Accommodating Religious Beliefs and Practices

Accommodating Religious Beliefs and Practices

December 9, 2020 / 48:52:00

Emmet Ore

Hello and welcome. Thanks for being here today, and I hope you’re doing well. My name is Emmet. I’m the marketing coordinator of activities at Avitus Group, division partner of Vensure, and I’ll be your host today. Our panelist, Robin Paggi will be talking a little bit about how to accommodate various religious beliefs and practices in your workplace holiday observances, today. There will be a Q&A session at the end. We’re going to do our best to answer all those questions, but if we don’t get to them, we’ll respond individually after the webinar concludes. As always, this webinar is brought to you by VensureHR. Vensure is the leader of 20-plus PEO partners with clients in all 50 states. Today’s agenda includes the definition of religion, religious discrimination, reasonable accommodation, examples of reasonable accommodations, how to prevent religious discrimination claims, and how to defend against those claims. And lastly, we’ll have a Q&A session. If you hear a topic you need more clarity on, feel free to submit a follow-up in the Q&A box. And I’m thrilled to have Robin Paggi here as our panelist today. She’s a seasoned human resource practitioner specializing in training on topics such as harassment prevention, communication, team building, and supervisory skills. So with that, I’ll get out of Robin’s way and hand it over to her.

Robin Paggi

Thanks, Emmet. Before we jump into the legal aspects of religion, I just want to remind everybody that December has a lot of religious holidays besides just Christmas. There is Bodhi Day, celebrated by Buddhists; Hanukkah celebrated by Jews; the Day of the Return of the Wandering Goddess, celebrated by followers of Kemetic Orthodoxy (don’t know if you’ve ever heard of that); and Yule, celebrated by Wiccans and some other neo-pagan. So, those are just a few of the celebrations of a religious nature in the month of December. Now, employers don’t need to be familiar with every type of religious celebration that their employees could possibly engage in, but they do need to be familiar with how to accommodate their employees’ religious beliefs and practices, even when the employer doesn’t believe in those religious beliefs and practices. So, let’s go to the next slide and look at the definition of religion.

First of all, now, Title VII of the Civil Rights Act is the law that pertains to religious discrimination in the workplace.
And the reason for that is because it established the first five protected classes that said that employers may not use against employees or applicants. And so, those five protected classes were race, color, religion, national origin, and sex. And so, the Equal Employment Opportunity Commission is the federal branch of the government that oversees harassment and discrimination and enforces Title VII. And they said that religion includes traditional organized religions such as Christianity, and Judaism, and Islam. So, that the big ones that most of us know about. But, it also includes uncommon or new religions. It also includes ethical or moral beliefs that are sincerely held to the degree that they are viewed as a religion. And so, it’s very broad, their definition of religion. Now, Title VII pertains to employers with 15 or more employees, so that’s a federal law. But, you need to check about your state laws as well. For example, I’m in California, and here, our Fair Employment and Housing Act, religion is a protected characteristic under that law and it pertains to employers with five or more employees. So, you really need to make sure that you know what that number is. But what Title VII does, again, is that protects applicants and employees from discrimination and harassment based upon religion, even when that religion seems irrelevant, illogical, or unreasonable to other people. And applicants and employees are also protected because they do not have a religion. So, because Title VII’s definition of religion is so broad, one of the things employers need to know is that courts typically favor in or decide in the employee’s favor. If the employee says that they have this particularly held sincerely religious belief, that seems to be good enough for a lot of courts. And so, that’s one of the reasons that employers really need to be aware of what would constitute a sincerely held religious belief under EEOC’s definition of religion to make sure that they don’t make a mistake. Now, I want to give you a couple of examples before I go into those remaining three bullet points of what courts have said sincerely held religious beliefs include. So, one court decided that the Church of Wicca is a religion and the Wicca religion believes that Halloween is a holy day, that astrology, psychic abilities, and reincarnation are valid and they have respect for all life forms. And that met Title VII’s definition of religion. Also, Universal Belief System is a religion. Now, you might have heard of the Church of Wicca before, but you might not have heard of Universal Belief System. And that’s because even though a court found this to be a valid religion, the employee who was filing suit said he didn’t know anyone other than his mother and himself that had this particular belief system. And their belief system stresses tolerance and acceptance of other people’s religious beliefs, and a court found that that met the definition of religion under Title VII. So, whether an individual’s belief meets Title VII’s definition of religion is a fact-specific inquiry that employers must address on a case- by-case basis. And this is what they need to look at these three things here.

