Lexington, KY - Although religious discrimination claims are not as common as claims based on sexual harassment or disability discrimination, the Equal Employment Opportunity Commission reports that the number of religious discrimination claims doubled from 1992 to a record level in 2007. The EEOC attributes this largely to the increase in religious diversity in the workplace. Whatever the reason, this increased number of claims provides a good reason for employers to take steps to understand and comply with their obligations under the laws prohibiting discrimination and harassment based on religion and requiring employers to reasonably accommodate employees' religious practices. You might want to take some tips from the hypothetical scenario below involving Sunnyside Diner.
Sunnyside Diner meets Ned
Sunnyside Diner, which employs 20 employees, requires that its male employees wear their hair "short and neat." Ned, who wears his hair in a long braid, applies for a job as a server at Sunnyside. During his interview with Mason Manager, Mason tells Ned that, if he is hired, he will have to cut his hair. Ned explains to Mason that he follows Native American religious beliefs that prohibit males from cutting their hair. He assures Mason that, if he is hired, he will wear his hair held up with a clip. Mason tells him that this is not possible: "If we bend the rules for you, we'll have to bend them for everybody."
Upon being denied employment, Ned visits his local EEOC office and files a charge of religious discrimination. What finding is the EEOC likely to make?
Sunnyside Diner meets the EEOC
Title VII of the Civil Rights Act of 1964, and the Kentucky equivalent, the Kentucky Civil Rights Act (KCRA), require an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief conflicts with a work requirement, unless providing the accommodation would create an undue hardship. Religious beliefs are not confined to beliefs held by those who subscribe to traditional religious views. Rather, they include those that are new, uncommon, not part of a formal church or sect and those that are subscribed to by a small number of people, even if they seem illogical or unreasonable to others. To be protected under Title VII or the KCRA, however, the religious belief must be "sincerely held" by the applicant or employee. No magic words are required for an applicant or employee to place an employer on notice of the conflict between religious needs and the work environment. The employee or applicant need only inform the employer that there exists a conflict between the religious belief or practice and the requirement for performing the job. In this case, Ned did inform Mason of the conflict between Sunnyside's rule regarding short hair and his religious belief requiring his hair to remain long. Mason could have, if he had chosen to, questioned Ned to determine if his beliefs were indeed sincerely held. We will assume Ned could have satisfied this requirement.
Sunnyside is therefore required to offer Ned reasonable accommodation unless this would cause undue hardship. Undue hardship may be shown if the accommodation would pose more than "de minimus" cost. Cost may be other than monetary. It may include diminished efficiency in other jobs, infringement on other employees' job rights or benefits, and impairment of workplace safety. Here, in the case of Sunnyside Diner, it is hard to see how accommodating Ned by allowing him to wear his hair held up in a clip would cause undue hardship. Sunnyside's argument that accommodating Ned would lead to its having to allow other male employees to wear their hair long will almost certainly not qualify as undue hardship. Although other employees may grumble, there is no legal reason why Sunnyside cannot make an exception for Ned only.
On these facts, the EEOC may well issue a finding of reasonable cause to believe Sunnyside unlawfully discriminated against Ned by refusing to hire him and by unlawfully denying him reasonable accommodation. If so, it will probably attempt to convince Sunnyside to conciliate the claim by paying Ned the wages he lost as a result of not being hired.
Sunnyside would do well to consider this a valuable lesson learned. It would also benefit from sending Mason and its other managers for some remedial training.
Do you have a question about employment law issues? E-mail Wendy Becker at wlb@gdm.com and your question may be addressed (anonymously, of course) in a future issue.
Wendy Becker is a member in the Lexington office of Greenebaum Doll & McDonald PLLC. This article is provided as general information rather than legal advice. Questions about individual situations should be directed to legal counsel.