 2013).

Religious accommodation scenarios like this one have garnered a great deal of attention in recent years, and religious discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) have almost doubled since 2000. (1) Navigating work religion issues is more challenging than ever. This article reviews the existing legal framework for evaluating requests for accommodation and provides examples of how the details of each case affect whether an accommodation is required. It also reviews two lawsuits filed by the EEOC and how that agency is pushing the limits of the established framework for determining when accommodation is required. (2)

Framework for Evaluating Requests for Religious Accommodation

Title VII prohibits religious discrimination in the workplace and requires employers to reasonably accommodate an employee when that employee's sincerely held religious beliefs, practices, or observance conflict with a work requirement, unless the accommodation would cause an undue hardship to the employer. (3) There are three main issues to consider when addressing requests for accommodations: 1) What is considered religion? 2) What constitutes a religious belief, practice, or observance entitled to Title VII protection? and 3) What is the employer's obligation to reasonably accommodate an employee's religious beliefs or practices?

* What is Considered Religion?--Title VII defines religion broadly to include "all aspects of religious observance and practice, as well as belief." (4) Religion encompasses both traditional organized religions, such as Judaism, Islam, or Christianity, and uncommon beliefs that are not part of a formal church. (5) Religion includes atheism, (6) as well as beliefs that are "only subscribed to by a small number of people, or that seem illogical or unreasonable to others." (7) The only requirement is a sincerely held religious belief. (8) A belief is religious if it occupies a place in the life of the employee parallel to that filled by the orthodox belief in God. (9) A religious belief usually concerns fundamental questions about life, afterlife, spirituality, the soul, purpose, and death, (10) but does not include social, political, or economic philosophies, or personal preferences. (11) To complicate the analysis, an employee's particular belief or practice can be religious even if the employee's religious group does not even recognize that individual's belief or practice. (12)

Title VII requires employers to accommodate only sincerely held religious beliefs, and the EEOC suggests that employers ordinarily assume that an employee's request for a religious accommodation is based on a sincerely held belief. (13) Nevertheless, an employer can inquire and request additional information if it has an objective basis for questioning either the religious nature or the sincerity of an employee's belief or practice. (14) Factors relevant to evaluating the sincerity of an employee's beliefs include: Whether the employee has behaved in a manner inconsistent with his or her proclaimed religious belief; whether the requested accommodation is a highly desirable benefit likely sought for secular reasons; whether the timing of the accommodation request is suspect; and/or any evidence that the accommodation is not sought for religious reasons. (15)

* What Constitutes a Religious Practice or Observance Entitled to Title VII Protection?--Religious observances or practices include attending religious services, praying, wearing religious garb or symbols, displaying religious objects, following certain dietary guidelines, or refraining from certain activities. (16) Whether a particular practice is "religious" will turn on the employee's motivation and is decided on a case-by-case basis. (17) For example, an employee might refrain from eating pork or might follow a vegan diet for religious reasons, while another employee might refrain from eating the same foods for health reasons or based on personal preference. (18) Likewise, an employee might object to an employer's flu vaccination requirement because he or she subscribes to veganism with a sincerity equating to that of traditional religious views, (19) while another employee objects to vaccination for health reasons. The underlying details of the accommodation request determines the outcome: The first employee's restrictions may require a reasonable accommodation while the latter employee's restrictions would not.

* What Is the Employer's Obligation to Reasonably Accommodate an Employee's Religious Beliefs, Practices, or Observance?--Title VII requires employers to reasonably accommodate an employee's sincerely held religious beliefs, practices, or observance, unless the accommodation would cause an undue hardship on the conduct of the employer's business. (20) Yet, Title VII does not define "reasonable accommodation" or "undue hardship." Hence, the employers' obligation to provide a reasonable accommodation is determined on a case-by-case basis. (21)

An employee must give the employer fair notice about the conflict between his or her religious beliefs and work duties, and his or her need for an accommodation. (22) No "magic language" is necessary; the only requirement is for the request to alert the employer to the fact that the request is motivated by a religious belief. (23) Employers should pay attention to the details of the communications because they could be deemed on notice of a religious conflict when they have learned about the need for an accommodation through sources other than the employee or applicant. (24)

Once the employer is aware that a religious accommodation might be necessary, the employer and the employee are expected to engage in communications similar to the "interactive process" used in disability accommodation cases, by which the employer gathers information to determine whether it can accommodate the request and the employee...