AN EMPLOYER’S DUTY TO ACCOMMODATE NOT SO-COMMON RELIGIOUS PRACTICES

Q.  An employee has requested that the company give her an accommodation due to a religious practice I have never heard of. Do we have to comply with this request?

A.  Title VII of the Civil Rights Act of 1964 protects employees and applicants against religious discrimination and requires that an employer accommodate an individual’s religious practices unless doing so would create an undue hardship on the employer. Typically, employers are asked to accommodate more mainstream religions by way of scheduling accommodations or dress. However, lesser known religious practices also must be accommodated if the employee can establish a sincerely-held belief in the religious practice and that the accommodation would not impose an undue hardship on the company.

Recently, the United States District Court for Western District of Pennsylvania, as well as the Court of Appeals for the Fourth Circuit, have addressed accommodating the religious practice known as the “mark of the devil” or the “mark of the beast.” In both instances, the Courts held that the employee’s allegations were sufficient to establish a sincerely- held belief in the religious practice.

In Kaite v. Altoona Student Transp., Inc., the employee worked as a school bus driver and refused to have fingerprints taken because she believed that fingerprinting was the “mark of the devil” and if she submitted to it she would not get into heaven.  The employee asked for an accommodation in the form of a different type of background check that did not include fingerprinting.  The employer refused and terminated the employee’s employment for failing to comply with the State’s background check law.

The United States District Court for the Western District of Pennsylvania rejected the employer’s attempt to dismiss the case, holding that, at least at the motion to dismiss stage, the employee had sufficiently alleged a prima facie case of religious discrimination.

To establish a prima face case, the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.  Once the employee establishes a prima facie case, the employer then has the burden to prove either that it reasonably accommodated the plaintiff or that it was unable to do so without “undue hardship.”  Here, the employee stated that (i) she had a sincere religious belief that being fingerprinted constituted the “mark of the devil” and would prevent her from going to heaven; (ii) this belief conflicted with her job requirement that she undergo a background check; (iii) the employer was aware of her sincerely-held religious belief; and (iv) the employee subsequently was terminated for failing to comply with the fingerprinting requirement. This was enough to overcome a motion to dismiss.

Similarly, in EEOC v. Consol Energy, Inc., the employer implemented a biometric hand-scanner system for the purpose of requiring employees to check in and out of work.  The employee refused to use the a scanner because of his religious belief that the use of the scanner was the “mark of the beast.”  The employer refused to accommodate the employee’s religious belief, although the employer accommodated others who could not use the hand scanner for non-religious purposes.  The EEOC brought suit on the employee’s behalf, which went to trial.  The jury returned a verdict for the employee totaling $586,860.00 ($150,000 in compensatory damages and $436,860.74 in front and back pay and lost benefits).  The Fourth Circuit Court of Appeals affirmed the District Court’s ruling denying the employer’s motion for a new trial and motion for judgment.

Both of the cases illustrate an employer’s need to be tolerant in accommodating all religious practices, not only those that are considered more mainstream. Employers should remember that demonstrating a sincerely-held belief is typically a “low bar,” and most employees likely will be able to establish this element of their claim.

Moreover, these cases serve as a reminder that, when making determinations regarding accommodating religious practices, the company should:

  • Review whether it has made exceptions for non-religious reasons; and
  • Consider the actual hardship to the employer in accommodating the employee’s request.

Kali T. Wellington-James

Creepy Clowns and the Workplace

Q.  My office likes to celebrate Halloween. With all the talk about “creepy clowns,” should I be worried that our celebration will get out of hand?

A.     Creepy clowns are making national headlines as clown sightings spread throughout the country and on social media. Whether the clown prank turns more sinister remains to be seen. In the meantime, however, ‘tis the season of goblins and ghouls, and now is a good time to remind employees of some do’s and don’ts to maintain professional decorum while celebrating the Halloween holiday:

  1. Update dress codes to provide costume guidelines.  Employers should shudder at the thought of skimpy costumes, plastic weapons or costumes depicting the religion or national origin of others.  To the extent that you allow employees to wear costumes at all, remind them that costumes should be appropriate for the workplace.  Keep in mind that the Company’s equal employment opportunity and sexual harassment policies apply at all times, even (especially!) during holiday events.
  2. Provide guidelines for office decorations.  The same concerns regarding costumes apply to office decorations.  While it may be fun to hang spiders and put out pumpkins, make sure employees refrain from decorating the office in a manner that would offend a co-worker’s religion, national origin, or other protected category.
  3. Allow employees to opt out if they want to. Some employees may not celebrate Halloween for religious reasons.  Forcing them to join the group could turn the fun into a lawsuit.
  4. Likewise, if an employee asks for time off to celebrate the religious aspect of All Hallow’s Eve, keep in mind the company’s obligation to accommodation a sincerely held religious belief unless to do so would cause an undue hardship.
  5. If alcohol is going to be served at a Halloween party, make sure to serve food too. Limit the number of hours that the bar is open, or provide drink tickets so that employees do not get too carried away. If an employee appears to be intoxicated, make sure they have a way to get home safely.

Finally, update your security procedures during the holiday season.  If an unknown individual does try to enter your workplace in a creepy clown costume or other inappropriate attire, err on the safe side and alert the authorities.

Tolerating Tattoos in the Workplace

Q.  We have several employees with tattoos on their necks and forearms. Can we require them to cover up?

A. Many employers have in place employee dress codes, in an effort to maintain a certain brand image, comply with health standards, and foster professionalism. As tattoos, body piercings and other forms of body art are trending in today’s culture, some employers have struggled with whether such displays are in keeping with the company’s image.  To what extent can an employer place rules on an employee’s appearance at work without violating anti-discrimination laws?

Generally speaking, employers are free to require employees to dress in a certain way. So, for example, an employer may require that an employee wear a certain uniform, cover up a tattoo or remove a nose ring.  However, employers are required to reasonably accommodate an employee’s sincerely-held religious belief, including an employee’s dress or grooming practices that are for religious purposes, unless to do so would be an undue hardship on the employer’s business operations.

The EEOC has issued guidance stating that a religious accommodation may cause an undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. This is an easier standard for employers to meet than the “undue hardship” analysis under the Americans With Disabilities Act.

Thus, for example, it may not be a Title VII violation for an employer to require an employee of the Sikh faith to shave his beard if he (1) works with hazardous chemicals that require him to wear a respirator; (2) the beard prevents the required face seal to protect him from chemical exposure; and (3) there is no alternative device or method of doing the work that would not require him to shave his beard.

On the other hand, it would be a Title VII violation for an employer to prohibit an employee of the Muslim faith to wear her religious head covering where wearing the religious head covering does not pose an undue hardship, even if it results in complaints from other employees or customers who are not used to seeing such head coverings in the workplace.

As for tattoos and piercings, employees have no legal right to display body art, unless it is required for a sincerely held religious belief. Thus, employers may prohibit tattoos or may require employees to cover them up.  Employers also are free to create a tattoo policy that prohibits sexist and racist images, and images that promote violence, so long as the policy is applied evenhandedly throughout employees of all protected categories.

-Tracey E. Diamond & LaVelle S. King