Religion in the workplace5/1/2019
5 tips for business owners to help deal with potential discrimination
As Iowa and the nation become more diverse with immigrants, business owners will see more workers with different religious backgrounds, which might lead to questions about what is or isn’t allowed at work, business and legal experts say.
“Over time, I think you’re going to run into more issues, especially about dress or hair or hair length, etc.,” says Mark Kende, a professor of law and the director of the Drake Constitutional Law Center at Drake University.
Federal and state law prohibit religious discrimination in the private workplace, but that doesn’t mean that employers and business owners have their hands tied. They can still put rules into effect that will limit visibility and employee conduct, especially if the latter could hurt their business.
“The bottom line is employers are allowed to have general rules,” Kende says. “If it’s the general rule that applies to everyone, not just religion, the employer usually is in a pretty good situation.”
Employers can take the following steps to protect their companies and ensure their employees receive their lawful rights
1. Know what the law says
The Civil Rights Act of 1964 forbids discrimination in regards to any aspect of employment, including hiring, job assignments, training and benefits. A person also cannot be harassed because of his or her religion or placed in a non-customer contact position because of actual or feared customer preference, according to the U.S. Equal Employment Opportunity Commission.
Religious discrimination means to treat a person, either an applicant or an employee, unfavorably because of his or her religious beliefs. The federal law protects anyone who has a sincerely held religious, ethical or moral belief, not just those who belong to a traditional or organized religion.
In addition, the Iowa Civil Rights Act of 1965 also protects individuals from religious discrimination in the area of employment.
The federal law requires employers to reasonably accommodate an employee’s religious beliefs or practices unless doing so would cause more than a minimal burden on operations. This includes making adjustments so the employee can practice his or her religion, such as flexible scheduling to have sabbath days off or allowing breaks for an employee to pray.
“Things become problematic when it comes down to not working on a certain day that the company is open,” Kende says. “The employer doesn’t have to do something that’s going to make them not function, but on the other hand, if it really amounts to a little bit of shuffling, then they would have some obligations to do so.”
Employers must also provide religious accommodations for grooming and dress practices that the employee has for religious reasons such as a Jewish yarmulke or a Muslim headscarf or a certain hairstyle or facial hair such as Rastafarian dreadlocks. This includes an employee’s observance of religious prohibition against wearing garments such as pants or a miniskirt, according to the EEOC.
The employer does not have to accommodate the employee’s religious beliefs or practices if it would cause an undue hardship to the business such as extra costs, a compromise of workplace safety, a decrease in efficiency, an infringement on the rights of other employees, or if it requires other employees to do more than their fair share of potentially hazardous or burdensome work, the EEOC reports.
Likewise, the business owner or a manager cannot force employees to participate or prohibit them from participating in a religious activity as a condition of employment.
“When people are pressured by their supervisor, in particular, or someone who makes decisions about their career, to pray at the office, that can become an excruciating situation,” says Annie Laurie Gaylor, the co-president and co-founder of the Freedom from Religion Foundation, a nonprofit organization in Madison, Wisconsin.
The group mostly works to separate religion from government but still hears from members about situations at private businesses in which supervisors apply religious pressure onto employees, she says.
2. Understand what regulations are allowed
Private employers can still regulate religious items that are displayed within the workspace, but they should be cautious. They can prohibit items of “self-expression,” but that doesn’t always mean they should, says Michele Brott, an employment attorney with Davis Brown Law Firm.
Some companies are struggling to fill positions and find qualified skilled workers because of Iowa’s low unemployment rate of 2.4 percent. Brott says policies that prohibit display of “self-expression” items, which includes religious items, might deter individuals from working at a business.
Employers can regulate materials that could offend customers, as long as it doesn’t specifically single out a religion, Kende says.
Any business owner also needs to differentiate between safety and non-safety issues and provide reasonable accommodations to employees who request them because of their religion. If the company has a dress code, the employee needs to know that he or she must ask for an accommodation to be allowed to wear a religious garment or head gear that doesn’t fit with the dress code or company policy. In general, Brott recommends that if there isn’t a safety or health regulatory issue with the employee wearing the item, and the item is part of his or her “seriously held belief,” then employers should allow it.
“The idea of someone being well-dressed can’t just be in a Western sense,” he says.
Connie Ryan, the executive director of the Interfaith Alliance of Iowa, a nonpartisan organization that works to protect religious freedom in the state, thinks employers need to be proactive in making sure they understand the needs of their employees overall, but also if someone needs a religious accommodation to have a head covering or a particular dress.
Employees must notify their employer of the need for a religious accommodation and discuss it with the employer if necessary, according to the EEOC. This includes days off from work to recognize a sabbath day.
The Harvard Business Review recommends employers anticipate staffing needs that might affect productivity and factor those into any sort of policy, so employees can understand why they might not be able to receive time off for times such as tax season, earnings reporting or the holiday retail rush.
Kende says accommodating days off from work for religious sabbath are likely easier for a larger company.
“If one person can’t work, then it doesn’t matter,” he says. “If it’s a small business, or (the employer) doesn’t have anyone else who could provide that service, then the company has to ask if it would hurt the company’s revenues in a way that matters. Then the employee’s case isn’t as strong.”
