October 16, 2013 Articles

Recent Developments in Religious Accommodation in the Workplace

Claims of failure to accommodate a sincerely held religious belief are on the rise.

By Tamara R. Jones and Elizabeth A. Erickson – October 16, 2013

Religious-discrimination claims have proliferated in recent years. Statistics released by the Equal Employment Opportunity Commission (EEOC) indicate that 3,811 religious-discrimination charges were filed in 2012—almost twice the number of such charges filed in 2000 (1,939). Likewise, recent years have brought a flurry of lawsuits addressing Title VII religious-discrimination claims, particularly those involving alleged failure to accommodate an employee’s or applicant’s sincerely held religious belief.

Overview of Federal Law of Religious Accommodation

Title VII of the Civil Rights Act of 1964 prohibits intentional discrimination on the basis of religion and requires an employer to make reasonable efforts to accommodate the religious practices of employees unless doing so would cause the employer undue hardship. Title VII further provides that “religion” includes “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). The statutory language thus places the burden on the employer to establish that a requested accommodation would impose an “undue hardship,” which the Supreme Court defined inTrans World Airlines v. Hardison, 432 U.S. 63, 84 (1977), as “more than a de minimis cost” or burden. In Hardison, the Court held that requiring an employer to deviate from a seniority system in its collective-bargaining agreement to allow an employee to have Saturdays off to observe the Sabbath would constitute an undue hardship.

Since Hardison, failure-to-accommodate claims have continued to evolve. Recent cases have addressed requests for religious accommodation in a variety of contexts, including (1) a request to accommodate veganism as a religion, (2) requests for time off work to accommodate the Sabbath, and (3) requests for modifications/exemptions from dress or grooming rules to make allowances for an individual’s religious beliefs.

Veganism as a Possible Religion under Title VII
As noted above, Title VII broadly defines “religion” to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”42 U.S.C. § 2000e(j). Section 12 of the EEOC Compliance Manual further states that “religion” under Title VII can include theistic beliefs and practices as well as non-theistic moral and ethical beliefs. The same principle is contained in one of the EEOC regulations on religious discrimination, 29 C.F.R. § 1605.1 (“‘Religious’ nature of a practice or belief”), which provides that the EEOC “will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 11:1-CV-00917, (S.D. Ohio 2012) underscores the expansive standard for “religion” under Title VII. There, the court refused to dismiss religious-discrimination claims brought under Title VII and Ohio law by a longtime hospital employee who was discharged after refusing to have a flu vaccine. The plaintiff asserted that she was a vegan and that the flu vaccine violated her religious convictions against ingesting animal products; she also cited unspecified Bible verses in her request for accommodation. The employer argued that the complaint failed to state a claim for religious discrimination under federal or state law because veganism is a “dietary preference” rather than a religion. In response, the plaintiff argued that her veganism constituted a sincerely held moral or ethical belief within the meaning of 29 C.F.R. § 1605.1. She also noted that she had cited Biblical passages in her request for accommodation.

In denying the motion to dismiss the federal and state religious claims, the court explained that it only needed to determine whether the plaintiff had asserted a plausible claim, and that in its view, she had done so, because the court found it “plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.” While the motion-to-dismiss standard undeniably presents a significant hurdle for defendants, the court's willingness to accept veganism as a plausible religious belief nevertheless demonstrates the potential breadth of Title VII's scope with regard to religion.

Requests for Time Off Work to Observe the Sabbath
One of the most common scenarios of religious accommodation in the workplace involves an employee who seeks time off work to observe his or her Sabbath. That was the issue inHardison and it remains one that frequently arises today.

Recent Fifth Circuit decision distinguishing Hardison. In Antoine v. First Student, Inc., 713 F.3d 824, 834–39 (5th Cir. 2013), the Fifth Circuit distinguished Hardisonand reversed summary judgment for the employer that had argued it could not reasonably accommodate the request of Antoine, a bus driver, to change shifts so that he could have Friday afternoons off for his Sabbath. Antoine involved a collective-bargaining agreement that prohibited “route-swapping” but, instead, established a specific, formal process by which an employee seeking to change routes had to have the route posed by the employer for three days; it would be assigned to the most senior driver picking the route. Antoine had approached his supervisor about changing routes, but there was a fact dispute as to what was said, and Antoine’s route was never posted for three days according to process set forth in the collective-bargaining agreement. After Antoine’s supervisor instructed him to stay home if he could not drive the Friday afternoon route, Antoine never again reported to work and was subsequently discharged. He then asserted a failure-to-accommodate claim.

