Religion in the Workplace: Walking on Eggshells

2017 Utah Human Resources State Council Crossroads Conference
Christina M. Jepson
801.536.6820
cjepson@parsonsbehle.com
www.parsonsbehle.com
SEPTEMBER 19 – 20, 2017 | UTAH VALLEY CONVENTION CENTER | PROVO, UTAH
RELIGION IN THE WORKPLACE:
WALKING ON EGGSHELLS

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To download a PDF version of Parsons Behle &
Latimer’s 2017 UHRSC Crossroads Conference
Handbook, please visit
http://parsonsbehle.com/employment-handbook

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U.S. Constitution – First Amendment
Government cannot interfere with or establish religion
Utah Constitution
Government cannot interfere with or establish religion
Federal Title VII
Employers cannot discriminate based on religion
Employers must accommodate religion unless undue hardship
Utah Antidiscrimination Act
Employers cannot discriminate based on religion
Employees have free speech rights including regarding religion
(May 2015)
LAWS IMPACTING RELIGION

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“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of such speech.”
 Protects individuals against restrictions imposed by the
government, not by private entities
 Government employees’ religious expression is protected
FIRST AMENDMENT

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Article I, Section 4
“The rights of conscience shall never be infringed. The State shall make no law
respecting an establishment of religion or prohibiting the free exercise thereof”
“There shall be no union of Church and State, nor shall any church dominate
the State or interfere with its functions.”
 Protects state and other government employees’ freedom of religious speech
 Not private entities
UTAH CONSTITUTION

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 Prohibits employment discrimination based on race, color,
religion, sex and national origin
 In 1972, Congress added to Title VII an express obligation of
employers to “reasonably accommodate” the religious practices of
their employees if they can do so without “undue hardship”
 Exceptions for religious organizations
Title VII of the Civil Rights Act of 1964

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Utah Code Ann. Section 34A-5-106
 An employer may not refuse to hire, refuse to promote, discharge,
demote or terminate a person or retaliate against, harass or
discriminate in compensation or terms, privileges and conditions
of employment because of religion

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Utah Code Ann. Section 34A-5-112
Effective 5/12/2015
Sexual orientation and gender identity compromise
“(1) An employee may express the employee’s religious or moral beliefs and
commitments in the workplace in a reasonable, non-disruptive, and non-
harassing way on equal terms with similar types of expression of beliefs or
commitments allowed by the employer in the workplace, unless the
expression is in direct conflict with the essentials business related interests of
the employer.”

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Utah Code Ann. 34A-5-112--Effective 5/12/2015
“(2) An employer may not discharge, demote, terminate or refuse to hire any
person, or retaliate against, harass, or discriminate in matters of compensation
or in terms, privileges, and conditions of employment against any person
otherwise qualified, for lawful expression or expressive activity outside of
the workplace regarding the person’s religious, political, or personal
convictions, including convictions about marriage, family, or sexuality, unless
the expression or expressive activity is in direct conflict with the essential
business-related interests of the employer.”

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 Treating applicants or employees differently based on their religious
beliefs or practices in any aspect of employment, including recruitment,
hiring, assignments, discipline, promotion, and benefits (disparate treatment)
 Harassing employees based on religion
 Retaliating against an employee for exercising protected rights regarding
religion
 Denying a reasonable request for accommodation if it will not impose
more than a de minimis cost or burden on business operations (not an
undue hardship on the employer)
What does Title VII Prohibit?

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 Section 701 of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e)
provides in relevant part:
 (j) “The term ‘religion’ includes all aspects of religious observance and
practice, as well as belief …”
 Interpreted to protect against requirements of religious conformity and
protects those who refuse to hold, as well as those who hold, specific
religious beliefs
What Is “Religion”?

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 Not just traditional organized religion (Christianity, Judaism, Islam, Hinduism,
Buddhism)
 Can be new, uncommon, not part of formal church or sect, can seem illogical
or unreasonable to others
 Theistic beliefs (belief in God, afterlife) and non-theistic beliefs (moral or
ethical beliefs as to right and wrong) which are sincerely held with the
strength of traditional religious views (Taoism, classic Buddhism,
Confucianism)
 Only inquiry—Whether or not the belief occupies the same place in the life of
its holder that orthodox beliefs occupy in the lives of believing majorities.
Whether it functions as religion in the life of the individual?

