What are your religious rights at work?

 Minnesota Family Council, 2001

Have you ever wondered to what extent the law requires employees to leave their faith at the workplace door and not exercise their religious rights in the work place? How much leeway does the law give to employers to regulate the religiously related behavior and practices of their employees? These important issues are associated with an often misunderstood area of law.  We intend to provide a brief overview that will shed some light on these important topics.[1]

Religious issues in the workplace are affected by state and federal law. Both the Minnesota Human Rights Act (“MHRA”) [2] and Title VII (Equal Employment Opportunity) of Civil Rights Act of 1964 (“Title VII”) [3] prohibit religious discrimination in employment. Specifically, these laws prohibit an employer from discriminating in hiring, firing, promoting, or granting benefits and compensation to employees based on the employees’ religion.  Title VII goes beyond Minnesota law because it requires that, whenever possible, an employer must offer the employee a “reasonable accommodation” based upon religion.  So Minnesota employers covered under Title VII are subject to both the non-discrimination and reasonable accommodation requirements in these two Acts.  Title VII is also broader than Minnesota law in that it not only protects an individual’s religious observance and practice, but it also protects their beliefs. [4]   These beliefs can extend beyond the practices and beliefs associated with the major religions, but also to sincerely held moral and ethical beliefs that serve roles similar to conventional religions. [5]    Political and social ideologies, however, do not fall within the broad parameters of “religion” under Title VII. [6]

There are two possible forms of prohibited religious discrimination.  One form is discrimination based on religious faith or affiliation and the law prohibits discriminating for or against persons because they belong to a certain religious group. The other form of religious discrimination is a failure to make a reasonable accommodation to an employee’s religious observances and practices.

Often, the issue of whether an employer discriminated against an employee is determined by the motivation of the employer.  For example, the Minnesota Supreme Court held that Northwest Airlines did not religiously discriminate against a Muslim woman when a gate attendant (who was Baptist) told the woman that her attire violated the airline’s dress code.  The court found that because the employee did not know that the woman was a Muslim, there was not a discriminatory motive on the part of Northwest Airlines or its employees. [7]

Exception for Religious and Fraternal Organizations

In certain circumstances, some religious or fraternal organizations are not prohibited from discriminating based on religion. A religious or fraternal organization may establish job qualifications based upon religion when religion is a “bona fide occupational qualification (BFOQ)”.  In order to qualify as a BFOQ, a job requirement must relate to the essence of the job or the central mission of the employer’s business and be more than merely related to the job. [8]

This exception relieves religious organizations only from the ban on employment discrimination based on religion. [9] However, it does not exempt such organizations from other prohibitions within Title VII, such as sex, race, or national origin discrimination.

Reasonable Accommodation

Employers must reasonably accommodate an employee’s religious beliefs, observances, and practices, unless the employer demonstrates that doing so would create an “undue hardship” on the conduct of the employer’s business. [10] Undue hardship essentially means that the accommodation involves more than an ordinary administrative cost of accommodating the employee’s religious beliefs. [11] An employer has met its obligation under Title VII when it demonstrates that it has offered a reasonable accommodation to the employee but the accommodation offered by the employer does not have to be the most reasonable accommodation. [12]   Also, the duty to accommodate employees’ religious observances does not require the employer to violate the seniority terms of a union contract or other seniority rights that its employees may have. [13]

Generally, reasonable accommodation without undue hardship is possible where a voluntary and substantially similar substitute is available. One means of providing reasonable accommodations for religious practices is the creation of a flexible work schedule for individuals requesting accommodation.  When flexible scheduling is not sufficient or possible, accommodation may be accomplished by changing the employee’s job assignment or by giving the employee a lateral transfer.  Unpaid leave is not considered to be a reasonable accommodation when paid leave is provided for all purposes except for religious purposes. [14] Permanently transferring an employee to a different job or a different shift in order to accommodate religious beliefs is one example of a reasonable accommodation even if it may involve a demotion or reduce the employee’s chance of promotion. [15]

Of particular interest is the fact that mandatory “new age” training programs, designed to improve employee motivation, cooperation or productivity through meditation, yoga, biofeedback or other practices, may conflict with the non-discriminatory provisions of Title VII.  Employers must accommodate any employee who gives notice that these programs are inconsistent with the employee’s religious beliefs, whether or not the employer believes there is a religious basis for the employee’s objection.

