Perspectives
Insights From Colleagues of UE
Accommodating Employees’ Religious Beliefs
By Lisa A. Brown
The importance of religion to many individuals, coupled with an increase in the
variety of religious denominations in America, has led to a dramatic increase in
the number of religious discrimination claims. From 2000 to 2010, the number of
workplace religious discrimination charges filed with the U.S. Equal Opportunity
Employment Commission (EEOC) almost doubled. Because of the growing
workforce diversity on many campuses, and because most educational institutions
encourage open discussions about politics and religion, school and college
administrators must be aware of their legal duties to accommodate employees’
religious beliefs and practices.
About the Authors
Lisa A. Brown, United
Educators’ Select Counsel
for south Texas, is a partner
at Thompson & Horton LLP.
Lisa regularly represents
schools and colleges on
employment issues.
Legal Background
Religious discrimination is prohibited by Title VII of the Civil Rights Act of 1964 and
various state laws. Title VII requires employers to accommodate their employees’ religious practices unless doing
so would constitute an undue hardship. At public institutions, religious discrimination also is prohibited by the
First Amendment, which, generally speaking, makes it unlawful to infringe upon an employee’s free exercise of
religion unless the employer can demonstrate a compelling state interest.
The term “religion” includes all aspects of religious observance and practice. According to EEOC guidelines, a
religious practice includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with
the strength of traditional religious views,” regardless of whether a religious group espouses the belief. As a
general rule, courts are hesitant to question an individual’s religious beliefs; institutions must tread lightly when
denying a requested accommodation on the ground that the employee’s beliefs are not really “religious” or
“sincerely held.”
Occasionally, an employee will request an accommodation based on religious beliefs or practices that are
unfamiliar to the supervisor. Courts have held that the employer has a right to ask the employee for additional
information about his or her religion. An employee who refuses to provide information may forfeit the
entitlement to an accommodation. In one education case, a faculty member refused to have his photo taken
for his identification badge, claiming unspecified moral and religious convictions. The court found that he
unreasonably had also refused to provide additional information regarding his religious objection. The court
agreed that an employee who seeks a privileged status because of religious belief cannot preclude inquiry to
determine whether he actually holds that belief.
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Institutions also must respect the rights of those employees who have no religion at all. For example, federal
courts have held that employers may not require employees to attend staff meetings or training meetings
that include prayer or other religious exercises.
Exception for Religious Educational Institutions
Title VII expressly permits religious educational institutions to give preferential treatment in employment to
individuals of a particular religion if the institution is, in whole or substantially in part, owned or controlled
by a particular religion or religious entity or if the institution’s curriculum is directed toward the propagation
of a particular religion. The law also recognizes a “ministerial exemption” with respect to individuals
employed by religious institutions in a clergy or ministerial capacity.
The Duty to Accommodate
An employee must inform the institution of the need for a religious accommodation. The institution then
has a duty to provide a reasonable accommodation that eliminates the conflict between the employee’s
religious practice and the institution’s employment policy. The accommodation must maintain the
employee’s status without any loss in pay, benefits, or other terms or conditions of employment. The
institution is not required to provide the employee with the “best” accommodation, but it must offer all
possible reasonable means of accommodation without creating undue hardship for the institution.
Requests for accommodation often involve work hours. Examples include:
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Voluntary shift substitutions. A number of religions prohibit work on their Sabbath and
religious holidays. According to the EEOC, institutions must help their employees secure a
voluntary substitute with substantially similar qualifications. Some means of accomplishing
this include publishing policies regarding accommodation and voluntary substitution;
providing a central file, bulletin board, or other means for matching voluntary substitutes
with positions for which substitutes are needed; and promoting an atmosphere that
supports such substitutions.
Flexible scheduling. Flexible scheduling may include a variety of arrival and departure
times, floating or optional holidays, work breaks at different times, the use of lunch time
in exchange for early departure, and staggered work hours. An institution may also permit
employees to make up time lost due to religious observance by working on a day the
employee would otherwise not be assigned to work.
Unpaid leave. Unpaid leave may be a reasonable accommodation. According to the U.S.
Supreme Court, the “provision of unpaid leave eliminates the conflict between employment
requirements and religious practices by allowing the individual to observe fully religious
holy days and requires him to give up compensation for a day that he in fact did not work.”
Lateral transfer and change of job assignments. When an employee cannot be
accommodated in his or her entire job or an assignment within the job, the institution may
consider the possibility of a transfer. For example, at the University of Medicine & Dentistry
of New Jersey, a labor and delivery nurse of the Pentecostal faith declined assignments that
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could result in emergency abortions. The hospital offered her a lateral transfer to a position
in the newborn intensive care unit. Although the new position would require retraining
and might have an impact on the nurse in other ways, the court held that the transfer was a
reasonable accommodation because the employee would not lose pay or benefits.
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Religious dress or grooming. Other common requests for accommodation include
employee requests to wear particular garments or to adhere to a particular grooming
standard. Institutions must accommodate these requests unless there is some business
necessity or safety concern. Courts tend to look at these cases closely because a person’s
dress or grooming ordinarily affects no one but that person. Even in those cases in which
the employer can establish a legitimate business need, the employer may lose if it fails to
consistently enforce its policy.
For example, a correctional officer who was a member of the Rastafarian religion and wore
his hair in modified dreadlocks was disciplined for failure to have a traditional haircut. The
employee argued that females were allowed to wear braids, and he noted two instances in
which the state had accommodated the requests of Jewish and Sikh employees to wear long
beards. While the trial court agreed that the employer’s cited reasons for the policy—public
safety, discipline, and esprit de corps—were legitimate, a federal appellate court sent the case
back for trial because of the evidence of inconsistent enforcement.