First of all, the nature of ideas in question. And so, one of the things, I was doing harassment prevention training once and I was talking about religion being a protected characteristic and a participant said, “Well, I can say I believe in this pencil and that’s my religion.” No, that’s not correct. The ideas need to be deep, they’re questions about life. Why are we here? What is our purpose? What happens after we die? So, it’s not just a belief that I like beer. It’s a belief about deep questions that people have had probably for forever. Comprehensiveness. And so, it’s not usually just a singular belief, such as, again, beer is good, but it is a lot of beliefs that you might find in something like a Bible, or a Quran, or something like that. So, it’s deep again. And there are usually formal or external signs that people can see that you belong to a religion, such as attending services, wearing religious garb or symbols, that type of thing. So, those are the three things that employers need to look at to see if they think that they might need to accommodate somebody’s religious beliefs or practices. I would just err on the side of caution because the definition is so broad and if you can accommodate an employee, you probably should. We’ll talk about that a little bit more. Before we go on to our next slide, though, I do want to tell you about a court case.

Just because an employee sincerely believes in something doesn’t necessarily make it a religion. For example, an employee was fired for eating Kozy Kitten cat food at work, and he claimed that it was part of his religion. He was fired for it. And so, he tried to file suit against his employer and he would go to the EEOC and try to file a complaint. And the EEOC didn’t do anything about it, which is their job. They’re supposed to pursue complaints about discrimination and harassment, and they wouldn’t do it because they felt that it wasn’t a religion. And so, then he sued the EEOC for not pursuing his religious discrimination claims against his former employer. And the court that heard that case decided in favor of the EEOC, saying that the employee’s belief was a mere personal preference and not a religion. So, even though the definition of religion is broad and sincerely held is a very important part of it, it doesn’t mean that anything that somebody sincerely holds is necessarily true. Okay, one more thing before we move on. The law protects applicants and employees from discrimination because of their lack of religious beliefs as well. For example, in the case of Noyes versus Kelly Services, Noyse claimed that she was denied a promotion because she did not share the same religious belief as her supervisor. And the coworker who received the promotion belonged to the same church as the supervisor. Now, Noyse had worked at Kelly Services six years longer than the coworker, and she held a master’s degree in business administration and the coworker did not. Additionally, the employee pointed out that four out of the five most recent promotions were given to coworkers who belong to the same church as the supervisor. That court case was up in Sacramento and that jury awarded her $6.5 million for religious discrimination. Alright. So, let’s go on to our next slide and talk about religious discrimination and what all that means.

Alright. So, discrimination is treating people differently, usually adversely, because of being in a protected class. And remember, religion is just one of the protected classes and so unequal or disparate treatment, is what it’s called. So, treating applicants or employees unfavorably because of their religious beliefs, or treating somewhat differently because that person is married to or associated with a person of a particular religion, or because of a connection with a religious organization or group. So, you see that the employee themselves, or the applicant themselves, does not necessarily have to have that religious belief. It’s also imposing stricter or different requirements on expression of a particular religion. So, again, treating people differently, for example, allowing one employee to keep a Bible on his desk while telling another to keep his copy of the Quran out of sight. So, treating people differently because of religion, usually adverse, making employment decisions, hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, any kind of employment decisions. Making them because of religious beliefs, selecting one applicant over another because of the applicant’s religion, excluding an applicant because he or she may need an accommodation such as time off for religious purposes. And then there’s harassment.