There are also circumstances when the employer’s duty to make a reasonable accommodation of religion requires no offer of accommodation at all if an investigation reveals that no accommodation is possible.  In one case, for example, a Missouri school system was justified in discharging a high school interpreter for the deaf who refused for religious reasons to “sign” profanity.  She interpreted the famous line of “Frankly, my dear, I don’t give a damn” from Gone with the Wind as “Frankly, I don’t care.” The employee proposed the alternatives of transferring her to an elementary school or discussing her non‑literal translations with parents in advance. However, the court found that the employee’s proposals were not reasonable because the job of translation cannot include editorial changes. Consequently, the employer was justified in offering no accommodation whatsoever. [16]

Employer Defenses

An employer may defend against claims of dissimilar effect on employees and dissimilar treatment of employees by making distinctions in hiring on the basis of religion, to the extent that religion is a bona fide occupational qualification as discussed previously.  For the BFOQ defense to apply, the qualification must be reasonably necessary to the normal operation of the employer’s business. Although the use of the BFOQ defense against claims of religious discrimination is uncommon, it has been upheld in certain specific circumstances such as where a secular university preferred a Jesuit professor for its Religion and Philosophy department to preserve its religious identity and heritage. [17]

Dress, Grooming and Religious Discrimination

So can an employer regulate the religiously related dress and grooming of its employees?  Well, as is the case with a number of legal issues, it depends on the circumstances.  The requirement that an employer reasonably accommodate an employee’s religious beliefs and practices, whenever possible, also extends to employee dress and grooming.  For example, a Catholic employee, pursuant to a religious vow, wore a button to work with a color photograph of a developing fetus and an anti-abortion message.  The employer did not have a dress code, but after the button created much disruption, it asked the employee to either (1) wear the button only in her cubicle, (2) cover the button at work, or (3) wear a different anti-abortion button without the picture.  The court decided that allowing her to wear the button only if it was covered up was a reasonable accommodation because this option allowed her to comply with her vow to wear it and respected the desire of her co-workers not to look at it.  The court commented that it was the color photograph of the fetus that offended the employee’s co-workers, many of whom were reminded of circumstances unrelated to abortion (e.g. infertility problems and miscarriage). [18]

Courts have also recognized the viability of a claim for religious discrimination where an employee sued on the grounds that his employer discharged him for wearing a beard, which he wore because his religion prohibited shaving facial hair.  The court stated that the employee could claim religious discrimination by showing that the no-beard policy had a dissimilar effect on persons who grow beards for religious reasons when compared to other employees. [19]   For instance, a company was required to accommodate a Jewish computer programmer’s religious beliefs requiring him to have a beard when it was shown that the company accommodated members of other religions. [20]      

Whether the plaintiff wins or loses generally depends on the overall conduct of the employer and the type of business in which the employer is engaged. Generally, an employer may insist upon strict compliance with grooming and dress standards if it can establish some reason other than a general preference for a certain type of appearance.   Employer grooming rules are more likely to be upheld if they are applied consistently and based on substantial concerns, such as safety concerns.  Accommodation may not be possible because of the nature of the business. For example, courts have upheld employer grooming restrictions against an employee who had potential exposure to toxic gases and who was unable to wear a respirator because of a beard. [21]

Religious discrimination claims may also fail if the employer falls into one of the exceptions to Title VII or would suffer “undue hardship” by allowing the plaintiff to wear religious garb in the workplace. For example, in one case a receptionist at a Christian retirement home, was hired without first discussing her religious beliefs and was then asked not to wear her Muslim head covering while at work. The court ruled in favor of the retirement home operators because of Title VII’s exemption for religious entities and because the head covering undermined the employer’s message of Christianity. [22]

Religious Harassment

In addition to refraining from indefensible religious discrimination, an employer must maintain a work environment that is not hostile or abusive with regard to religion.  Title VII requires that an employer take prompt action to prevent an employee from expressing their opinion in a way that abuses or offends their co-workers. [23] Speech and/or conduct constitutes harassment if it is “severe and pervasive” enough to create a “hostile or abusive work environment” based on an employee’s religion or other protected category. [24]   A hostile work environment can be created by slurs, jokes, comments and other forms of ridicule, persistent “unwelcome” proselytizing of subordinates or co-workers and any “mandatory” religious activity in the workplace. [25]   However, merely handing out a religious book does not create a hostile working environment. [26]

