RELIGIOUS FREEDOMS AND THE EEOC

Could saying “have a blessed day” be inappropriate and potentially actionable in the workplace if it offends a non-believer? And, to turn it around, could prohibiting a worker with deeply held religious convictions from saying it constitute an unlawful restriction of her legal rights? Welcome to my world! Has employment law gone to the point where we may have to differentiate between Gesundheit (good health) and God Bless You after someone sneezes? The EEOC has taken on quite a few cases and appears to be coming down in favor of the exercise of religious freedom these days. Three recent cases, although extreme, are illustrative of the trend.

The most extreme involved a Miami medical company which required employees to attend Scientology courses and to spend at least half their work days engaged in Scientology religious practices, such as (and I kid you not) screaming at ashtrays or staring at someone for hours without moving. One employee was required to undergo a Scientology “audit” by an E-meter, whatever that is (I don’t think I want to know!). The case was settled for $170,000. Takeaway: An employer cannot force its religion on workers by mandating that they practice or espouse a certain religion and cannot refuse to accommodate employees after they object to such discriminatory employment practices.

What if a dress code violates the religious beliefs of a worker? In a Texas case, a Burger King franchisee required workers to wear pants and discharged a Pentecostal Christian cashier who wore a skirt to work in violation of its policy. She told the EEOC that she had initially been promised an accommodation. The settlement cost the franchise $25,000. The requested accommodation was not unreasonable and did not involve safety concerns. A similar case involving a KFC chain produced the same result.

A recent case involved a Pennsylvania coal company which forced an Evangelical Christian who refused to submit to a biometric hand scanner to track his time and attendance to retire after 35 years on the job. He claimed that there was a relationship between the scanning technology and the “mark of the beast and antichrist discussed in the Book of Revelation in the New Testament” and requested an exemption based upon his religious beliefs. Remember that no matter how potentially far-fetched, if based upon a sincerely held religious belief, such an assertion must be taken seriously by the employer and a good faith evaluation conducted as to the effect of such an accommodation.

Several weeks ago, an EEOC case brought against a McDonald’s franchise was settled for $50,000. A Muslim employee’s request to grow a beard in accordance with his religious beliefs was refused and he was subsequently fired. This illustrates that retaliation against a worker who makes a request for accommodation in accordance with his religious beliefs can be costly to the employer. The question ultimately was not one of health or safety but of prohibited retaliation.

All requests for accommodations should be taken seriously, balanced against legitimate workplace concerns and documented. An expanded dialogue between employer and employee may be warranted to clarify positions on both sides. Nevertheless, I continue to distinguish between accommodating the right of employees to wear clothing prescribed by their religion, tattoos or symbols, so long as they do not cause an undue hardship to the employer and decorating cubicles as religious shrines.
In terms of wishing someone a blessed day, we do not yet have clarification from the courts. The EEOC’s Compliance Manual on Religious Discrimination says that you may have to accommodate an employee’s religious beliefs by permitting them to say “God Bless You” in the workplace unless doing so would cause a disruption in the workplace or is offensive to others.

Have a question or comment?
Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.