Harassment is actually a form of discrimination, and employers have to prevent coworkers, and customers, and vendors, service providers…anyone from harassing their employees. So, harassment can include offensive remarks about a person’s religious beliefs or practices that they engage in. The law doesn’t prohibit simple teasing or offhand comments or isolated incidents that aren’t very serious, although you don’t want to allow those. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment, or when it does result in an adverse employment decision, such as the employee being fired or demoted. And again, the harasser can be the victim’s supervisor, a supervisor in another area, a coworker, someone who’s not even employed, such as a customer or a service provider, or a vendor. Additionally, part of discrimination is segregation, such as assigning an employee to a non-customer contact position. And so, making employees work in the back so customers can’t see them because of what they might wear. And I’ll tell you about a court case a little bit later on that happened as far as segregation is concerned. And then finally, under discrimination, it is discriminatory to fail to reasonably accommodate an employee’s religious beliefs or practices, even when you think those beliefs or practices are silly. So, let me tell you about a court case and then we’ll go on to talk more about accommodation. This particular court case was called Mark of the Beast in the media that covered it. In West Virginia, at a mining company, an employee had worked there for 35 years and he would clock in and out on a regular time clock, every time he went to work—and he did that for 35 years. And one day he showed up and they had a new time clock, new timekeeping device, and it was a hand scanner. Now, when I was a manager of a law firm, I voted for us to get a hand scanner that employees could clock in and out of because what they were doing was using a card that had a sensor in it and they would swipe the card and that would clock them in and out, but they frequently forgot the card. And so, they just write in their time. And amazingly, they always started work at 8:00 and left for lunch at 12:00 and came back at 1:00 and left at 5:00, et cetera. And that’s not really accurate timekeeping. And so, I’m the one who made the decision, “Let’s get a hand scanner.” Now, this was a decade ago and I thought it was pretty cool, it’s kind of James Bond. You just put your hand in there, makes an imprint of it, and every day you just go in and put your hand in there and it raised your hand and you’re clocked in. But the employees didn’t like it, I’ll tell you that. So anyway, this employee working at the mining company went to work and there was this hand scanner and his employer told him that it would take an imprint of his hand. And then every day he would go and clock in and out of it, just like I described. And he told his employer that he could not do that, that he had been warned by his pastor that devices such as that would give him the Mark of the Beast. Now, if you’re not familiar with the Mark of the Beast, read the Book of Revelation in the New Testament of the Bible and the Mark of the Beast is something you don’t want to have. I’ll just tell you that. So, he explained that to his employer and his employer allegedly said, “That’s silly, put your hand in there, or else you’re fired.” And so, the employee quit and he went to the EEOC who then sued the employer and got the employee $500,000. So, it’s really important that when people have sincerely held religious beliefs, and practices, and they explain those things to you, you don’t have to believe them, if you can accommodate them, you need to accommodate them. And it would have been an easy accommodation. All the employer needed to do was have the employee clock in and out like he had for the last 35 years. So, let’s talk about accommodations next slide.