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 Social, political, or economic philosophies, mere personal
preferences
 Courts usually resolve doubts as to particular beliefs in favor of
finding that they are religious
What Is Not Religion?

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 Three part test
– Does the alleged religion address “fundamental and ultimate questions” having to do with
deep and imponderable matters?
– Is the alleged religious belief “comprehensive” in character as opposed to a narrow or
isolated teaching?
– Does the alleged religion have “any formal, external or surface signs” analogous to
conventional religions, such as formal services, ceremonial functions, the existence of a
clergy, etc.?
 Last part is suggestive, not required, because a person may have a religious
belief unrelated to any organized church
 An individual’s beliefs need not accord with the official belief of the religious
organization he or she belongs to

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 Examples
– Church of creativity is religion. White supremacy as a central tenet. Peterson
v. Wilmur Communs, Inc. (205 F.Supp.2nd 1014 (E.D. Wis. 2002)
– Church of Wicca is a religion. Van Koten v. Family Health Management, 955
F. Supp. 89 (N.D. Ill 1997) (Halloween holy day, astrology, psychic abilities,
reincarnation)
– Veganism may be religion. Cenzira v. Cincinnati Children’s Hosp., 2012 U.S.
Lexis 182139 (S.D. Ohio 2012)
– Veganism not religion. (E.D. Cal. June 26 2006). Did not address fundamental
or ultimate questions.
– Gay Christianity. Bank president became president of local chapter of Integrity,
an organization of gay Christians. Remanded to determine if beliefs were
genuinely religious and required him to be publicly active. (6th Cir. 1986)

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 Factors
– Is employee’s behavior inconsistent with the professed belief?
– Is the accommodation a particularly desirable benefit that is likely to be
sought for secular reasons?
– Does the timing of the request render it suspect (e.g. it follows an earlier
request by the employee for the same benefit for secular reasons)?
– Does the employer otherwise have reason to believe the accommodation
is not sought for religious reasons?
What Is a Sincerely Held Religious Belief?

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 Generally, Title VII requires an employer, once on notice that a
religious accommodation is needed, to reasonably accommodate
an employee whose sincerely held religious belief, practice, or
observance conflicts with a work requirement, unless doing so
would pose an undue hardship
Reasonable Accommodation

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 An applicant or employee who seeks religious accommodation
usually must make the employer aware both of the need for
accommodation and that it is being requested due to a conflict
between religion and work
 No magic words required to request accommodation
What Triggers the Need to Provide
Religious Accommodation?

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 Employer-employee cooperation and flexibility are key to the
search for a reasonable accommodation.
 If the accommodation solution is not immediately apparent, the
employer should discuss the request with the employee to
determine what accommodations might be effective.
 If the employee’s proposed accommodation would pose an undue
hardship, the employer should explore alternative
accommodations.
Reasonable Accommodation

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 Scheduling changes and shift swaps for Sabbath Days and Holy
Days
 Changing job tasks or lateral transfer
 Making an exception to dress and grooming rules
 Religious speech at work
 Accommodating prayer during breaks
Examples of Religious Accommodation

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 Skirt instead of pants
 Head scarf for nurse who was “old Catholic”
 Beard for employee who had idiosyncratic mixture of Christianity and Judaism
beliefs
 Greeting customers in factory cafeteria with “praise the Lord” and “God bless you”
 Employee refused to sign Certificate of Understanding attached to diversity policy
which required him to “fully recognize, respect and value” co-worker’s differences
 No work on Sunday. No attempt to accommodate. Two other employees would be
willing to substitute.
 No work on Sunday. No effort to accommodate.
 Day off to attend Yom Kippur services
Accommodations Required by Courts

