October 2013 Bar Bulletin
 
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October 2013 Bar Bulletin

Reasonable Accommodation of Uncommon Religious Beliefs

By Karen Sutherland

 

Religion is one of the protected classes under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin. Title VII covers all private employers, federal, state and local governments, and education institutions that employ 15 or more individuals. It also covers private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.1

According to the EEOC Compliance Manual's guidance on religion, the number of religious discrimination charges filed with the EEOC more than doubled from 1992 to 2007.2 The EEOC also has noted that many employers seek guidance in managing the issues that arise as religious diversity increases.3

While employers may understand that religious diversity is increasing, they may be surprised to find that the EEOC has no list of protected religions or limit on the types of religions that are covered by Title VII. When viewed in the context of the First Amendment, the reason behind the lack of specificity under Title VII is clear. The First Amendment states, in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...."

What Is a "Religion" under Title VII?

As set forth in the EEOC Compliance Manual at Section 12:

  • Title VII defines "religion" to include "all aspects of religious observance and practice as well as belief."
  • Religion includes not only traditional, organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.
  • Religious beliefs "need not be confined in either source or content to traditional or parochial concepts of religion."
  • A belief is "religious" for Title VII purposes if it is "'religious' in the person's own scheme of things," i.e., it is "a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by ... God."
  • An employee's belief or practice can be "religious" under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual's belief or practice, or if few - or no - other people adhere to it.
  • Religious beliefs include theistic beliefs as well as non-theistic "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views."
  • 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." Social, political or economic philosophies, as well as mere personal preferences, are not "religious" beliefs protected by Title VII.4

How To Tell if a Practice Is Part of a Religion

Determining whether a practice is religious turns not on the nature of the activity, but on the employee's motivation.5 In other words, focus on the "why," not the "what." The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons.6

Whether a practice is "religious" is a situational, case-by-case inquiry. For example, one employee might observe certain dietary restrictions for religious reasons while another adheres to the restrictions for secular (e.g., health or environmental) reasons.7 The same practice might in one case be subject to reasonable accommodation under Title VII and not in another case because the practice is engaged in for secular reasons. For example, a dietary restriction would need to be reasonably accommodated under Title VII if it was a religious belief, but not if it was due to a secular belief.8

Some of the EEOC's examples relating to uncommon or unfamiliar religious beliefs are summarized below.9

Morgana asks for time off on October 31 to attend the "Samhain Sabbat," the New Year observance of Wicca, her religion. Her supervisor refuses, saying that Wicca is not a "real" religion, but an "illogical conglomeration" of "various aspects of the occult, such as faith healing, self-hypnosis, tarot card reading, and spell casting, which are not religious practices."

The supervisor's refusal to accommodate Morgana on the ground that he believes her religion is illogical violates Title VII unless the employer can show her request would impose an undue hardship. The law applies to religious beliefs even though others may find them "incorrect" or "incomprehensible."

Edward practices the Kemetic religion, based on ancient Egyptian faith, and affiliates himself with a tribe numbering fewer than 10 members. He states that he believes in various deities and follows the faith's concept of Ma'at, a guiding principle regarding truth and order that represents physical and moral balance in the universe.

During a religious ceremony, he received small tattoos encircling his wrist, written in the Coptic language, which express his servitude to Ra, the Egyptian god of the sun. When his employer asks him to cover the tattoos, he explains that it is a sin to cover them intentionally because doing so would signify a rejection of Ra. These can be religious beliefs and practices even if no one else or few other people subscribe to them.

By way of contrast, the EEOC's position is that the following example is not a religious belief:

Sylvia wears several tattoos and has recently had her nose and eyebrows pierced. A newly hired manager implements a dress code that requires that employees have no visible piercings or tattoos. Sylvia says that her tattoos and piercings are religious because they reflect her belief in body art as self-expression and should be accommodated.

However, the evidence demonstrates that her tattoos and piercings are not related to any religious belief system. For example, they do not function as a symbol of any religious belief and do not relate to any "ultimate concerns" such as life, purpose, death, humanity's place in the universe, or right and wrong, and they are not part of a moral or ethical belief system. Therefore, her belief is a personal preference that is not religious in nature.10

Required Accommodations

An employer is required to reasonably accommodate the religious observances or practices of an employee or prospective employee unless the proposed accommodation would impose an undue hardship. As set forth in the EEOC Compliance Manual at Section 12, religious observances or practices include:

  • attending worship services or praying;
  • wearing religious garb or symbols;
  • displaying religious objects;
  • adhering to certain dietary rules;
  • proselytizing or other forms of religious expression; and
  • refraining from certain activities.

Just because an employer has never heard of an employee's religion does not mean that the employer has no duty to reasonably accommodate the employee or applicant's religious beliefs. If an employer has doubts as to whether an employee's or applicant's beliefs constitute a religion, the employer should seek guidance from a lawyer with experience in this area or from the EEOC.

The information set forth in this article is a brief summary of a complex area of the law and should not be relied on for any purpose. Karen Sutherland is the chair of the Employment and Labor Law Practice Group of Ogden Murphy Wallace, PLLC. She regularly writes, lectures, advises business, and conducts workplace investigations on workplace issues, ethics and conflicts of interest. She can be reached at ksutherland@omwlaw.com.

1 http://www.eeoc.gov/facts/qanda.html.

2 http://www.eeoc.gov/policy/docs/religion.html.

3 Id.

4 Id. (citations omitted).

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

 

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