So what does this all mean?  It means that while workers are not necessarily required to check their faith at the door of their workplace, employers do have the right to take action and regulate religiously related activity and practices in some narrow circumstances and can decline to accommodate their employees’ religious practices if doing so creates an undue hardship.  It also means that employers have the right and obligation to control the workplace so as to prevent religious harassment.  If you are interested in learning more, the Equal Employment Opportunity Commission web site at www.eeoc.gov offers helpful information on these issues as well as numerous other employment topics.  

[1] Since this is an overview, individuals with specific legal issues should consult with an attorney and not rely on this as definitive legal advice.

[2] Minn. Stat. § 363 et seq.

[3] 42 U.S.C.A. 2000e

[4] 42 U.S.C.A. 2000e, § 701(j).

[5] United States v. Seeger, 380 U.S. 163, 83 S. Ct.  850, 13 L.Ed.2d 733 (1965).

[6] Bellamy v. Mason’s Stores, Inc. 368 F. Supp 1025 (W.D.Va. 1973) (racist and anti-Semitic ideologies advocated by the Klu Klux Klan not deemed to be religion pursuant to Title VII).

[7] Bilal v. Northwest Airlines, Inc., 537 N.W. 2d 614, 619 (Minn. 1995)

[8]  International Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991).

[9] 42 U.S.C.A. 2000e-1(a).  Also, where religion is a bona fide occupational qualification that is reasonably necessary to the normal operation of the employer’s business, a religious organization may discriminate on the basis of religion.  42 U.S.C.A. § 2000e-2(e).

[10] 42 U.S.C.A. § 2000(e)(j).

[11] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

[12] Ansonia Board of Education v. Philbrook, 479 U.S. 60, 107 S. Ct. 367, 93 L.Ed. 2d 305 (1986).

[13] Hardison, 432 U.S. at 79-81.

[14] Ansonia  at 69.

[15] Mann v. Milgram Food Stores, Inc., 730 F.2d 1186, 1188-89 (8^th Cir. 1984).

[16] Sedalia No. 200 Sch. Dist. v. Missouri Comm’n on Human Rights, 843 S.W.2d 928 (Mo.App.1992).

[17] Pime v. Loyola University of Chicago, 803 F.2d 351 (7^th Cir. 1986).

[18] Wilson v. U.S. West Communications, Inc., 860 F. Supp. 665 (D. Neb. 1994), aff’d, 58 F.3d 1337(8^th Cir. 1995). 

[19] Iasac v. Butler’s Shoe Corp., 511 F. Supp. 108 (N.D. Ga.1980)

[20] EEOC v. Electronic Data Sys., 31 FEP Cas. (BNA) 588 (W.D.Wash.1983). See EEOC v. United Parcel Serv, 94 F.3d 314 (7th Cir.1996).

[21] Bhatia v. Chevron USA, Inc., 734 F.2d 1382 (9th Cir.1984).

[22] EEOC v. Presbyterian Ministries, Inc., 788 F.Supp. 1154 (W.D.Wash.1992).

[23] Davis v. Monsanto Chem. Co., 858 F.2d 345, 350 (6^th Cir. 1988).

[24] See Harris v. Forklift Systems Inc., 510 U.S. 17, 21-22 (1993).

[25] See Weiss v. United States, 595 F. Supp. 1050, 1056-57 (E.D Va. 1984); Venters v. City of Delphi, 123 F. 3d  956, 972-74 (7^th Cir 1997); Young v. Southwestern Savings and Loan Ass’n., 509 F.2d 140, 142 (5^th Cir 1975).

[26] Taylor v. National Group of Cos., Inc., 729 F. Supp. 575 (N.D. Ohio 1989).

Copyright 2001 Minnesota Family Council. No restriction on reproduction if not taken out of context.

Minnesota Family Council / Minnesota Family Institute
2855 Anthony Lane South, Minneapolis MN, 55418-3265
phone 612.789.8811, fax 612.789.8858, www.mfc.org

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