It is considered an unlawful employment practice for an employer to discriminate against an employee/applicant because of a conflict between the person’s religious belief or observance and any employment requirement unless providing the accommodation would result in an undue hardship.
Employers who receive religious based accommodation requests – including those made in response to vaccination mandates – must engage in a timely good faith interactive process and consider any available reasonable accommodation including:
- Any available reasonable alternative means of accommodating the religious belief or observance.
- The possibilities of excusing the person from those duties that conflict with the person’s religious belief or observance; or
- Permitting those duties to be performed at another time or by another person.
Religious belief or observance includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and after a religious observance, religious dress practice and religious grooming practices. A religious belief may also include a refusal to receive a vaccination because of a sincerely held religious belief that, “my body is my temple.” This is true even if the employer observes the employee acting in a manner contrary to that belief (e.g., drug use or excessive alcohol consumption).
What about sincerely held religious beliefs that conflict with the individual’s stated religious affiliation? For example, it is feasible that a professed Catholic may still refuse the COVID-19 vaccination on religious grounds even though the Vatican deems use of the vaccination “morally acceptable.” On the other end of the religious spectrum are Atheist beliefs; protected under the law because they are viewed as “taking a position on divinity.” Federal law (e.g., Title VII) reminds us that the “definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar.”
No matter the nature of the professed belief, observation, or practice, it is recommended that employers receiving a request for religious accommodation begin the accommodation process with the assumption that the employee’s request is based on a sincerely held belief, practice, or observance. However, if during the interactive process, the employer becomes aware of facts providing an objective basis for questioning either the religious nature or sincerity of a particular belief, practice or observation, they would be justified in requesting additional supporting information.
The Equal Employment Opportunity Commission (EEOC) provides the following guidance to its investigators:
- Begin with the individual’s statements. What belief, observance, or practice does the individual claim conflicts with the employment requirement? Does the individual’s response seem credible? Is the individual able to answer questions about the nature and tenets of the religious belief, and/or any associated practices, rituals, clergy, observances, etc., in order to identify a specific religious belief, observance, or practice, or determine if one is at issue, which conflicts with the employment requirement?
- Religious beliefs are unique to the individual, evidence from others is not always necessary. Nonetheless, if the individual believes that oral statements, affidavits or other documents from their religious leader or others identified as being knowledgeable about the religious belief, observance, or practice would bolster support for the request, it might be helpful to consider such additional information.
Finally, in determining if a religious accommodation can be made, the employer must determine whether the specific accommodation requested by the employee or the only accommodation that the employer can identify causes an undue hardship. The determination of whether a specific accommodation would pose an undue hardship is fact-specific and may change over time.
In all situations, employers should try to maintain a fresh perspective and keep in mind the intensely personal nature of adherence to a religious belief by evaluating each request on a case-by-case basis.
NOTE: Accommodating an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public. Employers are not required to provide accommodations that would result in a violation of antidiscrimination or civil rights laws.
As with all anti-discrimination provisions, employers are prohibited from retaliating against individuals who seek religious based accommodations.
Members with questions about providing religious accommodations should contact Western Growers and seek legal counsel before denying such a request.
[Teresa McQueen is corporate counsel for Western Growers.]