Alright, well, what is a reasonable accommodation, according to the EEOC? And remember, when employees or applicants are filing a claim of religious discrimination or harassment, it is with the EEOC, or perhaps, with the State Department. And so, that’s why we care so much what the EEOC says about all of this. So, they say that an employer has an affirmative duty to reasonably accommodate so long as doing so doesn’t result in an undue hardship. And I’ll give you some examples of what was considered an undue hardship and what was not. And what an accommodation does is it eliminates the conflict between employment requirements and religious practices. So, let me give you an example, and this was a real-life one. A fire department had the practice of, in the morning who was ever on shift, and there were usually three firefighters on shift, that they would all go out and they would raise the flag on the flagpole. And this was the American flag and they would take turns doing it. So, that was fair. And it’s just a matter of putting the flag on the cord, and then raising it, and that was it. So, not that big of a deal. And they had a situation where one firefighter said, “I cannot do that because of my religion. We do not salute the flag. We just don’t observe it. And so, I can go out and I can stand there with everybody else. I just can’t put the flag on the cord and send it up.” And so, allowing that firefighter to not raise the flag would have eliminated the conflict between his employment requirement and his religious beliefs and practices. And so, that’s an easy one to do, although even though it seems easy, I have given that example and training numerous times and people are upset by that. Well, why should he get out of it, and what’s the big deal? Well, again, if it’s easy to accommodate, the employer needs to accommodate. Now, there are some exceptions, and I’ll talk about those in just a moment now. Again, all aspects of religious beliefs, observance, and practice. And so, let me give you an example of religious practice. One of the things that is a practice is observing the Sabbath or other religious holy days, and a reasonable accommodation would be time off work to observe the Sabbath or a holy day if it’s reasonable. Also, a practice would be grooming practices, such as wearing a particular head covering or other religious dress, wearing certain hairstyles or facial hair, being allowed to not have to wear something such as pants. So, there is a religion where the women do not wear pants and so employers, if they can accommodate, they need to and practices such as prayer, proselytizing, or other forms of religious expression. Now, I am not a football fan, but a couple of years ago, something happened at an NFL game that got my attention. And this is a game between Kansas City Chiefs and New England Patriots, and the Chiefs’ safety Husain Abdullah intercepted a pass and returned it for a touchdown. And when he made the touchdown, he dropped to his knees and he lowered his head to the ground in prayer. A referee threw a flag and said it was unsportsmanlike behavior. Well, the referee probably did not know that it was actually a form of religious expression which is allowed in the NFL just like every other workplace. I mean, Tim Tebow is allowed to express his religion when he makes a touchdown. And so, why was Abdullah not

allowed to express his religious expression? So, the referee was told that that is a form of religious expression. An NFL spokesperson later told the press that Abdullah should not have been penalized for it. And so, that’s why we have to be aware of different religious expressions and investigate before we take action. Here’s some other practices. An employee who needs a quiet place to pray during lunch breaks and requests an available conference room to do so. So, that would not be an undue hardship if the conference room is empty—they get to pray. But an employee who requests an assembly line be shut down multiple times a day in order to pray probably would be an undue hardship. Out proselytizing may include engaging in one-on-one discussions about religious beliefs, distributing literature, or using particular phrases such as, “God bless you.” And according to the EEOC, employers must allow employees to engage in these types of activities unless doing so adversely affects coworkers, customers, or business operations. For example, employees who spend

an excessive amount of time talking about their religious beliefs may be told to limit that time. But, employees who spend too much time talking about anything can be told the same thing. Employees who make certain coworkers uncomfortable with the religious talk may be told to stop talking to those coworkers about religion. Employees who express religious beliefs that could be perceived as harassing, for example, telling homosexual coworkers that they are sinners, that those employees may be told to cease and desist. And employees who talk to customers about their religious beliefs may be told to stop if it disrupts business or if the customers would unreasonably believe that the employee’s message is really the employer’s message. So, you can see in some cases you must allow, but in other cases, you don’t have to allow. And that’s why it’s really important to know all of this. So, once again, only sincerely held religious beliefs are what need to be considered. But, determining whether an individual’s beliefs are sincerely held is tricky. And so, again, and that’s why you need to know what the EEOC says religion is. So, the question of sincerity is fundamental. Because if the individual cannot show that the beliefs are sincerely held, the employer is not required to accommodate. And courts have repeatedly held that Title VII does not require an employer to accommodate the request that’s just based on a personal preference and not on a religious belief. So, it’s acceptable for an employer to question the validity or the sincerity of the individual’s religious beliefs by showing the individual has acted in a manner that’s different from what they believed in the past. Now, one of the things that is important and that comes up in training quite a bit is, “Well, I hired an employee and when I hired him or her, they said that they could work any day. But now they come to me and they say that they got religion and they can’t work on the Sabbath.” So, I don’t have to accommodate because they said that they could work any day, and now all of a sudden they got religion. Well, that’s not true. Employees or people get religion overnight. And so, people go to some kind of service or something and something hits them and now they’re religious. And I know that happens because something similar happened to me, not about religion, although it’s kind of religion. I’m a vegetarian now. I wasn’t always a vegetarian, but about ten years ago I was reading a book and whatever I read in it, just something clicked in my brain and I became a vegetarian at that moment. Now, unfortunately, my husband was cooking dinner and he was cooking some kind of meat and he came to get me and he said, “Dinner’s ready.” And I said, “I’m a vegetarian now.” And he said, “Of course you are.” So, I figured it would last a couple of months or something. It’s lasted over a decade and it happened in one instant. And so, those things do happen when it comes to religion. And just because you hired somebody who was not religious, and now all of a sudden they’re religious, doesn’t mean you don’t have to accommodate. So, let’s talk about accommodations a little bit more by going to the next slide.