The Fifth Circuit reversed summary judgment, finding fact questions as to whether (1) the employer had reasonably accommodated Antoine’s request to change shifts and (2) doing so would pose an undue hardship (although either finding would have sufficed to reverse summary judgment). First, the court held that conflicting testimony as to what, if any, accommodations the employer had offered Antoine precluded summary judgment. Second, it rejected the employer’s alternative argument that accommodating Antoine’s request would pose an undue hardship. The court explained that the collective-bargaining agreement at issue, unlike that inHardison, contained a specific procedure for changing routes, which had not been used. Accordingly, the Fifth Circuit concluded that the employer had failed to show that accommodating Antoine would require it to violate the collective-bargaining agreement.

Evidence sufficient to demonstrate undue hardship. By contrast, where an employer presents objective evidence of the costs (both direct monetary costs and the burden on operations) that a requested accommodation would impose, it is more likely to obtain summary judgment. For example, in EEOC v. Thompson Contracting, Grading, Paving, and Utilities, Inc., 499 F. App’x 275, 281–85 (4th Cir. 2012), the Fourth Circuit affirmed summary judgment on the failure-to-accommodate claim of an employee, a dump-truck operator, who had asserted that his beliefs prohibited him from working from sunrise to sunset on his Saturday Sabbath. The employee at issue (and later the EEOC) had requested that the company accommodate him by excusing him from Saturday work and creating a “pool” of substitute drivers (either other employees or outside independent contractors who could cover his route).

The Fourth Circuit held that this proposed accommodation would have imposed an undue hardship on the company, because it needed a full staff of drivers on Saturday. The court explained that requiring other employees to cover his route was not acceptable because “an employer is not required to accommodate an employee’s religious need if it would impose personally and directly on fellow employees.” Nor would hiring independent contractors be a reasonable accommodation, because that would cost the employer substantially more (up to $100 per hour as compared with $100 per day for the employer’s own drivers).

Use of vacation/personal days to observe the Sabbath as a 
reasonable accommodation.
 One issue that has arisen with increasing frequency is whether it is a reasonable accommodation for an employer to require an employee use his or her vacation or personal leave to observe the Sabbath. Courts continue to split on that issue. For example, in Kilpatrick v. Hyundai Motor Manufacturing Alabama, LLC, 911 F. Supp. 2d 1211, 1217–18 (M.D. Ala. 2012), the court found a fact question on that point and denied summary judgment, stating that it could not conclude that allowing the plaintiff to use his vacation and personal days was a reasonable accommodation as a matter of law.

Likewise, in Jacobs v. Scotland Manufacturing, Inc., No. 1:10CV814 (M.D.N.C. 2012), the court declined to grant summary judgment where the onlyaccommodation offered by the employer was that a plaintiff use vacation days to observe the Sabbath. The court noted that the “extent of Defendant’s consideration of other possible accommodations that posed no undue hardship on Defendant or Plaintiff's coworkers is relevant to the reasonableness determination.”

By contrast, the court in Guy v. MTA New York City Transit, No. 10-CV-01998 (E.D.N.Y. 2012) held that allowing the plaintiff to use paid vacation and unpaid personal days to miss work on his Sabbath was a reasonable accommodation as a matter of law. Although the plaintiff had requested a change in work schedule so that he would not have to use any paid or unpaid leave, the court cited the Supreme Court’s opinion in Ansonia Board of Education v. Philbrook, 479 U.S. 60, 68–69 (1986), for the proposition that Title VII does not require an employer to grant the employee the particular accommodation he or she requests, because any reasonable accommodation by the employer is sufficient to meet its accommodation obligation.

It will be interesting to follow how courts address the use of vacation and personal leave as a reasonable accommodation under Title VII, particularly as the cases progress through the courts of appeals.

Requests for Adjustments to Workplace Dress/Grooming Rules
Several religious accommodation cases in the past few years have addressed employees seeking an exemption from a dress or grooming policy. The outcome of such cases often turns on the nature of the undue-hardship evidence presented by the employer. It bears noting that section 12 of the EEOC Compliance Manual and the EEOC’s Questions and Answers: Religious Discrimination in the Workplace state that factors relevant to the undue-hardship analysis may include the type of workplace, the nature of the employee’s duties, and the cost of the accommodation compared with the size and operating costs of the employer. The EEOC’s Questions and Answers: Religious Discrimination also state that “an employer cannot rely on potential or hypothetical hardship . . . but rather should rely on objective information.” While EEOC guidance does not have the force of law, courts may choose to follow it as an agency’s interpretation of a statute it enforces.

