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Monday, September 21, 2015

No, You Can't Use "Religious Discrimination" To Discriminate (But You Can Use It To Refuse To Serve Alcohol)

With all the brouhaha over the clerk who went to jail for refusing to issue marriage licenses to gay couples, plus being in the midst of the Jewish holidays, I thought now would be a good time to talk about religious discrimination and when employers must accommodate religious beliefs.

Here's what EEOC says about when an employer does not have to accommodate an employee's religious beliefs:
An employer can refuse to provide a reasonable accommodation if it would pose an undue hardship. Undue hardship may be shown if the accommodation would impose “more than de minimis cost” on the operation of the employer’s business.
To establish undue hardship, the employer must demonstrate that the accommodation would require more than de minimis cost. Factors to be considered are “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.” Generally, the payment of administrative costs necessary for an accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes or infrequent or temporary payment of premium wages (e.g., overtime rates) while a more permanent accommodation is sought, will not constitute more than de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally cause an undue hardship to the employer. “[T]he Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”

Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.
So how does this play out when applied to some of the recent cases in the news? Here's how:

Elected official refusing to issue licenses: First of all, Title VII exempts elected officials from its application, so the elected clerk refusing to issue licenses to gay couples has no protection under this law. Even if she did, she is not only refusing to issue the licenses but wants to stop her entire staff from issuing them. If the state had to hire an entirely new set of employees to issue the licenses, that would obviously be more than a de minimis cost. Also, the requested accommodation, that she and her entire staff be allowed to refuse to issue the licenses, conflicts with the supreme law of the land, namely, the Constitution. Plus, the accommodation is a demand that the employer's customers be openly insulted and treated as second class citizens. It would clearly be an undue hardship to grant this accommodation. 

Flight attendant refusing to serve liquor: The same folks clamoring for the state to accommodate the recalcitrant clerk are unwilling to support accommodating the Muslim flight attendant who refuses to serve liquor. The flight attendant was being accommodated for two years without any problems by having her coworkers serve liquor when requested, but one coworker complained. Now she's suspended. Here's the problem with the employer now claiming a hardship: it accommodated her for two years. How can it claim that there's a sudden hardship? Time will tell, but I think she probably wins. It doesn't seem very hard to pass the drink order to the flight attendant at the other side of the cart and continue to serve soft drinks and coffee.

Employee who thinks a hand scan is the mark of the beast: As crazy as the belief sounds, if it is sincerely held then it needs to be accommodated, absent an undue hardship. When an employee objected to biometric hand scanning, claiming it was the "mark of the beast" in Revelations, he won his suit against the employer who refused to accommodate him, to the tune of $587K.

Bottom line is that you can't refuse to perform your entire job, but you can ask for accommodations regarding part of your job. You can't demand that your employer discriminate against others to accommodate your religion.

You can't be a bartender who refuses to serve liquor; can't get a job at a hamburger shop and refuse to serve meat; can't get a job at a daycare and the refuse to admit the children because you believe a woman should be at home instead of working; can't be a barber who refuses to shave men's beards. 

But if you need a religious holiday off or don't want to participate in a religious ceremony or activity at work, you're entitled to that.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.