Dear Littler: Must We Accommodate An Employee's Religious Views In Every Instance?

• Published date: 31 August 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Littler Mendelson
• Author: Ms Alyesha Dotson

Dear Littler:

I'm an HR representative at an advertising agency based in New York City. We have a question about a religiously vocal employee. Recently she has made her opinions on homosexuality known to her entire department, emailing bible passages and lecturing her coworkers about what she calls "sinful" activity. Employees have complained. She says her religion obligates her to speak out. Last week she walked out of our annual anti-discrimination and harassment training during the module on sexual orientation and gender identity. We previously exempted her from the company's mandatory COVID-19 vaccine policy based on her sincerely held religious beliefs. Now she claims the exemption extends to this training and her religious obligation to "spread God's word." Do we really need to accommodate her on this point? Where is the line?

'Big Questions in the Big Apple

Dear Big Apple:

If only such lines were clearly drawn! As you have discovered, an employee's expression of their religious beliefs can negatively affect the rights of others in the workplace. So, let's discuss the delicate balancing act you face.

That you allowed an employee to refuse the COVID-19 vaccine based on her religious objections to it does not mean every religious objection must be accommodated. Each request must be evaluated on a case-by-case basis.

As you likely learned from the interactive process regarding her vaccine objection, under the religious discrimination provisions of Title VII of the Civil Rights Act, once an employer receives notice that an employee's sincerely held religious belief, practice, or observance prevents them from engaging in some term or condition of work, the employer must provide a reasonable accommodation unless doing so would pose an undue hardship.

The standard for identifying an undue hardship under Title VII is that it involves "more than a de minimis cost" to the employer. This is a lighter burden for the employer to meet than the undue hardship standard under the Americans with Disabilities Act (ADA), which is "significant difficulty or expense." Some states, however, have their own EEO laws that apply the ADA's more rigorous standard to religious accommodation.

Generally, the factors for determining undue hardship include, but are not limited to, the type of workplace at issue, the nature of the employee's duties, the identifiable cost of accommodation in relation to the size and operating costs of the employer, and the number of employees who...