Demonstrated safety concerns as undue hardship. Employers who can show legitimate, documented safety concerns generally tend to fare better in the undue-hardship inquiry. In EEOC v. GEO Group, Inc., 616 F.3d 265, 274–77 (3d Cir. 2010), the Third Circuit affirmed summary judgment for an employer (a private company contracted to run a prison) that had refused to make an exception to a prison dress policy that prevented any headgear. A group of female Muslim employees challenged that policy and sought permission to wear head coverings called khimars. The employer argued that relaxing the no-headgear rule would pose an undue hardship premised on safety concerns and presented the deposition testimony of two prison wardens who explained that the rule was designed to prevent inmates and employees from hiding weapons and contraband and choking each other with scarf headpieces. The employer also argued that granting the accommodation would cause it to incur additional time and resources of prison officials in examining the employees at issue as they passed through various checkpoints in the prison. Although noting that the facts presented a “close case,” the Third Circuit found that the employer had established undue hardship. The court noted that “[a] prison is not a summer camp” and “the prison has an overriding responsibility to ensure the safety of its prisoners, staff, and the visitors.”

Following the reasoning of GEO Group, the Northern District of Mississippi in Finnie v. Lee County, Mississippi, 907 F. Supp. 2d 750, 776–84 (N.D. Miss. 2012), granted summary judgment to an employer on a religious-accommodation claim brought by a Pentecostal juvenile-detention officer seeking to wear dresses. The employer had presented deposition testimony and an expert report describing the safety concerns presented by a juvenile-detention officer who wore a skirt, including an impaired ability to restrain violent youth and engage in defense maneuvers when required. The court concluded that the defendants had met their burden of establishing undue hardship in the form of safety risks at the detention facility. The court also observed that “to carry a burden of showing undue hardship, Defendants do not even need to prove that a skirt has—for example, in the past—actuallycaused such safety and security problems. Instead, the Defendants must show safety and security risks.

Concerns about customer reaction/public image as potential undue hardship.By contrast, recent decisions have indicated that an employer might have more difficulty establishing undue hardship based on “image” concerns or customer reactions to a proposed exemption from a dress code. In EEOC v. Abercrombie & Fitch Stores, Inc., 798 F. Supp. 2d 1272,1280–87 (N.D. Okla. 2011), the Northern District of Oklahoma denied summary judgment to a retail company that had refused to let a female Muslim employee wear a head scarf. The employer had argued that the scarf was inconsistent with its “Look Policy” and refused to relax the policy for the employee at issue, because it argued that doing so for even one employee would “cause consumer confusion” and dilute the store’s brand identity.

The court rejected that argument and emphasized the fact that none of the company executives who had testified about “brand image” had conducted any studies or cited any specific examples to support their testimony. It also noted that the company’s corporate human-resources department had previously granted multiple exemptions to the Look Policy, including exceptions for head scarves. Accordingly, the court found that the employer had failed to meet its burden to establish undue hardship.

Similarly, in EEOC v. Red Robin Gourmet Burgers, Inc. (W.D. Wash. 2005), the Western District of Washington denied summary judgment on a religious-accommodation claim brought by an employee who had been discharged for refusing to cover tattoos worn as part of her faith. The court noted that the tattoos were less than one-fourth of an inch in size, and there was no evidence that any customers complained. Rejecting the employer’s argument that the tattoos would damage its “family-oriented and kid-friendly” image, the court stated that “[h]ypothetical hardships based on unproven assumptions typically fail to constitute undue hardship.”

The First Circuit, however, has taken the minority view on the issue of public image as an undue hardship. In Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134–37(1st Cir. 2004), cert. denied, 545 U.S. 1131 (2005), the First Circuit held that requiring Costco to allow an employee to wear a visible eyebrow piercing as part of her faith (the “Church of Body Modification”) would detract from the “neat, clean, and professional image” it sought to cultivate through its policy against facial jewelry. The court reasoned that “Costco is far from unique in adopting personal appearance standards to promote and protect its image.” It concluded that granting the plaintiff an exemption from the policy would cause Costco to “forfei[t] its ability to mandate compliance and thus los[e] control over its public image.”

Although the trend of recent cases appears to lean away from the holding ofCloutier to that of Abercrombie & Fitch,it remains an open question whether courts will recognize factual scenarios where an employer does show that damage to brand identity and public image would constitute an undue hardship.


Keywords: litigation, employment law, labor relations, religion discrimination, veganism, Sabbath, EEOC, undue hardship


Tamara R. Jones is an associate in the Dallas, Texas, office of Constangy, Brooks & Smith, LLP.Elizabeth A. Erickson is a partner in the firm's Madison, Wisconsin, office.


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