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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Karma, Dogma, Dilemma: Religious Accommodation at Work

As society has become more diverse, conflicts between the requirements of employees’ religion and employers’ business have increased, challenging courts and legislatures to devise reasonable accommodations to satisfy both.  Resulting standards are often fact-driven and difficult to interpret, with result that further litigation seems inevitable.

 

If it seems like you have been hearing and reading more about workplace religion issues either in your practice or in the media, you are exactly right. There has been considerable media coverage of cases involving prominent Minnesota employers defending against religious discrimination claims and news accounts concerning workplace conflicts over employees’ religious beliefs. Over the past 15 years, the number of religious discrimination charges filed with the EEOC has more than doubled.  As the work force has become more culturally diverse, so too have tensions between employees’ rights to accommodation of their religious beliefs and employers’ ability to do so. Recognizing this tension and the rise of religious discrimination claims, the EEOC in 2008 released a new compliance manual to assist practitioners, employers, and investigators in navigating Title VII’s requirements concerning religious discrimination and the accommodation of religious differences.

Minnesota’s Changing Demographics
There is no doubt Minnesota is becoming more culturally diverse.  According to a December 2008 study published by the Minnesota State Demography Center, Minnesota’s nonwhite and Latino population has increased 28 percent since 2000.1  This same study showed that 36 percent of Minnesota’s minority population is foreign-born and between 2000 and 2007 the Latino, Asian, and Black population increased at a much faster pace than the white, non-Latino population.  Although Minnesota remains less diverse than the national average, the rate of growth of the minority population in Minnesota (28%) has exceeded the comparable rate nationally (19%).2  The Minnesota Department of Human Rights has noted that, by some estimates, more than 40,000 Somali immigrants have settled in Minnesota in the past few years.  The Department also estimates that as the Somali population continues to grow, so too will the tension between their (predominantly) Islamic values and the requirements of Minnesota employers, many of whom are simply unfamiliar with these employees’ religious beliefs.  Increased diversity within the workforce will likely lead to more employer-employee discord and litigation.

Some of these religion-related conflicts have erupted into well-publicized litigation.  For example, the Metropolitan Airports Commission’s (“MAC”) decision to pass an ordinance imposing penalties upon cab drivers who, citing religious reasons, refused to serve customers made national headlines.  More specifically, the MAC sought to impose penalties upon drivers who refuse to transport customers carrying alcohol or who have dogs with them.  The USAToday ran a feature article about the case.3

More recently, in a second newsworthy case, the U.S. Equal Employment Opportunity Commission commenced litigation on behalf of Somali Muslims working at a Minnesota food-processing plant.  The EEOC alleged in the lawsuit that the employer violated federal law by terminating Somali workers who prayed during their work shifts. The EEOC alleged in a separate lawsuit that an employment agency supplying workers to the food-processing plant required applicants to sign forms acknowledging they might be required to handle pork.  Such a requirement was in conflict with some Muslim employees’ religious beliefs that preclude them from handling pork products.  In November 2008, the EEOC reported in a press release that a consent decree was preliminarily approved wherein the employer agreed to pay certain monetary relief to settle the matter and add a paid break during each shift to accommodate Muslim employees who wish to pray.4  The employment agency agreed to stop using the “pork form.”

Finally, also in late 2008, the EEOC filed suit against Minnesota-based Mesaba Airlines5 alleging that the airline had a policy that did not permit new employees to modify their schedules within the first 90 days of employment.  The action was filed on behalf of a class of new employees, including a Jewish customer-service agent who was alleged to have been required to work past sundown on a Friday evening, which is the beginning of the Jewish Sabbath.  The suit is currently in the discovery phase in federal district court in St. Paul.

It is fair to say that these types of cases will continue to grab the headlines, locally and nationally, as religious-based lawsuits and charges continue to increase.

