Religious Discrimination in the Workplace

In 2019, a jury awarded a terminated employee $21.5 million for her employer's failure to reasonably accommodate her religious beliefs. In that case, a hotel dishwasher asked for Sundays off to be a missionary for her church and to "honor God." Her employer permitted it for many years, then refused to reasonably accommodate her request any longer and unlawfully fired her. Federal law is clear. Employers are prohibited from discriminating against an employee based on religious beliefs and practices. Federal law also requires that employers reasonably accommodate an employee's religious beliefs.

But how does an employer's refusal to accommodate lead to legal action?

It's important to realize that religious beliefs and practices are the only area besides disability where the employer not only has an obligation not to discriminate, but also to accommodate. If an employee needs a religious accommodation, the employee requests one, and that starts an accommodation process.

So, what exactly is religious discrimination in the workplace and how can an employer practically take practical steps to avoid committing it in their place of business? This post will discuss the laws that prohibit religious discrimination, define religious discrimination, and address the employer's responsibility to reasonably accommodate an employee's request, as long as it does not create an undue hardship to the organization.

Title VII of the Civil Rights Act of 1964 and Related State Law

Title VII of the Civil Rights Act of 1963 prohibits employers from discriminating against employees and applicants based on religion. This law applies to all government employers at the federal, state, and local level, as well as private employers with at least 15 employees. In addition, Title VII requires employers to reasonably accommodate the religious beliefs and practices of employees and applicants, unless doing so would cause the employer an undue hardship.

Most states have laws that are fairly similar but often apply to a smaller number of employees.

What is Religious Discrimination?

Under Title VII, "religion" is defined broadly. It can be a recognized and traditional religion like Christianity, Judaism, Islam, Hinduism, and Bushism. But religion can also include uncommon and new beliefs that are held by only a small number of people. If the belief is sincerely held, it doesn't matter whether other people follow it or understand it. But according to the Equal Employment Opportunity Commission, the organization responsible for enforcing Title VII, a personal preference or political, social, or economic philosophy does not qualify as a religious belief. This possibly fine distinction can lead to endless arguments.

Religious discrimination in the workplace can look different depending on the situation. It includes any action made by (or permitted by) an employer that impacts employees differently because of their religion, religious beliefs, or religious practices. This could involve hiring, firing, or any other term or condition of employment. This protection extends to individuals who have no religious beliefs or practices and receive disparate treatment due to that fact as well.

Employment practices can contribute to religious discrimination in a number of ways.

• Hiring Decisions: Employers may refuse to hire individuals based on their religious beliefs, creating a barrier for qualified candidates of certain faiths.
• Promotion Criteria: Employers might refuse to promote certain people because of their religion, effectively imposing stricter promotion requirements. This is sometimes categorized in terms of "good fit."
• Work Requirements: Different work requirements or conditions might be imposed on employees because of their religious practices. This could include being unresponsive to scheduling issues. It could also include telling employees they can't speak about religion in the workplace, when other topics of conversation are permitted.
• Harassment and Hostile Environment: Sometimes there aren't specific employment actions, but the employee is mocked or otherwise harassed, without the employer engaging in proper training or disciplinary response when this happens. This could also include subjecting, or allowing others to subject, an employee to extensive and unwanted religious discussion.
• Refusal to Accommodate: Sometimes, the employee needs an accommodation that other employees aren't getting, such as the employee above who needed Sundays off. The employer must engage in the interactive process and grant accommodations that are appropriate.
• Harassment for Requesting an accommodation: Sometimes, an employee is treated negatively simply because she requested the accommodation.

This list should demonstrate that the issue is complicated. While it may be relatively simple not to use religion as a test for hiring or promotion, it may be more complicated to work out issues of speech in the workplace. What do employees have a right to say, and what might be harassment of others? What do employees have a right not to hear or not to say, even if others want them to say it? What happens when rights conflict, such as the rights of a trans person to have pronouns honored versus the rights of a religious person not to make statements they don't believe in?

How Does Religious Discrimination Affect People?

Religious discrimination, like other forms of workplace discrimination, creates stress in the workplace. The harm is primarily emotional but can lead to mental or physical health conditions. Because the perceived discrimination is often not limited to a single scheduling dispute or policy decision, employees can experience ongoing anxiety, rumination and a diminished sense of safety when they believe their faith practices have been mocked, discounted, or treated as illegitimate.

Any type of workplace discrimination also negatively affects the whole climate of the organization. It can create an environment of "everyday hostility" that can include verbal microaggressions and social exclusion. Any form of workplace discrimination may also support a climate of bullying. An unpleasant work culture in turn leads to poor job attitudes, less loyalty, and more turnover.

