I. Religious Discrimination

The Civil Rights Act of l964 prohibits religious discrimination and requires employers to reasonably accommodate the religious practices of employees and prospective employees. This law covers employers of 15 or more persons. Various state laws also prohibit discrimination on the basis of creed (i.e., because of a person's observance of a certain day as a Sabbath or holy day). In some states, employers may not require attendance at work on such a day, including travel time, except in emergencies or in situations in which the employee's presence is indispensable. Absences for these observances must be made up at some mutually agreeable time, or can be charged against accumulated leave time.

A recent Supreme Court case illustrates just how costly a lack of knowledge in this area can be. A terminated worker sued after she was fired for refusing to work overtime on Saturdays due to her religious beliefs. In this particular case, an auto manufacturer hired a woman to work on an assembly line. Initially, the job did not conflict with her religious beliefs, which required that she not work from sunset Friday to sunset Saturday, because the assembly line operated only from Monday through Friday. However, when the company began requiring mandatory overtime on Saturdays, the worker refused on religious grounds, and was fired after missing a series of Saturday work shifts.

The employee brought suit in federal court, alleging the company violated Title VII of the Civil Rights Act that makes it unlawful to fire or discriminate against an employee on the basis of "race, color, religion, sex or national origin," and that a 1972 amendment to the law requires employers to prove they are unable to accommodate an employee's religious practice without "undue hardship."

The primary issue before the trial court was whether the company had made a bona fide attempt to meet the needs of the employee. The court ruled that the woman's absence did not injure the company and that her request was not unreasonable. The worker was awarded $73,911 in back pay and benefits, despite the employer's argument that the proper running of the business would be affected by high absenteeism rates on Saturday, numerous complaints from co-workers that the employee should not receive special privileges (i.e., that it was unfair to require them to work on Saturday while allowing the woman to take time off) and waiting lists of more senior employees requesting transfers to departments with no Saturday work.

However, the Supreme Court let the lower ruling stand, comment- ing that the company could have acted on the employee's request without undue hardship through the use of people employed speci- fically for absentee relief.

The following summarizes what companies can do in this area to avoid civil rights suits:

• Employers have an obligation to make reasonable accommodations to the religious needs of employees and prospective employees;
• Employers must give time off for the Sabbath or holy days except in an emergency;
• If employees don't come to work, employers may give them leave without pay, may require equivalent time to be made up, or may allow the employee to charge the time against any other leave with pay, except sick pay.

Employers may not be required to give time off to employees who work in key health and safety occupations or to any employee whose presence is critical to the company on any given day. Also, employers are not required to take steps inconsistent with a valid seniority system to accommodate an employee's religious practices and are not required to incur overtime costs to replace an employee who will not work on Saturday.

Employers have no responsibility to appease fellow employees who complain they are suffering undue hardship when a co-worker is allowed not to work on a Saturday or Sabbath due to a religious belief, while they are required to do so. Finally, employers are not required to choose the option the employee prefers, as long as the accommodation offered is reasonable. However, penalizing an employee for refusing to work on Christmas or Good Friday most likely constitutes religious discrimination, depending on the facts.

Counsel Comment #120: With each request by an employee or prospective employee for time off for religious practices, document the date and nature of the request and the alternatives considered by your company in meeting that request. When an employee's request is denied because of an undue hardship, a full record of the nature of the hardship should be kept on file.

TIP: The definition of a "religious belief" is quite liberal under the law. If a worker's belief is demonstrably sincere, the belief may be considered religious even though not an essential tenet of the religion of which the employee is a member. The applicant's or employee's knowledge that a position would involve a conflict does not relieve the employer of its duty to reasonably accommodate, absent undue hardship.

In most cases, the court weighs the facts to determine whether the employer offered a reasonable accommodation or that undue hardship existed; the plaintiff will attempt to show that the hardship was not severe or that the accommodation offered was not reasonable.

What constitutes undue hardship varies on a case-by-case basis. Generally, undue hardship results when more than a de minimis cost (i.e., overtime premium pay or a collective bar- gaining agreement is breached) is imposed on the employer.

The "undue hardship" defense is an exception that com- panies may use successfully to circumvent current law in this area. Speak to legal counsel to fully explore your options and document such a defense in the most appropriate manner.