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 Persistent and blatant proselytizing at work can be prohibited
 Anti-abortion button with picture of fetus was disruptive to workplace
 Obstetrics nurse refused to take part in medical procedure that would terminate
pregnancy. Refused transfer.
 Employee wanted to sign letters to customers with “have a blessed day”
 Dental hygienist who insisted on telling patients about her religious conversion
 Employee who would not work at specific times during the week. Conflicted with
labor agreement.
 Employee posted at his work station biblical passage denouncing homosexuality in
response to diversity posters
No Accommodation

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 Means that an accommodation poses a “more than de minimis”
cost or burden on the operation of the employer’s business.
• Note: this is a lower standard for the employer than under the ADA
which defines undue hardship as “significant difficulty or expense”
Undue Hardship

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 Costs not only include direct monetary costs, but also the burden
on the conduct of the employer’s business
 Employer has to prove how much cost or disruption a proposed
accommodation would involve
 Employer cannot rely on potential or hypothetical hardship
Undue Hardship

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 Type of workplace
 Nature of the employee’s duties
 The identifiable cost of the accommodation in relation to the size
and operating costs of the employer
 Number of employees who will in fact need a particular
accommodation
Undue Burden - Factors

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Practical Application: EEOC v. Abercrombie

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Abercrombie “Look Policy”
 Abercrombie calls its sales-floor employees “Models”
 Employees must dress in clothing that is consistent with the kinds
of clothing that Abercrombie sells in its store
 Abercrombie contends that its Look Policy is critical to the health
and vitality of its “preppy” and casual” brand
Facts of the Abercrombie Case

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 To Abercrombie, a “Model” who violates the Look Policy by
wearing inconsistent clothing “inaccurately represents the brand,
causes consumer confusion, fails to perform an essential function
of the position, and ultimately damages the brand.”

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 No black clothing
 Natural looking make-up and no fingernail polish
 Slender figure
 Tight denim
 Long hair for women
 No “caps”

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Abercrombie Job Interview Process
 Managers assess applicants on appearance and style during the
interview
 Managers supposed to inform job applicant of the “Look Policy”
 Store managers are not to assume facts about prospective
employees in job interview and not to ask applicants about
religion

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Abercrombie Job Interview Process
 If question about application of Look Policy comes up during
interview, store manager is instructed to contact human resources
department or direct supervisor
 HR managers may grant accommodations if doing so would not
harm the brand

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Samantha Elauf
 Mid-2008 applied for a Model position at the Abercrombie Kids
store in Tulsa, Oklahoma
 17 years old when applied
 Ms. Elauf testified that she was a practicing Muslim
 She testified that she had worn a hijab (head scarf) since she was
13 years old and that she wore it for religious reasons

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 Ms. Elauf interviewed with assistant manager for the
Model position
 Ms. Elauf wore a black headscarf (hijab) to the interview
 She also wore an Abercrombie-like T-shirt and jeans

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 Assistant Manager did not ask Ms. Elauf if she was a Muslim during the
interview
 Assistant Manager did not know Ms. Elauf’s religion, but assumed that she
was Muslim and figured that she wore her headscarf for religious
reasons
 Ms. Elauf never stated that she was Muslim and the topic of the headscarf
never came up
 Assistant Manager never mentioned the Look Policy by name, but did
describe some of the dress requirements for Abercrombie employees

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 Abercrombie’s Interview Guide
– Assess on
• “Appearance & sense of style”
• “Outgoing and promotes diversity”
• “Sophistication and aspiration”
– Three-point scale
• If score in “appearance” of less than 2, or total combined score of 5 or
less, not recommended for hire

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 Assistant Manager initially assessed Ms. Elauf 2 points in each
category (total of 6 points), which amounts to a recommendation
that she be hired
 Then spoke with District Manager because unsure if employee
could wear a headscarf and if it could be black

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 District Manager said that Elauf should not be hired because she
wore a headscarf – a clothing item that was inconsistent with the
“Look Policy”
 Per District Manager, score on “appearance” changed from 2 to 1,
thereby ensuring that Ms. Elauf would not be recommended for
hire
 Original Interview sheet thrown away
 Elauf was not hired by Abercrombie store