Religious Discrimination and Title VII
The analysis of reasonable accommodation of religious beliefs in the workplace begins with the specific statutory protections of Title VII of the Civil Rights Act of 1964.  Employers with 15 or more employees, both public and private, are prohibited from: refusing to hire, discharging, or otherwise discriminating against employees based on their religious beliefs as related to the terms and conditions of their employment.6  Title VII defines religion to include “all aspects of religious observance and practice as well as belief.”7

One of the legal difficulties for employers stems from this definition of religion.  For purposes of Title VII, religion includes not only traditional belief systems such as Christianity, Judaism, or Islam but also religious beliefs which are far from mainstream.  Take, for example, Cloutier v. Costco Wholesale Corp.,8 where the employee sought accommodation of her religious practice of displaying her body piercings.  The plaintiff, Cloutier, was a member of the Church of Body Modification, which represents a collection of members practicing ancient and modern body modification rites which they believe are essential to their spirituality.  Cases like this highlight that, under Title VII, a “religion” can very well comprise beliefs that are new or uncommon, are not part of a formal church or sect, are subscribed to by a small number of people, or may to some seem illogical.  Equally important is the general rule that absent special circumstances, employers are prohibited from challenging the legitimacy of an employee’s religious beliefs, even if they are different or outside the mainstream.

As for the reach of Title VII, certain employers are exempt from Title VII’s requirements concerning religious discrimination by virtue of their religious purpose.  For example, religious corporations, associations, and religion-based educational institutions are permitted to give employment preference to members of their own religion.9 This only makes sense; it would be an odd result if, for example, a Lutheran church was precluded from making employment decisions in order to further its religious mission, e.g., by hiring a Lutheran pastor to lead its Lutheran congregation.  It would be equally strange if that same Lutheran church was prohibited from turning down a Hindu holy man seeking the job.

Another exception to Title VII’s religious discrimination prohibitions is what is known as the bona fide occupational qualification (BFOQ) defense.  Under limited circumstances, employers may impose religion-based job requirements as a bona fide occupational qualification, reasonably necessary to the operation of the business.  One of the most well-known cases involving this employer defense isKern v. Dynalectorn Corp.,10 wherein the court upheld a job requirement that a pilot convert to Islam (as a condition of employment) because his failure to do so would result in his beheading under Saudi Arabian law if he piloted a plane into Mecca.  Under the circumstances, that sounds like a pretty reasonable BFOQ!

Accommodating Religious Beliefs 
Title VII requires employers to reasonably accommodate an employee whose religious beliefs or practices are in conflict with a work requirement, unless providing the accommodation imposes an undue hardship upon the employer.11 As originally adopted, Title VII contained no religious accommodation requirement.  Despite an EEOC regulation interpreting Title VII’s prohibition on religious discrimination to include employers’ obligation to accommodate their employees’ religious practices, courts held that “the gravamen of an offense under the statute is only discrimination.”12  Even today, Title VII’s prohibition on employment discrimination does not mention any duty to accommodate.  Instead, the accommodation requirement is built into the statutory definition of religion.13

Often times, accommodation comes in the form of modifying a policy, excusing the employee from a particular job requirement, or making a schedule change so the employee can attend a religious event.  However, the touchstone of this analysis is the concept of “undue hardship,” which exists if the accommodation would impose more than a de minimis cost on the employer.”  It is the employer’s burden to prove undue hardship and it is notable that this standard (under Title VII) is substantially lower than that which must be proven under the Americans with Disabilities Act (ADA), where hardship is defined as “significant difficulty or expense.”14  As discussed below, what constitutes a reasonable accommodation and/or an undue hardship is a moving target.

The Minnesota Human Rights Act (“MHRA”) makes it an unlawful employment practice for an employer (and certain other entities such as labor organizations) to make employment decisions based upon an individual’s religion.15 Minnesota law also has an express religious exception for religious and fraternal organizations where religion is a BFOQ.16 However, there is an important difference between Title VII and the MHRA.

Unlike Title VII, the MHRA does not contain any express language imposing a religious accommodation requirement upon employers.  To date, the Minnesota appellate courts have not been required to reach a conclusion as to whether, in the absence of such statutory language, there exists such an obligation under Minnesota law.  Nevertheless, the Minnesota Department of Human Rights has taken the position that an accommodation requirement does in fact exist.  In an online newsletter from May-July 2004, a Department representative stated, “[t]he statute simply prohibits adverse treatment based on religion.  But, in some instances, the facts can be such that failure to accommodate a religious belief is adverse treatment.”17 Unfortunately, there are no clear answers on the horizon regarding this issue.