So, here are some examples of what the EEOC thinks reasonable accommodations are. Scheduling changes. So, for example, allowing an employee to come to work early in order to leave early to attend religious services. Shift swaps. Allowing an employee to swap shifts with another employee so they can avoid working on a holy day. Changing job tasks such as the example that I gave you with raising the American flag, using the workplace for religious observance, such as allowing employees to use a quiet area such as a conference room to pray during a break.

Making exceptions to dress standards and grooming policies to take into account religious practices. Now, one of the things is that employees must notify employers of their religious beliefs and practices in order to get the accommodation. The employer can’t fix what the employer doesn’t know about, and notice is a crucial element of an employer’s obligation to provide a religious accommodation because obligation doesn’t arise until the employee says something. And the burden is generally on the employee or applicant to inform the employer of the religious nature of the conflict with something that they’re required to do for work and their need for an accommodation. However, they don’t need to say
the word accommodation. So, knowledge that an individual has strong religious beliefs is generally not enough to put an employer on notice of the individual’s need for an accommodation, so the employee or applicant must speak up, but them speaking up only needs to be minimal. As I said, they don’t need to make a declaration that they need an accommodation. Generally, to give the employer notice an individual only needs to provide enough information about his or her religious beliefs so the employer understands the nature of the conflict between the individual’s religion and the employer’s job requirements. However, with respect to a job applicant’s disparate treatment claim, the U.S. Supreme Court held that an employer that acts with motive to try to avoid a suspected accommodation is not going to help the employer. So, let me explain what happened here. You might have heard of this claim that happened a couple of years ago. An applicant went to Abercrombie and Fitch and applied for a job and the applicant was wearing a hijab, which is what Muslim women wear on their heads. Abercrombie and Fitch has a no hats policy, or at least they did at this time, and they weren’t sure what to do about the situation. The employee wears a headscarf. They have a no hats policy. And so, even though the applicant didn’t say anything about wearing the headscarf, needing an accommodation, nothing, they suspected that she would need an accommodation. And so, they failed to hire her. And that lawsuit went all the way to the Supreme Court. So, the court made clear that a job applicant will prevail on a disparate treatment claim if his or her need for an accommodation was a motivating factor in the employer’s refusal to hire the applicant, regardless of whether the employer had actual knowledge of the employee’s need for an accommodation. So, that was a little bit tricky. A couple more things before we move on. The failure to comply with the employer’s notice is no defense. And so, if an employer says, “Well, you have to do this and you have to do that in order to let me know that you needed an accommodation.” The EEOC says, “We don’t care what your notice requirements are as long as the applicant or employee meets our requirements.” And if accommodation would impose more than a minimal cost, it is an undue hardship. And so, that’s one of the things, we’ve seen the term undue hardship before with ADA compliance and the standard for whether something is an undue hardship for a religious accommodation is much lower. And so, if it is anything more than—if the accommodation is only minimal—then it is not
an undue hardship. So, two similar cases before we go on demonstrate what can be considered to be a reasonable accommodation in one situation and considered an undue hardship and another. So, in Alamo Rental Car versus EEOC, the employee was a rental agent and she was allowed for many years to wear a hijab at work during the holy month of Ramadan. After 9/11, she was told she could wear her hijab, but not at the front counter as it might offend customers. The employee continued to wear her hijab at the front counter anyway, and she was terminated, and she sued and she won. The court determined that the company had a duty to accommodate the employee’s religious practice and couldn’t rely on how it thought its customers might react to her hijab to determine that the accommodation was unreasonable. So, in the case of Webb vs. City vs., excuse me, Webb vs. the city of Philadelphia, a Muslim female police officer’s request to wear a hijab over her uniform was denied, and then she was disciplined for wearing it anyway. So, exact same situation. She sued, but she lost because the court agreed with the police commissioner’s explanation that it is critically important to promote the image of a disciplined, identifiable, and impartial police force by maintaining the department’s uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias, and that the accommodation would impose more than a minimal cost to the employer. So, you can see very similar situations, and in one a court says it is an undue hardship, and in another it says it is not. And so, that’s why we need to be more aware of what that undue hardship looks like. So, let’s continue on and I’ll tell you more about factors considered in determining undue hardship.