Some religions require other practices such as prayer at certain times, but Ryan says that might not be possible with certain jobs that are more demanding and don’t have flexibility for breaks at specific jobs.
“I understand there are demands when somebody chooses to take a job,” she says. “They take that with the understanding of fulfilling those job duties, but I think, overall, I would hope employers are working with their employees from different religious traditions that have some requirement of their faith and balancing those two pieces.”
There are some exemptions to Title VII of the Civil Rights Act, which deals with discrimination. Religious organizations and some nonprofit organizations whose purpose is to promote a religion or non-religion such as atheism may hire based upon their purposes. The Catholic church, for example, can choose to hire only Catholics as priests.
3. Keep recent court decisions in mind
One of the more well-known cases involving religious dress pitted a young Muslim woman against Abercrombie & Fitch for rejecting her job application because she wore a hijab for religious reasons.
Abercrombie had a dress code for employees that was referred to as “The Look,” which was described as a classic East Coast collegiate style. This dictated how salespeople were to style their hair, their body type, what they wore and more.
In 2008, a teenage woman interviewed for a salesperson position. The manager told her to expect a call in a few days about orientation. The woman did not hear back. It was learned that a senior manager had blocked her from being hired because he thought the woman’s headscarf clashed with the store’s dress code.
The EEOC joined her in her complaint against the company. Courts battled back and forth with the case eventually making its way to the U.S. Supreme Court in 2015. The high court sided with the woman and ruled that, under Title VII of the Civil Rights Act of 1964, it was illegal to refuse to hire her because of her religion.
In a separate case, auto parts retailer AutoZone had to pay $75,000 to an employee after the man was told he couldn’t wear a turban to work after he converted to Sikhism.
There are some cases, particularly in areas of Europe, where courts have ruled against religious dress, Kende says.
Rastafarians wear dreadlocks, have longer facial hair and smoke marijuana as part of their faith. They also have an informal clothing style.
There are some complicated situations where courts have ruled that Rastafarians don’t have the same rights because of their informal clothing choices and use of illegal drugs, Kende says.
4. Know what steps to take
First, consult with a legal professional. Business owners should implement policies that set forth employer and employee rights in a way that balances the two, so everyone knows where the boundaries are, Brott says. Many of these policies will be clearly outlined in the company handbook, which the employer should give to all employees so they understand the company’s expectations.
If the employer does not have a policy, and a discrimination complaint is made or a lawsuit is filed, he or she should still put one in place and use the report or concern as a learning tool, she says.
At least every two years, business owners need to train their managers and employees about company rules and changes to the company handbook. Everyone needs to have a good working knowledge of the handbook and its contents and not just refer to it when there’s a complaint or a problem, Brott says.
“It should reflect the management style, the culture and expectations,” she says.
Any policy needs to be consistent across the board and equally enforced, Brott says. For example, if Christian employees were allowed to display Easter items including crosses, then an employee of a different religion should be allowed to display an item associated with his or her religion.
The Freedom from Religion Foundation recommends that policies not make an exemption for religious displays, by either only excluding or only allowing, and that they either prohibit or allow all displays, except for those that could be considered offensive. Bibles or religious texts in private offices are subject to many of the same criteria.
Mike Draper, the owner of Raygun, a clothing store with locations in Iowa and Kansas City, says his company’s dress code policy is “pretty loose” for its 75 employees. Footwear has been more of an issue than other clothing, he says, adding that he grew up in a conservative town and saw many crucifixes, attended a predominately Jewish university, and lived in London, where there’s a large Muslim population.
“I’ve never really been all that threatened by religious expression,” he says.
He wasn’t aware of any employees who wear religious dress or items to express their religion other than one employee who wore a headscarf, but he wasn’t sure of the person’s religion.
Other employers aren’t quite as lenient. Draper says his mother worked at a large financial company and had a sticker in her cubicle that read: “Jesus is coming. Everyone, look busy.” She was asked to remove it.
5. Take immediate action
If an employee is offended by the display of a religion item, act fast, take the complaint seriously and investigate, experts say.
According to the Iowa Civil Rights Commission, the number of complaints has remained steady statewide at about 1,200 since 2013-14, according to the commission’s most recent report. The report does not differentiate between which complaints were based on religious discrimination versus another type of discrimination.
Experts recommend employers see if a compromise can be made. If one employee wants to display a cross for Easter and another employee is offended, can the cross be moved so the other employee doesn’t see it? Work with employees so they can enjoy their workspace, Brott recommends to business owners.
A company can further protect itself by attaining Employment Practices Liability Insurance (EPLI). This can be an important risk-management tool, especially for small-business owners, Brott says.
“This is really important in case they have to defend themselves and the company against any type of discrimination complaint or lawsuit,” she says.
The EEOC reports that $9.2 million was paid out in response to religious discrimination cases in 2017-18.
Accommodations might be different if the employee works directly with customers, though it can also be handled on a complaint basis, she says, as long as the employer has made it clear to the employee that his or her religious or “sincerely held” beliefs can be upsetting to others.
“These are folks’ rights, these are your rights, they can result in a lawsuit, and they are important,” Brott says. “You shouldn’t gloss over them. You should call a labor and employment attorney. You can call the hotline number or resource for your insurance. You shouldn’t assume. You need to investigate the problem.” ♦