Enforcement Guidelines 
In the summer of 2008, the EEOC published an updated Compliance Manual (“Manual”) which contains enforcement guidelines, case studies, and employer best practices.18 While EEOC guidelines and compliance manuals are not accorded the same weight as regulations,19 they are used as persuasive authority.  The 2008 Compliance Manual, while helpful as a general resource, confirms that the answers to workplace religious accommodation issues remain unclear.

The difficulty for employers in this area of the law is perhaps best summed up by the EEOC when it describes “reasonable accommodation” as a relative term that cannot be given a hard and fast meaning; each case necessarily depends upon its own facts and circumstances, and comes down to a determination of reasonableness under the unique circumstances of the individual employer-employee relationship.20  The same fact-specific standard applies to the undue hardship defense which must be considered under the particular factual context of each case.  The same holds true under state law (assuming the accommodation obligation exists).  The following question and answer, described by the Minnesota Department of Human Rights in one of its online publications, illustrates the dilemma: “Suppose an employee declares that he or she is a witch or a member of a satanic cult, and wants a religious accommodation?”  The Department noted that “the answer isn’t clear, but it may depend on the requested accommodation and the employee’s behavior.”21 It is no surprise that employers are frustrated by this mushy, fact-driven standard that provides them with no clear guidance.  Adding fuel to the fire is that employees and employers often have distinctly different ideas about what is reasonable, particularly with regard to issues that can be very emotionally charged for the employee.  Employees typically view an employer’s adverse stance on an accommodation issue as an assault on their faith.  But wait, there’s more.

As described in the Manual, the EEOC has taken the position that an accommodation is not “reasonable” if it merely lessens rather than eliminates the conflict between religion and work (assuming the conflict would not impose undue hardship in the first place).22  However, the 8th Circuit Court of Appeals subscribes to a different view.

In Sturgill v. UPS, the court rejected a jury instruction that described an accommodation as reasonable “if it eliminates the conflict between [employee]’s religious beliefs and [employer]’s work requirements.”23 The court explained, “reasonable depends on the totality of the circumstances and therefore might, or might not, require elimination of a particular, fact-specific conflict.”  According to the court, requiring the elimination of conflict, as the plaintiff demanded, is inconsistent with the intended purpose of Title VII’s reasonable accommodation provisions which are designed to foster “bilateral cooperation” to resolve work-religion conflicts.  The employer must work in good faith to engage in an interactive discussion with the employee.  Under the 8th Circuit standard, the resulting accommodation decision should determine whether the company can offer a reasonable accommodation that will either eliminate or minimize the work-religion conflict identified by the employee.

At first blush, this may seem like a minor issue, but it is not.  Outright elimination of conflict between the religious belief and the work rule is a far more stringent obligation upon the employer and does not fully recognize the efforts an employer makes to strike a balance between the religious beliefs and its business requirements.  Certainly, the 8th Circuit’s standard is more employer-friendly than the EEOC’s position.  What you can be sure of here, however, is further litigation on this subject.

Another difficulty for an employer, as highlighted by the Manual, is the EEOC’s presumption that “the infrequent payment of premium wages for a substitute or the payment of premium wages [including overtime] while more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”24 Many employers would certainly take the position that the payment of overtime, even on a temporary basis, is more than “de minimis.” This is all the more true when one adds the employer taxes and the fringe benefit implications associated with overtime, which represent the many hidden costs behind an employee’s rate of pay.  In these economic times, the EEOC’s position is no doubt of concern to employers.

The Compliance Manual is certainly a useful resource for employers and employment law attorneys.  The guidelines are supported by numerous case citations, hypotheticals, and best practices advice.  For better or for worse, the Manual also makes clear that accommodation of employees’ religious beliefs is far from straightforward, given the fact-intensive nature of the inquiry.  What is more, the legal standards are not fully aligned as between the EEOC and the courts.  But, that’s what makes this even more fun, right?