First of all, what can be considered is the size of the employer with respect to the number of employees size and budget. And so, the bigger the organization, the more they are expected to accommodate. The type of the employer’s operation, the nature and cost of the accommodation, whether the employee gave reasonable notice to the employer, the existence of any other reasonable alternative, and how it will affect coworkers. Alright. So, let’s go ahead and go on now and talk about how to prevent religious discrimination claims.

First of all, having a formal policy against discrimination of all forms, not just religion, is very important. And one of the reasons that policies are so important, I mean, in some places they’re required by law. For example, again, I’m in California, and employers here are required by law to have an anti-harassment and discrimination policy. But one of the reasons
that policies are good to have in place, whether you’re required to or not, is that it communicates to employees what their rights are and what their responsibilities are, as well as what the employer’s rights and responsibilities are. Now, I’m doing a harassment investigation right now, and that’s one of the things that I ask the employer for, is the employee handbook
or the policy against harassment in the workplace. And one of the reasons for that is because I am not trying to determine whether somebody broke the law and the investigation. I’m trying to determine whether somebody violated their company policy. And if you don’t have a company policy, that’s very difficult to do. So, having a policy in place is really important. Training supervisors is critical. Now, again, in California, our supervisors here are required by law to go through two
hours of anti-harassment and discrimination training if they work for an employer with five or more employees. But, we’re different than most every other state. Most states do not require any kind of training for anybody in the workplace, but
it’s a good idea to train supervisors. And one of the reasons for that is because supervisors typically are the ones making decisions about whether people get time off work, or if they can take time out to pray, or all of that kind of stuff. And if supervisors don’t know about all of this, then they end up making bad decisions that end up costing the employer money. And so, it’s imperative that anybody who is making employment decisions about anyone else understand all of these things because employees will ask for an accommodation. And if it’s not given, then the employer can get sued, training HR professionals at the very least. And hopefully, everybody has an HR professional on staff or on call, especially with all the new employment laws that go into effect here in California on January 1st. We’ve got at least 20 new employment laws that are going into effect and are going to change things for even small business owners. And if they don’t know about
it, then they’re going to be out of luck if they get a claim filed against them, because ignorance of the law is no defense. So, it’s imperative that HR professionals know all of the employment laws, especially ones that deal with discrimination. Tell employees who to report to is really important. And they’ve got to be able to report to a variety of people, not just one person. So, I did anti-harassment training earlier this week, and that’s one of the things that I asked. I had two employers in the training. And I said, “Who can your employees go to, to file a complaint?” Well, they file a complaint with me. “Okay, and who else?” No one, just me. “But what happens if you’re the one they want to complain about, then what do they do?” Well, they don’t do anything. “Well, that’s a problem.” And so, you need to have a variety of people that people can complain to about harassment, especially so that they don’t want to have to go to the government to file their complaint because there’s no one at work that they can file it to. So, telling employees who they can report to and it needs to be a variety of people investigating all claims. And it’s important that you have somebody doing an investigation who actually has some experience in it or has gone through some training or something because if you do a poor job in the investigation, it can be a real problem for you. And so, taking immediate, remedial action is also important. If someone did harass somebody because of their religion or if discrimination did take place, it’s very important that that person is at least counseled, if not written up or even terminated, depending upon the seriousness of the offense. And so, all of these things make it look like employers want to have a harassment and discrimination-free work environment, and that’s what they need to do. And so, when you do those things, that demonstrates that you care about it. Okay, let’s move on.

