Religion
in the
Workplace?
T
2016 Issue 1 |
THE
SCORE
28
he issue of accommodation of religious beliefs has
been in the news a lot lately, particularly following
the U.S. Supreme Court’s decision allowing samesex marriages. Although the news has focused on the
refusal of some public employees to issue marriage licenses to
same-sex couples, the requirement for religious accommodation
is becoming an area of increasing difficulty for many employers.
Fortunately, most employers know that as a matter of
law, they are required to provide an accommodation for their
employees’ religious beliefs. Although not required to provide
an accommodation at all costs, if the necessary accommodation
does not pose more than a minimal burden on the employer
(i.e., not an undue hardship), it must be provided. For example,
if an employee is prohibited by her religion from working from
sun down Friday to sun down Saturday, and the employee can
be excused from working during those time periods, then it
must be provided.
Although employers are aware of the need to provide an
accommodation, there remains confusion as to when that obligation arises:
Law Protects All Religious Beliefs,
Not Just Traditional Beliefs
A common misperception is that the law only protects
traditional, organized religions such as Christianity, Judaism,
Islam, Hinduism and Buddhism; however, the law also covers
by Douglas H. Duerr
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. 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 federal (and most state) law.
Importantly, the law only provides protection (i.e., an
accommodation obligation) when the religious belief is
“sincerely held.” How do you determine whether a belief meets
this requirement? First, you should assume that when there is
a request for a religious accommodation, the belief is sincerely
held, even if it is not a belief that you are familiar or agree with.
If there is reason to question sincerity, then verification can be
requested. There is no specific form of corroboration that can be
required or permitted, but a good place to start is by having the
employee write out the belief and the basis for it. If independent verification is appropriate under the circumstances, then
that need not always be provided by a religious official, but by
a third party confirming the employee has expressed the belief
previously. It is important, however, not to require too much or
inappropriate evidence to “prove” the sincerity of the belief.
When can evidence be requested? Again, there is no
bright-line test or standard, but it may be appropriate when: