Thursday, November 18, 2021
Adriana Chernow Staff Reporter (2021 – 2022)
Covid-19, Vaccines, Mandates, Exceptions — we have been hearing these buzzwords all over the news and social media very frequently lately. We hear about how they are impacting employers and employees alike. We also hear about exemptions for these mandates. One of the exemptions is the religious exemption. But what exactly is it?
What is the religious exemption? Title VII of the Civil Rights Act of 1964 states that an employer may not discriminate against an employee because of race, color, religion, sex, or national origin. An employee can file a religious exemption when the employee’s religion conflicts with the employee’s work tasks, requirements, or environment.¹ If an employee files for a religious exemption due to a religious belief, the law requires that an employer provide a reasonable accommodation for the request if the accommodation does not cause the employer undue hardship.² But what is a religious belief? The Supreme Court in 1965 answered that question and stated that the test is “whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.”³ Courts have further defined a religious belief to be a belief that is sincerely held.⁴ The sincerely held religious belief must answer a fundamental life question, and it cannot just be a political or economic belief, a social philosophy, or merely a personal preference.⁵
Is an employer required to accommodate a religious belief? An employer must provide a reasonable accommodation, unless it poses undue hardship on the employer.⁶ A reasonable accommodation is an adjustment to the employee’s work requirement or environment to allow the employee to practice his or her religious belief.⁷ A reasonable accommodation must eliminate the conflict between the work requirement and the religious belief, not just merely reduce the conflict.⁸ It must be continuous and not just temporary.⁹ Examples of accommodations include scheduling changes, shift changes, job reassignments, working remotely, and modifications to workplace practices, policies and procedures.¹⁰
What constitutes an undue hardship on the employer? An employer is not required to accommodate an employee's religious beliefs if doing so imposes an undue burden on the employer.¹¹ An undue hardship exists where an employer is required to bear “more than a de minimis” or trivial cost.¹² For example, if an employee files for a religious exemption, stating that he cannot work on Sabbaths, an employer might be able to deny the exemption if the employer has to pay another employee overtime to cover the Sabbath shift, thus causing the employer to bear more than a “de minimis” cost for the accommodation.¹³ But, if the employees swap shifts with another employee with no overtime, then it is not an undue burden for the employer, and the employer should give the accommodation.¹⁴
The Equal Employment Opportunity Commission established the following factors that an employer should consider when denying a religious accommodation: (1) the accommodation is too costly, (2) the accommodation would decrease workplace efficiency, (3) the accommodation infringes on the rights of other employees, (4) the accommodation requires other employees to do more than their share of burdensome work, (5) the accommodation conflicts with another law or regulation, and (6) the accommodation compromises workplace safety.¹⁵ An example can be found in a case from the 3rd Circuit Court of Appeals where an employer denied its employees a religious exemption based on workplace safety.¹⁶ In that case, female employees at a correctional facility wanted to wear their Muslim head coverings at their jobs and sought a religious exemption when they were asked to remove them at work.¹⁷ The court held that when it weighed the religious beliefs against the safety concerns of the head coverings being used in a prison setting as weapons to choke someone, the safety concerns outweighed the religious beliefs.¹⁸ The employer’s refusal to allow the female employees to wear Muslim head coverings was allowed due to undue hardship on the employer based on workplace safety.¹⁹ Regardless, employers cannot base their undue hardship argument on coworker resentment, assumption that other employees will also want the accommodation, or administrative costs.²⁰
What do we get from all this? Employers should consider legitimate religious exemptions filed by employees and should offer alternative options and reasonable accommodations to such employees. Employees should consider submitting a religious exemption only if their religious beliefs are sincerely held and not just political opinions. These are hard times for both employers and employees alike, and we will soon get more answers as current lawsuits get decided on this topic.
¹ Questions and Answers: Religious Discrimination in the Workplace, U.S. Equal Employment Opportunity Commission (July 22, 2008), https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discr.... ² Id. ³ United States v. Seeger, 380 U.S. 163 (1965). ⁴ Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013). ⁵ Michael R. Bertoncini, Y. Jed Charner and Mary M. McCudden, Religious Accommodation and Patient Safety in Healthcare Industry (Nov. 5, 2019), https://www.jacksonlewis.com/publication/religious-accommodation-and-pat.... ⁶ Id. ⁷ Id. ⁸ Id. ⁹ Id. ¹⁰ Janet Dhillon, Section 12: Religious Discrimination (Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination#h.... ¹¹ Religious Accommodation, supra note 5. ¹² Id. ¹³ Religious Discrimination, supra note 10. ¹⁴ Id. ¹⁵ Sara J. Higgins Carrie Hoffman Mark J. Neuberger, Mandated Vaccines: Denying Requests for Religious Accommodation in the Name of Safety (Aug. 30, 2021), https://www.foley.com/en/insights/publications/2021/08/ mandated-vaccines-denying-religious-accommodation. ¹⁶ E.E.O.C. v. GEO Group, Inc., 616 F.3d 265 (3d Cir. 2010). ¹⁷ Id. ¹⁸ Id. ¹⁹ Id. ²⁰ Religious Accommodation, supra note 5.