And so, finally, if you do get hit with a religious discrimination claim, how do you defend yourself? So, there is a two-part burden-shifting test. And so, the first part is in the employee’s responsibility to show that religious discrimination did happen. So, it’s called prima facie case because that means on its face. And so, the employee has to prove that they’re sincerely held religious belief and practice that conflicted with a work duty. And the employee informed their employer of the belief and the conflict and the belief conflicted with an employment requirement or the employer took adverse action against the employee because of the conflict. So, the burden of proof at the beginning is on the employee. And once again, they have to prove that they have a religious belief that there was a conflict, that they let their employer know and nothing happened, or else the employer took adverse action. So, if they can prove all of that, then the burden shifts to the employer. And so, let’s go to the next slide and see what the employer has to do.

The employer has to demonstrate that one or more elements of the employee’s case isn’t true, or that the employer did offer a reasonable accommodation, or that the employer could not accommodate the belief or practice without undue hardship. And again, they have to demonstrate what that undue hardship was. So, if you do get hit with a religious claim, don’t just rely upon these two slides to help you out. Hopefully, again, you’ve got an HR professional on hand or at least on call who can help you with all of this, because one of the things most of the people who are trying to run their business aren’t aware of all of these things. Now, I do encourage you to go to the EEOC website and download information about all of the things that I’ve talked to you about, because that can be the first step in continuing your education. But if you do get hit with a claim, you might want some help in trying to defend yourself. So religion or the lack thereof is a serious subject for many people. And federal law and some state laws require that employers take it seriously as well. And hopefully, this will help you do that. Alright. That’s all I have for you. Do you have any questions for me?

Emmet Ore

Perfect. Alright, looks like we do have some questions for you, Robin. Well, let’s start at the top here. So, the first one here is, “We had a Thanksgiving gathering virtually. The intent was to do some team building. We screwed up by labeling it Thanksgiving. An employee told us he could not join. That was fine. After the gathering, he told us the reason he would not join Thanksgiving is a Christian holiday. Could we have given it a different title? Employee said no because he knew what we were doing and relabeling would not solve the issue. It is okay that he did not join, but we really wanted to build a really wanted team-building experience. What might you do in this scenario?”

Robin Paggi

Well, that’s why you really need to be informed about religion and all of that kind of stuff, because the employee is incorrect. Thanksgiving is not a Christian tradition. It is an American, a federal holiday is what it is. And so, that’s the thing is that you have employees who have a little bit of information and then they try to influence you as a result of that, a little bit of information and you’ve got to be more informed than they are. So, that would be the first thing is that I would have told the employer I mean, I would have looked up and seen what the definition of Thanksgiving is. And it’s not a Christian celebration. So, so that’s what I would have done from the get-go is make sure that the employee was aware of exactly what the situation was and that might have changed the game on that.

