By James R. Andreen, Erstad & Riemer, P.A
Date: December 2015
Modern America has become a nation of diverse religions, some of which are familiar, some not as much. The laws of the United States and Minnesota require a balancing act to accommodate religious beliefs but not impose religious beliefs. Employers must be vigilant in making religious accommodations for their employees’ beliefs, practices and activities. Failure to do so can subject the employer to liability under federal Title VII and the Minnesota Human Rights Act (MHRA).
For example, in a case, an employer was forced to pay more than $300,000 in damages and reinstate an employee who was terminated because the employer determined it could not accommodate his Sabbath day observances in its work schedule.
Given the Constitution’s dual prohibitions on establishing religion on one hand and the allowance of its free exercise on the other, public entities face additional challenges in attempting to make religious accommodations for an employee’s belief. Thus, public entities must play out this balancing act every day to avoid the type of disastrous litigation described above.
This is especially true in regions where there is one dominant culture or religion and officials are confronted with religious accommodation demands by an employee with practices unfamiliar to the majority. Nonetheless, religious accommodation is required whether the practice is in the majority or minority.
Religious Accommodation of the Employee
Establish a Prima Facie Case of Religious Discrimination under Title VII and the MHRA. An employee must show:
- a bona fide religious belief conflicted with an employment requirement;
- defendants were informed of his or her belief; and
- there was adverse treated because he or she did not comply with the employment requirement.
Religion includes all aspects of religious observance and practice, as well as beliefs held subjectively by the employee. In most cases, whether a practice or belief is religious is not at issue. “However, in those cases in which the issue does exist, the [Equal Employment Opportunity Commission] will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” (29 C.F.R. § 1605.1.)
If an employee does not inform the employer of the belief of the activity in question, the employer cannot accommodate the employee. In Johnson v. Angelica Uniform Group, Inc., 762 F.2d 671, 673 (8th Cir. 1985) (no prima facie case where the plaintiff did not mention to employer need for accommodation to attend religious services before her termination for absenteeism): “Despite her opportunity to notify her employer in advance of her need to observe these Holy Days, Johnson did not mention her religious affiliation or her religious requirements until Aug.25, after she had missed 12 days of work. The district court found that Johnson’s mention of her religious needs at that time consisted only of a vague reference to needing time off in October for religious purposes, without stating any specific dates.”
Also in Al-Jabery v. ConAgra Foods, Inc. 2007 WL 3124628, (D.Neb. 2007), “The plaintiff has failed to present competent evidence that he informed ConAgra that he could not touch pork. Therefore, he cannot make out the second element of his prima facie case.”
Finally, in Rose v. Midwest Express Airlines, Inc. 2002 WL 31095361 (D.Neb. 2002), “Rose has not proved that she told Midwest Express of her need to pray—in any manner—before she was reported for sleeping or appearing to sleep.”
Accommodate or Show Undue Hardship. Once the employee establishes a prima facie case of religious discrimination, the burden shifts to the employer to show “that he [or she] is unable to reasonably accommodate to an employee’s … religious observance or practice without undue hardship on the conduct of the employer’s business.” (42 U.S.C. § 2000e(j).)
An employer must prove either that the employee was reasonably accommodated or that the employee could not be reasonably accommodated without undue hardship.
Only One Reasonable Accommodation Is Necessary. If an employer reasonably accommodates an employee’s religious observance, the statutory inquiry ends and the employer need not show that the employee’s proposed accommodations would cause an undue hardship. An employer fulfills its obligation when it offers a single reasonable accommodation. The employer will prevail in a suit if it offers at least one reasonable accommodation even if it also offers unreasonable ones.
What Is Reasonable? Unfortunately, reasonable accommodation is determined on a case-by-case basis. In essence, an accommodation is something that allows the employee’s practice but is not an “undue hardship.”
For example, reasonable accommodations have included requiring the employee to take unpaid leave for holy day observance that exceeds the amount allowed by the collective-bargaining agreement; changing the employees work duties slightly to avoid issues that interfere with religion; and, shift changes or allowing shift switching.
A hardship is undue when it causes more than a “de minimus cost” to the employer. Allowing workers to work part-time to attend their religious observances, restructuring operations or requiring other employees to cover for the employee (when the other employees were not required or had volunteered to do so), have been held to be undue hardship.
Employees’ Religious Practices in the Government Workplace
Although government employers often feel a need to avoid violating the establishment clause of the First Amendment by disallowing employees’ religious practices in the governmental workplace, such action could violate the employee’s right to practice their religions. Accommodation is required to avoid a religious discrimination claim by the employee.
It is important to note that simply disallowing religious practices on the grounds that it might offend others or create an establishment clause problem without any proof of that occurring, does not demonstrate “undue hardship” for the employer.
For example, in Brown v. Polk County, Iowa, a department supervisor was reprimanded for actively asserting his Christianity in the course of his duties. The court concluded that the county could not reprimand Brown for his spontaneous comments of faith and Bible references in the course of county business. The court stated that the county could not prove that other employees were offended or reasonably believed that the county was endorsing a religion by these acts.
“No evidence whatsoever was presented from employees in Mr. Brown’s department or from anyone else to show that Mr. Brown’s personnel decisions actually were affected by his religious beliefs or that employee concerns in that respect were either reasonable or legitimate.”
The court concluded, however, that the county properly reprimanded Brown for having his secretary type his Bible study notes during her regular work hours. This actually did interfere with county business and was a hardship.
Conflicts Between Government’s Directives and Free Exercise of Religion
“Government significantly burdens the exercise of religion if it significantly constrains conduct or expression that manifests a central tenet of a person’s religious beliefs, meaningfully curtails the ability to express adherence to a particular faith, or denies reasonable opportunities to engage in fundamental religious activities.”
One type of burden occurs when government conditions the receipt of an important benefit, such as employment, upon conduct proscribed by a religious faith or denies such a benefit because of conduct mandated by religious belief. Thus, an employer’s directive conflicts with an employee’s religion when the employee can show the directive “excessively burdens” the practice of their religion.
In Altman v. Minnesota Department of Corrections, employees objected to a mandatory training program about issues of gays and lesbians in the workplace. They brought a lawsuit claiming their right to freely exercise their religion was violated by having to sit through the program, which, they stated, violated their Christian beliefs that homosexuality was a sin.
The court concluded that attendance at the training program was not a substantial burden on the religious views of the objecting employees: “[T]he only burden placed on [the employees] was a requirement they attend a 75-minute training program at which they were exposed to widely accepted views that they oppose on faith-based principles. This is not, in our view, a substantial burden on their free exercise of religion.”
Public entities need to be aware of the balancing that needs to be performed when accommodating an employee’s religious beliefs. It is important not to discriminate against an employee’s religion. Further, public entities must provide religious accommodation for an employee’s religious practices and have tolerance for an employee’s religious expression. Failure to do so will create liability for the organization.