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► Handling Time Off Requests For Religious Observance

The holidays are just around the corner, and like every year, employers should start bracing for time-off requests. Many requests may be for religious observation. Employers should be aware and mindful of how they address requests. Indeed, according to statistics compiled by the U.S. Equal Employment Opportunity Commission (EEOC), last year alone, employers in the United States paid out approximately $9.5 million in monetary benefits to applicants and employees as a result of religious discrimination charges. And this doesn’t include amounts paid through settlement of claims. Read on to ensure your company is equipped to handle religious accommodation requests this holiday season.

Religion under Title VII

Title VII of the Civil Rights Act of 1964 and many states (e.g., the Wisconsin Fair Employment Act (WFEA)) prohibit discrimination based on religion and creed, respectively. They both mandate that employers reasonably accommodate the religious beliefs and practices of employees, unless doing so would cause undue hardship. The protection extends to religious discrimination that involved treating an employee differently because they are married to (or associated with) someone of a particular religion.

Religion is defined broadly to include not just common, well-recognized religions but also sincerely held beliefs. As such, even moral and ethical beliefs, which aren’t based on a belief in a deity, are protected so long as they are sincerely held with the strength of traditional religious views. Moreover, beliefs and practices can be “religious” even if the employee is affiliated with a religious group that doesn’t recognize that belief or practice.

The U.S. 7th Circuit Court of Appeals (whose rulings apply to employers in Wisconsin, Illinois, and Indiana) has explained that this broad and intentionally hands-off definition of religion protects courts from becoming embroiled in determining whether certain practices are orthodox in nature. The broad protection does not, however, extend to political philosophies, social views, or personal preferences.

Determining the ‘Sincerity’ of Belief

How are you to determine the “sincerity” of a belief? The employee’s burden in establishing the sincerity of a religious belief isn’t a heavy one. If you have a bona fide doubt about the accommodation request, however, you are entitled to make a limited inquiry. According to the EEOC, factors that may provide a reasonable basis to question the sincerity of a belief include:

  • Whether the employee previously acted in a manner “markedly inconsistent” with the belief;
  • Whether the accommodation being sought is “particularly desirable” and is likely to be sought for nonreligious reasons;
  • Whether the timing of the request is suspect (e.g., it follows a previous request by the employee for the same benefit for nonreligious reasons); and
  • Whether the employer otherwise has reason to believe the request is being sought for nonreligious reasons.
     

None of these factors are dispositive, however. Indeed, the EEOC warns you shouldn’t assume an employee’s beliefs are insincere simply because their practices are inconsistent with the religion.

Reasonable Accommodation

You must reasonably accommodate an employee’s religious beliefs and practices unless doing so would cause undue hardship. The employee bears the burden of providing notice of the conflict between the religious need and the job requirements. You are then required to make a good-faith effort to resolve the conflict by providing a reasonable accommodation.

Notably, you aren’t required to provide the specific accommodation the employee requests. The statutory inquiry ends once you provide a reasonable accommodation.

Undue Hardship

You aren’t required to provide an accommodation that would cause “undue hardship” for your business. An accommodation poses an undue hardship when it causes more than a de minimis (minimum) cost or burden. Determining whether an accommodation would result in an undue hardship requires a case-by-case analysis.

Factors to consider in this analysis include the nature of your business, the nature of the employee’s duties, the cost of the accommodation in relation to your size and operating costs, and the number of employees who require an accommodation. The “cost” of the accommodation doesn’t just include the financial cost but also the burden on the day-to-day operations of the business. Depending on other relevant factors, it may be an undue hardship if the accommodation would infringe on other employees’ rights or benefits, have a negative effect on the efficiency of business operations, or pose a risk to workplace safety.

Notably, it isn’t appropriate to deny an accommodation based on hypothetical hardships that may arise. You must evaluate actual objective information when determining whether a situation would present a hardship. As such, you cannot deny an accommodation on the mere belief that it will cause others to seek the same type of accommodation.

Along those same lines, complaints by coworkers who may be offended or who allege “special treatment” is being afforded to the employee likely won’t suffice to establish an undue hardship. Rather, as it relates to coworker complaints, you will have to prove the accommodation actually infringes on the rights of coworkers or is a disruption to their work.

Bottom Line

You should accommodate requests for reasonable accommodation, unless you can establish the accommodation would result in an undue hardship. Whether a particular accommodation results in undue hardship is a determination based on the particular facts of each case. While the de minimis standard is slightly more favorable to employers, denial of accommodation must still be based on objective facts establishing an undue hardship, rather than subjective concerns.

By Aneet Kaur. Ms. Kaur is an associate with Axley Brynelson, LLP, in Madison, Wisconsin. Kaur represents and advises clients in a variety of areas including civil litigation, eminent domain, labor and employment, and medical malpractice defense.

[10/2022]

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