Employment Law Commentary, November 2014

IS SHE REALLY ALLOWED TO WEAR THAT? RELIGIOUS ACCOMMODATION IN THE WORKPLACE

By Timothy F. Ryan

Title VII of the Civil Rights Act of 19641 prohibits discrimination based on religion and puts an affirmative obligation on an employer to accommodate employees' religious practices. Issues involving religion arise in many employment contexts, including decisions about hiring, discipline, promotions, and discharge. Often decisions about these issues are informed by the obligation to consider whether special attention needs to be paid to an employee's religious belief.

What Is "Religion"?

Title VII broadly defines "religion" to include "all aspects of religious observance and practice, as well as belief."2 The Supreme Court offers the guidance that a religious belief is "a given belief that is sincere and meaningful [and] occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for an exemption". United States v. Seeger, 380 U.S. 163, 165 (1965). The EEOC defines "religious practices" as "moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views" and also notes that "although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns ultimate ideas about life, purpose and death" 29 C.F.R. §1605.1.

Religious belief also includes "antipathy to religion," thereby extending the protections of Title VII to atheists. Reed v. Great Lakes Co., Inc., 330 F3d 931, 934 (7th Cir. 2003).

What Is Required of an Employer?

An employee must identify a religious belief or practice before an employer has a duty to accommodate the belief or practice on religious grounds. Once a religious practice or belief is identified, Title VII requires that an employer reasonably accommodate religious practices and observances. But the law does not require an employer to accommodate an employee whose sincerely held religious belief, practices, or observances conflict with a work requirement when providing such an accommodation would create an "undue hardship." Undue hardship under Title VII is defined as something "more than de minimis" cost or burden.3

With these principles in mind, we consider below the obligations of an employer when confronted by an employee's request to wear certain religious dress or follow certain grooming practices that relate to the employee's religious beliefs.

Reasonable Accommodation of Religious Dress and Grooming

Recently, there have been many reported cases of employees who challenge their employers' refusal to accommodate their wearing of religious dress (such as a hijab, the religious headgear of Muslim women) or tolerate certain grooming practices (such as wearing beards or other facial hair by Sikhs and Muslim men). These cases only occasionally are decided by the sincerity of the religious belief involved. Instead, many cases turn whether or not an employer is excused from the obligation to provide accommodation because to do so would result in an "undue hardship."4

Under Title VII, undue hardship exists if a religious accommodation would cause the employer to suffer cost that is "more than de minimis".5 The burden of an undue hardship can be measured in terms of money, production value, or impact on other employees. And while the burden required to establish...