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Q.
We know that we have to accommodate
our employees’ religious beliefs, but how far to we have to go? Do
we have to do everything the employee asks even if the request for
accommodation adversely affects our work schedules?
[Creating HR Policies or Employee Handbook?]
A. Under Title VII of the
Civil Rights Act of 1964 (Title VII), an employer must accommodate
the religious beliefs of an employee or an applicant unless it
imposes an “undue hardship” on the conduct of the employer’s
business. Examples of accommodations suggested by the Equal
Employment Opportunity Commission (EEOC) include using voluntary
substitutes, swaps, flexible schedules, lateral transfers, and
changing job assignments.
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Any accommodation
that requires more than a de minimis (i.e., nominal) cost is
considered an undue hardship by the courts. Thus, if the employer
can show that a particular accommodation will result in more than a
nominal cost or disruption to its operations, the employer does not
have to provide the accommodation. For example, one court (in
Beadle v. City of Tampa, 42 F.3d 633 (11th Cir. 1995)) determined
that removing a new employee from a rotating schedule to accommodate
his inability to work on the Sabbath created more than a de minimis
cost for the employer and therefore was not reasonable. Employers
should note that the undue hardship test for religious accommodation
under Title VII differs from the test for accommodating disabilities
under the Americans with Disabilities Act (ADA). Under the ADA, for
an employer to claim undue hardship, it must show that the
accommodation would cause a significant difficulty or expense. This
standard is clearly more difficult to meet than the de minimis
standard for religious accommodation.
Like the ADA,
however, to meet the duty to accommodate under Title VII, the
employer only has to provide an effective accommodation, not the one
preferred by the employee or applicant. According to the Supreme
Court in Ansonia Board of Education v. Philbrook, 479 U.S. 60
(1986), if the employer has reasonably accommodated an employee’s
religion, it does not have to go further to show that any of the
employee’s requested alternative accommodations would result in an
undue hardship. However,
EEOC Guidelines also require an employer
to offer the alternative that would least adversely affect the
individual’s employment opportunities.
Many employers
use paid-time off plans (or PTO plans) to accommodate employees’
religious observances. Although most courts agree that employers
are not required to provide paid days as an accommodation (the
unpaid time off is considered a reasonable accommodation), many
employers find that PTO plans give their employees the flexibility
to choose their days off. |
Personnel
Policy Service, Inc.