In contrast, in one recent case involving a job safety policy, the court rejected the claim of
a Muslim job applicant who sued an employment agency that had refused to refer her for
a position that involved working near large machines with fast-moving parts. The applicant
wore a head scarf for religious reasons, but the company in question prohibited all headwear
for safety reasons. The court held that the agency’s reasons for not referring the candidate
were legitimate and related to a safety policy that applied to all employees.
Undue Hardship
For an institution to assert undue hardship in its refusal to accommodate an employee’s request, it must
demonstrate that the accommodation would require more than a “de minimis,” or trifling, cost. That cost may
be economic or noneconomic. It is determined by comparing the identifiable cost of the accommodation to
the size and overall operating cost of the institution. An institution may also take into account the number of
people who will need a particular accommodation. As a general rule, the administrative costs for providing
an accommodation are considered de minimis. On the other hand, regular payment of premium wages to a
substitute employee is usually considered more than de minimis.
The issue of “undue hardship” arose in a case brought by two bus drivers against a Texas school district.
The drivers sought unpaid leave for eight consecutive days to attend an annual religious event. The district
offered the first five days but denied the rest because of a shortage of drivers. The employees argued
that the hardship was self-created because the district had refused to pay decent wages to attract and
retain more drivers. The court held that paying higher wages would be an undue hardship and that, while
supervisors and mechanics were qualified to serve as substitute drivers, it was an undue hardship to require
them to fill in because that would have diverted them from their regular duties.
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In addition, variance from a bona fide seniority system also constitutes an undue hardship. The duty
of reasonable accommodation does not require an institution to violate either a collective bargaining
agreement or seniority system by denying another employee a job or shift preference guaranteed by the
seniority system. For example, in one recent case, the employer utilized a rotating schedule that required
employees to work every sixth Saturday. An employee with the least seniority asked for every Saturday
off as a religious accommodation. Granting this request effectively would have given the employee a
fixed schedule and would have violated the collective bargaining agreement. The court also rejected the
employee’s request to use leave to avoid working on Saturdays. The court concluded that this request, too,
posed an undue hardship by substantially imposing on the employee’s co-workers and depriving them of
their rights under the seniority system.
Not all instances of “undue hardship” are economic. In one case involving an employee who held a customer
service position, the court rejected the employee’s claim that she had a right to display her tattoos and facial
piercings. The employer had required the employee to cover the piercings and tattoos while working with the
public. The court of appeals found that, regardless of the sincerity of the employee’s beliefs, the employee’s
request for a blanket exemption from the employer’s policy was not reasonable and would have imposed
an undue hardship upon the employer. Although the employer did not face an economic hardship, it had
a legitimate interest in presenting a workforce to its customers that was professional and neat. The court
concluded that it was “axiomatic” that, for better or worse, employees reflect upon their employers.
Religious Speech
Some employees may wish to speak about religion to other employees or wear religious jewelry as a form
of communication about their faith. The general rule of thumb at both public and private institutions is that,
if employees are permitted to meet in common areas to discuss nonreligious, nonwork matters, they may
have religious discussions there as well. Similarly, if employees are entitled to freely display nonreligious
items in their offices or workspaces, they generally must be permitted to display religious items.
Title VII, however, does not require that institutions permit employees to impose their religion on others or
to harass others with different beliefs. For example, a court rejected an employee’s argument that she had a
protected right to use the phrase “Have a Blessed Day” in her employer’s official business communications
with clients. The court noted that the employee’s use of the phrase was not actually required by her religion
and that she in fact did not use it all of the time. The court concluded that the use of the phrase was the
plaintiff’s personal preference, and personal preferences are not protected under Title VII. Similarly, the
institution may prohibit religious speech that harasses other employees and infringes upon their rights.
A particular area of concern for public institutions is religious speech by employees who teach or interact
with students. The First Amendment requires public institutions to avoid conduct that promotes or
endorses religion. Thus, courts have held that school officials have the authority to direct faculty and other
employees to refrain from speaking about their personal religious beliefs during instructional time or in
official communications. A professor at a public college informed his students that “I try to model my life
after Christ… You need to recognize as my students that this is my bias and it colors everything I say and
do.” After students complained, the professor’s supervisors directed him not to interject his religious beliefs
during his classes, the subject matter of which did not involve religion. The court held that the university’s
concern about the appearance of endorsement and its effect on students was legitimate and that the
restrictions were reasonable. The court noted that the restrictions did not prevent the professor from
expressing his views “on his own time.”
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Practical Tips for Avoiding Claims
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Develop a strong policy against religious harassment and discrimination. Ensure that
all anti-discrimination policies address religious discrimination and religious harassment.
Provide the same investigation procedures that are used when investigating sexual
harassment or racial harassment claims.
Provide training to employees. Through written policies and training programs, the
institution must create a culture in which employees respect co-workers’ religious
differences. Administrators, department heads, and other supervisors need specialized
training on the institution’s duty of reasonable accommodation. Training should provide
concrete examples of modifications that constitute a reasonable accommodation. In
communities where particular religions are common, training may include information
about the religion’s common practices or holidays. Finally, training should inform supervisors
that it is unlawful to inquire about religion during the pre-employment interview process.
Watch what you say. When discussing a requested accommodation with an employee,
supervisors must avoid expressing surprise or disdain for the tenets or requirements of the
employee’s religion. They also must avoid stray remarks such as offensive religious comments
to other managers or human resources in email or in person.
Apply standards consistently. An institution that claims a certain accommodation would
create an undue hardship is less likely to prevail if the requesting employee can show that,
in the past, the institution has failed to strictly enforce the rule or standard. Multicampus
institutions must attempt to ensure that requests for accommodation at different campuses
are treated in a similar fashion.
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