Suppose an employee, an adherent of a religion you’ve never heard of, requests time off from work on certain religious observance days.
The EEOC has some advice for employers:
Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.
One employer apparently didn’t get the memo.
Last week, the EEOC announced that an employer agreed to settle a religious accommodation lawsuit for $60,000, where the EEOC charged that the company refused to grant the employee, an adherent of Messianic Judaism, a schedule modification to observe Rosh Hashanah because he was unable to provide a certification from a religious leader or religious organization supporting his request.
This lawsuit lasted several years and even went up on appeal to the Third Circuit Court of Appeals, where the court noted that “this insistence on official clergy verification” was misplaced and any documentation “does not have to come from a clergy member or fellow congregant.”
The court further noted that “written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief.”
In this case, the EEOC presented evidence that the employee provided emails with a congregation leader and a calendar of holy days the congregation would observe. But, even though the company’s HR employees agreed that these documents gave them sufficient notice of the dates when the employee would need to take religious absences, the company persisted in refusing to excuse his prior or future religious absences without an official clergy letter.
The EEOC advises that “if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.”
Indeed, a personal preference or secular practice would not entitle an employee to a religious accommodation or any protection under Title VII.
But as many employers embroiled in pandemic-related litigation over religious accommodations have learned, this isn’t the hill your company wants to pay lawyers lots of money to defend and die on.
Instead, if an employee requests religious accommodation, focus on whether your business can provide that accommodation without causing undue hardship to the business.