DiversityInc - November/December 2009

DiversityInc Why have religious-discrimination allegations increased? What’s driving this trend?

Latham Although the number of charges filed on the basis of religious discrimination under Title VII has nearly doubled in the past 10 years, these figures are not necessarily indicative of more religious discrimination. In fact, the percent of cases determined by the EEOC to have “reasonable cause” is about the same as it was 10 years ago, and it has actually declined several percentage points over the past three years. In my view, several key factors are driving increased charge filings: an increasingly diverse work force, a growing acceptance of open expression of religion at work and employees’ increasing awareness of their rights of religious expression.

DiversityInc Title VII states that employers must “reasonably accommodate” employees based on religion. What is a reasonable accommodation? Can you provide examples?

Latham Reasonable accommodation is the statutory language for the employer’s obligation to its employees whose religious beliefs or habits at work may conflict with job duties or other requirements. In addition to prohibiting discrimination against job applicants or employees on the basis of religion, Title VII requires employers to accommodate employees’ religious beliefs and practices, unless such reasonable accommodation would cause “undue hardship” for the business. Typical cases often concern whether and to what extent

an employer must allow an employ-
ee to take time off for religious
holidays or the Sabbath. Reasonable
accommodation might include:
; Swapping shifts with another
employee
; Providing flexible work schedules
or floating holidays
; Permitting employees to make up
lost time

Permitting prayer during working hours and allowing for certain dress and personal grooming habits are other forms of accommodation. More difficult issues are presented when an employee’s religious beliefs conflict with a job duty, such as a nurse whose faith prohibits participation in abortions. A reasonable accommodation in such case might be a transfer to a labor and delivery or neonatal unit that does not perform abortions.

DiversityInc Are employers required to grant all requests for religious accommodation?

Latham No. Under Title VII and

Prepare and distribute compliant policies Train managers Consult with counsel Educate employees on rights and obligations Work cooperatively with employees case by case in an earnest effort to determine what would be a reasonable accommodation that does not inflict an undue burden on the business ACCOMMODATION ADVICE

case law, that would in many
instances impose an undue hardship
on the business. Undue hardship has
been described by the U.S. Supreme
Court as a de minimis standard—
Latin for “so minor as to merit
disregard,” which means it is
relatively easy for employers to
justify denials of requests for
religious accommodation. So this
standard must be considered and be
applied on a case-by-case basis,
making it difficult to define undue
hardship. Factors to consider include:
; The type of workplace
; The nature of the employee’s
duties
; The identifiable cost of the
accommodation in relation to
the size and operating costs of
the employer
; The number of employees
who will need a particular
accommodation

For example, the routine administrative costs of rearranging schedules will ordinarily not be considered more than de minimis, but the regular payment of overtime wages or the cost of hiring additional employees for covering absent ones will generally cause an undue hardship. Note: Hardship includes not only increased expenses but burdens such as reduced efficiency, impaired workplace safety and infringement on other workers’ rights.