Emmet Ore

Okay. Will you clarify whether “Praise the Lord” and “Hallelujah” when hearing good news in the workplace is okay or is that considered proselytizing?

Robin Paggi

Well, the EEOC says that you that employers must allow employees to say things like that as long as it doesn’t interfere with business operations, as long as people understand that it’s coming from the employee personally and not on behalf of the employer. As long as it’s not offending other employees. Now to offend other employees, you’ve got to go pretty
far. So, a court case included an employer was okay to tell an employee they could not wear a religious pin. But the pin was a graphic anti-abortion picture. And so, they said that their religion required them to wear this and it offended other employees. And so, the employer said no and the employee sued and the court found in favor of the employer. So, just because an employee’s offended doesn’t necessarily mean that the employee can’t engage in that offensive behavior.
So, again, the big caveats are whether it’s interrupting business operations and whether people think that the employee is saying it on behalf of the employer. But, I will tell you that an employee who had a signature line that said, “God bless you,” and the employer wanted that employee to remove that that employee won in her court case because it didn’t appear to be on behalf of the employer.

Emmet Ore

Got it. okay, this question, I’m not really sure what slide it was referring to here, but I’ll ask it anyway and maybe you can figure that out. What if the employer is accommodating a supervisor to have every Sunday off and hires a second supervisor specifically to cover duties on Sundays. Then the second supervisor now requires Sundays off too as a religious accommodation. It would be a hardship to hire a third supervisor. What should the employer do in this case?

Robin Paggi

Yeah, and that’s one of the things when you’re looking at hiring people, especially to work specific days that you have to take into account. So, just with those details by itself, if the second supervisor was hired specifically to work on the Sabbath to cover for the other supervisor, and now they can’t do it, hiring a third, I would say, would be an undue hardship and the employer would not be required to do it. But one of the things that happens sometimes, and this is really important when you’re aware that applicants might need time off, such as a Saturday or Sunday. If you are hiring and you have to say you’re open 24/7. So, you’re open every single day and you have a practice of making new hires work on the weekends and somebody tells you that they can’t work on a Saturday or Sunday, then you still need to hire them. Don’t prevent that from, or don’t allow that to, prevent you from hiring them because you’re open 24/7. And so, they can work any of those other days besides that one particular day, even though it’s your practice to only hire people to or that new people hired work on weekends. However, if you are hiring somebody only to work on the weekend and then they can’t work on the weekend, well, then no, they can’t meet the obligations of the job. And so, those are the things that you have to look at when we were talking about reasonable accommodations. Again, that’s some of the things talking about is the size of the employer with respect to the number of employees. So, is it easy for other people to cover shifts that people can’t cover the type of the employer’s operation, the cost of the accommodation, any other alternative that might be available? So, those are all things that employers need to take into consideration when determining is something of an undue hardship or not.

Emmet Ore

Got it. Thank you. Okay, what are the limits of employees’ religious expression at work?

Robin Paggi

Yeah, and that kind of covered that again, but there’s no specific amount like you get to say, “God bless you,” three
times and that’s it. So, again, the limits go back to and let me find that information because I said it and it has really good parameters. Proselytizing could be one-on-one discussions about religious beliefs, distributing literature, or using a particular religious phrase such as, “God bless you.” But, if somebody is spending more time talking about their religious beliefs and practices or if they have things up on the wall. So, for example, one employee had a big poster up in his office that talked about homosexuality being a sin. Well, you don’t get to do that at work. And so, so hopefully that demonstrates some of the limitations when it begins to interfere with business being done, when it looks like it’s the employer message as opposed to the employee’s message, when it’s really offensive to coworkers, those are the limits.

Emmet Ore

I see, okay. Looks like that is it for the questions today. If anyone has any other questions, you can submit those to [email protected]. Thanks, everyone for being here, and thanks, Robin, for your time today. Appreciate it. And we’ll see you all next time.