Accommodation or No?
A sampling of some of the more recent (and interesting) court decisions involving religious accommodation further demonstrates the difficulties encountered by employers when dealing with religion in the workplace.  For example, let’s assume you are the owner of a franchise restaurant.  You tout your business as being family-friendly and you take pains to ensure that your employees portray a wholesome image by maintaining a clean-cut grooming and dress policy.  You have an employee who refuses to cover Sanskrit-scripture tattoos on his wrists on the basis that his religion, Kemetic Orthodox Faith, prohibits him from strictly complying with the policy.  You take the position that in order to maintain your image, the employee must cover the tattoos while working.  That sounds pretty reasonable, right?  Wrong.  The court denies your motion for summary judgment because you could not prove undue hardship.  The court rejects your argument that the display of the employee’s tattoos would negatively impact your image and offend your customers.  Despite your attorneys’ best efforts, the court finds that you failed to provide verifiable, concrete evidence to demonstrate that your concerns were real, as opposed to being merely speculative or hypothetical.25

After settling the tattoo-guy case, you now have an issue with an employee who is refusing to sing “Happy Birthday” to customers, a requirement for all employees on duty.  The employee tells you that because she is a Jehovah’s Witness she is forbidden from celebrating holidays so, no dice on the singing.  If you grant an exception to this employee, you know that other employees: (a) are going to scream “foul” because they have to sing; and (b) are going to tell you that they are running off to become Jehovah’s Witnesses and thus, no singing for them either.  As the owner of the business, you have some pretty legitimate concerns here.  However, if you stick to your guns and refuse an exception to your current Jehovah’s Witness, you will be on the tail end of another lawsuit.  Relying onEEOC v. Razzoo’s,26 the EEOC would likely take the position that your restaurant violated Title VII by failing to provide an exception to the policy for this employee because you have a sufficient number of employees who are available to sing on any given day.  Another tough day in the restaurant business.

As a result of the above, you sell your restaurant, go back to school, and are hired as the administrator of a hospital.  You become aware of an employee of the Muslim faith who is engaging in ablution, a ceremonial practice which requires her to wash her feet, hands, and forehead.  The problem is that the employee is doing her ablutions in patient rooms and in shower areas.  You take the position that the employee’s use of a patient shower area, for any reason, is inappropriate and in direct violation of policy.  As an accommodation, you offer to allow the employee to use a sink in a restroom in the basement area of the hospital.  The employee sues you for failing to accommodate her religious beliefs.  Easy motion for summary judgment for the employer, right?  Wrong again.  Much to your dismay, the court denies your motion because the record was not sufficiently developed to establish whether the employer made a reasonable accommodation of the employee’s practice of ablution.  While the record reflects that the employee previously performed ablution in public restrooms the employer made available to her, the record also contains evidence that this venue was ill-suited for the employee’s needs (i.e. the employee testified in her deposition that the sinks were too high to wash her feet).  Thus, the court cannot determine whether, as a matter of law, the hospital made a reasonable accommodation of the employee’s religious practices.27

Downtrodden, you leave the healthcare industry, go to law school, and become a lawyer.  Your first case involves the defense of an auto service shop that maintains a policy requiring all employees with customer contact to be clean-shaven and to keep their hair clean, combed, and neatly trimmed.  One of the lube technicians refuses to shave or cut his hair because of his Rastafarian religious beliefs.  When the employee informed your client that he would not shave due to his religious beliefs, his work was restricted to the lower bay; an area of the shop that was cold, had no customer contact, and where he was often assigned to work alone.  On behalf of the service shop, you move for summary judgment.  The court grants your motion, holding that the sole accommodation plaintiff was seeking, a blanket exemption from the employer’s appearance policy, constitutes an undue hardship on the employer.28  Congratulations.  Well, sort of.

Unfortunately for your client (and you), the Massachusetts Supreme Judicial Court rules on the employee’s claim for religious discrimination under state law.  The court holds that it is not an “undue hardship” for an employer to provide an exemption from a grooming policy based on an employee’s religious beliefs.  In reaching this conclusion, the court cites favorably the EEOC’s new Compliance Manual to support its conclusion that an exemption from a grooming policy is not an undue hardship as a matter of law and that image-related justifications for denying reasonable accommodations may rise to the level of religious discrimination.29  So much for your career as a lawyer, but there’s always the circus!

