Employers must accommodate religion, but only if they
know there is a religious need for accommodation
Today's post is by one of the firm's Peggy Browning Fellows, Mary Kate Dugan.
Most Americans understand that the First Amendment protects one’s right to practice religion from governmental interference. However, many would be surprised to learn that they also are entitled to certain religious rights at work, even if they work for a private company. Under Title VII of the Civil Rights Act, the federal government forbids employers from discriminating on the basis of religion and imposes the duty that employers reasonably accommodate an employee’s religion.
Under Title VII, an employee’s right to religion takes several forms. An employer cannot consider a job applicant’s religion as a factor in its decision to hire an otherwise qualified job applicant. Additionally, an employer cannot factor in an employee’s religion in a decision about whether to promote, determine compensation, discipline, or fire an employee. Importantly, Title VII defines religion to include not only religious belief, but observances and practices. Therefore, employers have a duty to
reasonably accommodate the religious observances and practices of their employees. If an employer cannot reasonably accommodate an employee’s religion without incurring undue hardship, or an
undue burden to itself, the employer has a defense against a charge of discrimination.
All of these issues came to bear in the 2015 Supreme Court case, EEOC v. Abercrombie & Fitch Stores, Inc., 135 S.Ct. 2028. In that case, a Mulism woman applied and interviewed to work at a nationally branded clothing store. Concerned that the job applicant’s headscarf would violate the companies’ workwear
look policy, and that she would not be willing to remove it due to her religion, the manager decided not to hire the applicant. The Supreme Court ruled that religious discrimination did not require the manager to have actual knowledge of the applicant’s need for an accommodation: instead,
an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.
Although actual knowledge is not required under Abercrombie, a plaintiff still must prove discriminatory motive. A subsequent decision by the Fifth Circuit in Nobach v. Woodland Village Nursing Center, 799 F. 3d 374 (5th Cir. 2015), provides caution on this point. In Nobach, a nursing home activities refused to pray the rosary with a patient. When the patient complained to a manager, the manager fired the aide. During her firing, the aide told the manager that she had refused to do the rosary because it was against her religion. The manager replied,
I don’t care if it is against your religion or not. If you don’t do it, it’s insubordination.
While the aide won her jury trial, she lost on appeal. The Fifth Circuit stated that it
simply cannot find evidence that, before her discharge, [the employee] ever advised anyone involved in her discharge that praying the Rosary was against her religion. In other words, the employer could not have been motivated by the employee’s religion if it was never aware of her religion. Therefore, there was no religious discrimination.
The Abercrombie case highlights a nuance in Title VII religious discrimination law: an employer need not have actual knowledge of an employee’s religion for an employee to prove a discriminatory motive. But Nobach foregrounds the main rule: to prove discrimination, an employee must prove a discriminatory motive, and that means showing that the employer at least suspected that a conflict between the employment duties and an employee’s religion. While almost all employee’s retain religious rights in the workplace, those rights can be tricky to assert. If you are in a position where your religion has put you at odds with your workplace policies or your job responsibilities, consider consulting with a lawyer before you go asserting your rights.
Pursuant to MRPC 7.4(a)(2)
FREE BACKGROUND INFORMATION AVAILABLE UPON REQUEST
This site is for general information only, and creates no attorney-client relationship. Sending inquiries to the firm does not create an attorney-client relationship.
To get legal advice about an employment law, labor law, federal employee law, whistleblower protection, labor unions, worker cooperatives, immigration, discrimination, harassment, wrongful termination, severance, or any related question, you must first have a conflicts check by the firm. We represent exclusively workers, worker cooperatives and unions, but we still must check for potential conflicts of interest, for example, between a supervisor and employee.
First provide the firm with your name, and the name of the person you are making claims against - and no other information. This allows the firm to check for such conflicts of interest. Until you receive confirmation from an attorney that there is NO CONFLICT, none of the information you provide will be considered confidential. Do NOT provide any confidential information before we have asked you to do so.
Once we have confirmed there is no conflict, you may discuss your matter with the attorney in a little more detail, and, if requested, make an appointment. If at your appointment the firm accepts you as a client in writing, then the attorney will be able to provide you with employment law advice.