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 EEOC filed lawsuit against Abercrombie in 2009
 EEOC alleged violations of Title VII
 EEOC alleged Abercrombie “refused to hire Ms. Elauf because
she wears a hijab” and “failed to accommodate her religious
beliefs by making an exception to the Look Policy”
Abercrombie Lawsuit

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(1) Initial showing that Ms. Elauf had a sincere religious belief – i.e.
wearing the headscarf
(2) Abercrombie had enough information to make it aware (be on
notice) that there was a conflict between Ms. Elauf’s religious
practice or belief and a requirement for applying for or performing
the job
(3) Initial showing that Ms. Elauf did not get the job because of her
religious headscarf
EEOC’s Arguments

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 Elauf failed to inform Abercrombie of conflict between the Look
Policy and her religious practices—no trigger to accommodate
 Proposed accommodation – allowing Elauf to wear the headscarf
- imposed an undue hardship on the company
 Challenged whether Elauf had a bona fide, sincerely held religious
belief
Abercrombie’s Arguments

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 Abercrombie claimed that it did not discriminate because Elauf
was subject to a “neutral” dress code that applied to all applicants
who would be in public view.
 Abercrombie argued the company would have refused to hire any
applicant who did not comply with the dress code, whether they
had on a “headscarf,” “baseball cap,” “helmet,” or any other
headgear.
Abercrombie’s Arguments

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 Jury Trial: $20,000 compensatory damages to EEOC; injunctive
relief denied
 On appeal the 10th Circuit ruled in favor of Abercrombie finding
that Ms. Elauf never informed Abercrombie before that her
practice of wearing a hijab was based upon her religious beliefs
and that she needed an accommodation
 Appealed to the US Supreme Court
Abercrombie Lawsuit

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Straightforward rule: “An employer may not make an applicant’s
religious practice, confirmed or otherwise, a factor in employment
decisions.”
 An employer can violate Title VII even when its motive is based
on an unsubstantiated suspicion that an applicant needs a
religious accommodation
SCOTUS

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Supreme Court held that even though the Look Policy applied to all
employees, regardless of religion, Title VII gives religious practices
“favored treatment” and “requires otherwise-neutral policies to give
way to the need for an accommodation.”
 However, Court did not address whether Abercrombie’s Look
Policy violates Title VII, or whether accommodating Elauf would
have constituted an undue hardship
SCOTUS

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 If employer has concerns about a particular policy conflicting with
an applicant’s religion,
– Practical approach: Without referencing religion, the employer should
inform the applicant of the policy and ask if there is any reason that he or
she may not be able to comply.
• If applicant doesn’t indicate there is a conflict, then should be no need to discuss
religion at all
• If applicant confirms he or she may need an accommodation, then interactive
dialogue
Let’s Get Practical

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 If possible, it helps if employer has engaged in interactive process
and tried to reasonably accommodate
– Generally, court’s tend to view claims of undue hardship with more favor
when the employer has already attempted to accommodate the employee

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 An employer can still have dress codes and appearance
standards that are based on legitimate business reasons
– But, absent undue hardship, such policies must give way to the need for
religious accommodations

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 An employer’s reliance on the broad rubric of “image” or
marketing strategy to deny a requested religious accommodation
may amount to relying on customer preference in violation of Title
VII, or otherwise be insufficient to demonstrate that making an
exception would cause an undue hardship on the operation of the
business.

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 Managers and interviewers should be well trained
– On duty to accommodate religious practices
– That religion and accommodation should be nonfactors in employment
decisions
– How to handle situations where an employee or applicant requests an
accommodation for religious practices (or where there appears to be a
conflict between religious practices and a workplace rule or policy)

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 Educate employees on various religious traditions and holidays to
increase understanding
 Inform employees on how to make a request for accommodation
 Consult a multi-faith calendar before scheduling company-wide
events
 Use floating holidays

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To download a PDF version of Parsons Behle &
Latimer’s 2017 UHRSC Crossroads Conference
Handbook, please visit
http://parsonsbehle.com/employment-handbook

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 Christina Jepson
801-536-6820
cjepson@parsonsbehle.com
Thank You

Religion in the Workplace: Walking on Eggshells

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Religion in the Workplace: Walking on Eggshells