Notes
1 Martha McMurry, “Minnesota’s Nonwhite and Latino Populations, 2007,” Population Notes (Minn. State Demographic Ctr., St. Paul, Minn.), Dec. 2008, at 1, available at
http://www.demography.state.mn.us/documents/MinnesotasNonwhiteandLatinoPopulations2007.pdf.
Id.
3 Roger Yu, “Airport Check-in: Fare refusals in Minnesota,” USAToday, Sept. 18, 2006.
4 Press Release, The U.S. Equal Employment Opportunity Commission, “Gold’n Plump and the Work Connection Settle Suits by EEOC For Religious Discrimination” (Nov. 11, 2008), available athttp://www.eeoc.gov/press/11-12-08.html.
EEOC v. Mesaba Airlines, No. 08-5308 (D. Minn. Sept. 30, 2008).
6 42 U.S.C. §2000e-2(a) (2008).
7 42 U.S.C. §2000e-(j) (2008).
8 390 F.3d 126 (1st Cir. 2004).
9 42 U.S.C. §2000e-1(a) (2008).
10 577 F. Supp. 1196 (N.D. Tex. 1983).
11 42 U.S.C. §2000e (2008).
12 Dewey v. Reynolds Metals Co., 429 F.2d 324, 331 n.1 (6th Cir. 1970), aff’d by an equally divided court, 402 U.S. 689 (1971) (per curium without a written opinion).
13 42 U.S.C. §2000e(J).
14 See Hardison, 432 U.S. at 84 (analyzing Title VII undue hardship); compare 42 U.S.C. §12111(10)(A) (defining “undue hardship” under the ADA).
15 Minn. Stat. §363A.08 subd. 2.
16 Minn. Stat. §363A.20.
17 “Making Room For Religious Differences,” The Rights Stuff (Minn. Dept. of Human Rights, St. Paul, Minn.), May-July 2004, at 5, available athttp://www.humanrights.state.mn.us/acrofiles/Feb01RS.pdf.
18 EEOC Compliance Manual, Directives Transmittal No. 915.003, Section 12, Religious Discrimination (July 22, 2008) [hereafter “CM”] available at http://www.eeoc.gov/policy/docs/religion.html.
19 General Elec. Co. v. Gilbert, 429 U.S. 125, 141-142 (1976).
20 CM at 53-54 (citations and quotations omitted).
21 “Making Room For Religious Differences,” supra note 18, at 6.
22 CM at 51-52 (citations and quotations omitted).
23 512 F.3d 1024, 1030 (8th Cir. 2008).
24 CM at 58-59 (citations and quotations omitted).
25 See, e.g., Press Release, The U.S. Equal Employment Opportunity Commission, Burger Chain to Pay $150,000 to Resolve EEOC Religious Discrimination Suit (Sept. 15, 2005), available athttp://www.eeoc.gov/press/9-16-05.html.
26 No. 3:06-CV-1781-L (N.D. Tex., June 18, 2007).
27 Tyson v. Clarian Health Partners, Inc., No. 1:02-CV-01888, 2004 WL 1629538 (S.D. Ind. June 17, 2004).
28 Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7 (D. Mass. 2006).
29 Brown v. F.L. Roberts & Co., Inc., 896 N.E.2d 1279 (Mass. 2008).



The authors would like to acknowledge Grant Collins, a law student at the University of Minnesota and a law clerk at the Felhaber firm, for his excellent research assistance in preparing this article.

 


DANIEL R. KELLY represents businesses and individuals in commercial and civil litigation, employment matters, and provides general business law advice. He has litigated cases involving contracts, securities, employment law, trade dress, commercial and real estate disputes.

BRIAN BENKSTEIN
 is an employment and labor law attorney who focuses his practice on management-side representation. Brian represents clients involving matters that stem from employment and labor laws and he defends claims filed against employers with state and federal administrative agencies, and in the Minnesota state and federal courts.

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