Employment Attorney Joseph & Herzfeld: Call Toll Free: 866-348-7394

Employment Law: Religion in the Workplace

Introduction
Under the First Amendment, Americans enjoy two complementary freedoms with respect to religion. We have the right to be free from a government-imposed religion, as guaranteed by the Establishment Clause, and a right to practice any religion, as guaranteed by the Free Exercise Clause. Despite the long history of these freedoms, they have presented difficult issues for the courts, and in the public and private sector. These problems range from what, exactly, may constitute a religion under the Constitution, to how much or how little involvement the government may have in religious matters. While private employers are not bound by the Constitution's restrictions on government, they are subject to federal and state laws that ban discrimination in employment. Given the many employers and religious faiths in this country, and the freedom we enjoy to express our views, the subject of religious discrimination continues to pose tough questions for employers and the courts.

Employer Accommodation of Religion
Because of our country's great diversity, employers encounter employees from virtually all countries and all religious backgrounds. In an ideal work environment, the religious beliefs of a given employee, or of the employer, do not create conflicts. Either is free to believe as he or she chooses and, as long as the work gets done satisfactorily, neither will encounter difficulty on the basis of religion. Yet many issues arise in the real working world that can create friction. The requirements and beliefs of one religion are not necessarily those of another. Thus, an employer and employee may discuss, or even argue over, religious principles. Further complicating the subject is the fact that religion is not simply a matter of belief. The faithful practice their religion through various actions. These can include: styles of dress, manner of keeping or wearing one's hair, trying to recruit others to their faith, following certain diets, praying, fasting, avoiding certain language or behavior and observing certain religious holidays. The many different characteristics of various religions therefore provide ample ground for disagreement, conflict, or even harassment among employers and employees.

The First Amendment, as does the rest of the Constitution, establishes the rights of individuals vis-a-vis the government. In the private sector, the matter of religion is governed by state and federal civil rights laws. The primary statute in this area is Title VII of the Civil Rights Act of 1964. Title VII prohibits private employers from discriminating on several bases, including race, color, religion, sex, or national origin. Various state laws also prevent discrimination. The courts have recognized various forms of prohibited discrimination, including disparate treatment, disparate impact, and a hostile environment.

Disparate treatment is an overt form of discrimination, involving unequal treatment on the basis of an employee's religion. An employer with a policy of refusing to hire or to promote, or only hiring and promoting, members of a particular religion would commit this form of discrimination. Few employers discriminate in such a blatant manner with evil intent. Some employers whose business purpose is religious in nature may be permitted to require certain employees to adhere to a particular faith. Courts will look closely, however, at the legitimacy of the employer's requirement for the position.

A more subtle form of discrimination arises through disparate impact. An employer discriminating in this way has no express policy for treating one or more religious groups unequally. Instead, a policy, which makes no mention of a particular religion, still functions to discriminate by affecting only certain religious groups. For example, a rule that forbade men from wearing any form of hat or other clothing on their heads during the business day might conflict with the dress rules of particular religions.

The third form of discrimination occurs where the employer maintains a hostile environment for employees of particular faiths. Typically, this arises where co-workers harass an employee on the basis of his or her faith to the point of creating a hostile or abusive work environment. The harassment must be severe or pervasive to constitute discrimination. Thus, a simple disagreement over religious principles would probably not constitute unlawful harassment. Severe insults or threats, or continuing words and actions meant to harass or intimidate an employee on the basis of religion, however, may cross the line of unlawful conduct. The employer is culpable if it knew or should have known of the illegal harassment.

While employers have a duty to accommodate the religious beliefs of their employees, the employer does have some leeway in how it conducts its business. There is a point, however, where the changes required to accommodate the employee become too burdensome on the employer. Probably a request by an employee to trade shifts when his or her faith prevents working on Saturdays is likely to be reasonable. Less reasonable might be a request that an employee have a particular holy month off each year. Whether an employer's policy that limits the conduct of members of a particular faith is unreasonable depends on the circumstances. For example, a restaurant owner may require its cooks to wear hairnets or short hair, even if this creates an inconvenience for members of a faith that does not allow them to cut their hair. A job may also have certain qualifications or requirements that have the effect of limiting participation by a particular religious faith. A radio station that played rock and roll music, for example, would be allowed to fire a disc jockey who refused to play rock and roll because it was against his religion.

The issue of discrimination based on religion does not always involve a nonreligious employer and a religious employee. Sometimes it is the employer that has the strong religious convictions. Courts resolving conflicts of this sort must determine whether the job the employee has been hired to do requires the religious background or practices the employer is demanding. Clearly, a church or synagog, for example, can limit the position of minister or rabbi to a person of proper religious qualifications. But what about the organist, accountant, or maintenance staff? It's less clear with these positions how significant faith is to the performance of the job. A court might hold that a church could not fire a maintenance worker just because he held another faith, or no faith. The organist, who participates in the religious service by supplying the music, would be a tougher call.

Maintaining a work environment that is respectful of both the employer's and the employee's needs is a difficult, but essential goal. Accomplishing it requires accommodating the religious practices of employees in a manner that does not unduly burden the employer.

Conclusion
Religion is a matter of belief and practice. What we believe on the subject of religion will rarely affect the duties of our employment. Yet the faithful also practice their religion, discussing it with others within and without their faith, and eating, dressing, and acting according to its principles. Federal and state law requires that employees not be treated unfairly on the basis of religion. How employers are to maintain a workplace free of discrimination is less clear. People like to discuss what they believe, and beliefs may conflict. It is the employer's duty to reasonably accommodate its employees' religions and to prevent or to stop unlawful harassment. Sometimes, the employer fails to make the work environment acceptable to the employee, and in that case the question of discrimination may become a matter for the courts.

© FindLaw. All rights reserved.