Reasonable Accommodation and Undue Hardship

Under Title VII, an employer has the responsibility of reasonably accommodating an employee's request based on religious beliefs or practices, as long as it does not place an undue hardship on the employer. A reasonable religious accommodation is any change in the workplace that will permit the employee to practice her religion. This could include allowing shift swaps, job reassignments, flexible scheduling, or exceptions to grooming or dress policies.

A 2023 case, Groff v. DeJoy,¹ lays out the standard for reasonable accommodations. In this case, a rural mail carrier wanted to observe Sundays as part of his religious practice. Initially, the United States Postal Service (USPS) could largely keep him off Sundays, but as Sunday package delivery expanded (hello, Amazon), he was increasingly scheduled for Sundays. He sought a religious accommodation, which he believed was not sufficiently accommodated. Eventually, he resigned and sued.

The Supreme Court held that Title VII requires an employer denying an accommodation to show that it would impose an "undue hardship." For the first time, the Court defined "undue hardship" as "substantial increased costs in relation to the conduct of its particular business." This replaced the older, minimal standard (de minimis cost). Under that standard, the U.S.P.S. lost.

Some more common religious accommodation requests include:

• An employee who seeks accommodation because of a religious belief that working on the Sabbath is prohibited;
• An employee who requests an exception to company dress policies due to religious practice (for example, a Muslim woman who wears a religious headscarf or a Jewish man who wears a yarmulke or a Sikh who carries a small ceremonial knife);
• An employee who asks for a shift change so she can attend a religious holiday service (for example, a Catholic employee who wishes to attend a Good Friday service);
• An atheist employee who wishes to be excused from prayer time at the beginning of staff meetings; or
• An employee who requests a special break schedule for religious practices (for example, a Muslim employee who asks to have time off for prayer at certain times through the day).

Whether a specific accommodation would cause an undue hardship on the employer depends on the individual circumstances of each request, and so the interactive discussion is important. This, in turn, means that the employer needs to have clear policies about discrimination, how to request accommodations, and how to file a complaint. And the employer needs to have clear processes in responding to a request for accommodations or a complaint.

How Does the Religious Discrimination Landscape Look Different for a Ministry?

Ministries are in a slightly different position when it comes to religious discrimination. First, they can constitutionally set almost any limitation of belief and practice that they want on their ministers, because of the constitutional doctrine of the ministerial exception. They also have a limited exemption under Title VII, which does "not apply" to a religious corporation, association, educational institution, or society when it comes to employing "individuals of a particular religion." This means that many faith-based employers may require shared religious beliefs or adherence as a condition of employment.

This does not mean that ministries can just ignore the issue, however. First, if an employee requests religious accommodations that don't conflict with the ministry's "particular religion," they still need to engage in an interactive discussion. Second, if the ministry has chosen to have non-religious job positions, or doesn't require adherence to a particular religion, the analysis defaults back to the normal standard.

Considering the Role of EPLI and D&O Insurance in Religious Discrimination Claims

In addition to preventing claims of discrimination with a good response, employers can protect the organization and leaders with two forms of insurance: Employment Practices Liability Insurance (EPLI) and Directors and Officers Insurance (D&O). In addition, ministries may want to consider insurance that specifically protects their religious practices.²

EPLI coverage is designed to shield business from claims related to employment practices. This can include allegations of harassment, wrongful termination, or discrimination. EPLI will cover legal defense costs as well as settlements and jury verdicts. It can be helpful to have EPLI even for frivolous claims, because it costs so much to defend a claim even through the EEOC/agency level.

D&O coverage protects company leaders such as executives and board members personally from claims of religious or other discrimination. While normally, employees only have claims against the organization and not individuals, occasionally a lawsuit expands to include individuals, usually with claims of intentional misconduct or reckless decision-making. This type of policy pays for legal defense and safeguards the personal assets of these individuals.

Conclusion

Religious discrimination in the workplace is a clear violation of federal law—it's just not always so clear when it has happened. To avoid legal liability, an employer should always treat all employees fairly, and reasonably accommodate requests based on religious beliefs or practices. In addition, employers should have a good overall risk management plan and work actively on a positive workplace culture. Much of employment law can be summed up in the Golden Rule, and a solid practice is to treat all employees in a kind and respectful way, whatever their needs and requests are. If an employer is uncertain of how to address a specific situation, the employer should consult legal counsel to ensure their actions are in compliance with federal and state law.

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¹ 600 U.S. 447 (2023).

² https://bitnerhenry.com/insurance/religious-freedom-protection-coverage/