The law firm is in full Halloween
swing. There are severed hands in the outbox, styrofoam tombstones hanging by
marketing and a fiendish ghoul that cackles guarding a conference room
door. While some people might argue that
this is normal for your standard law firm it did bring to light the issues that
many employers face during the long holiday season; that of religious
There is no secret that in the
United States we have a wide-array of religions, some of which have beliefs and
rituals which may not be well known to others, including co-workers. We also frequently have dueling definitions
of what is offensive. A practitioner of Wicca might find the warty witch face
cackling by the door to be entirely offensive, while another employee might
find the pentacle worn by the Wicca practitioner to be equally offensive. The
problem for the employer is the balance of how to protect the individual's
religious freedoms and still get work done.
Religious issues in the work
place are treated more like disability accommodation than something such as an
age discrimination complaint. For the purposes of a religious accommodation
issue, the employer must first assess whether or not the issue is a religiously
held belief or belief held with the same conviction as a religious belief (you
do not have to ascribe to a certain religion if the belief you are professing
is held with the same conviction that a religious belief would be held). The
second prong of this test, like in a disability claim, is to determine what
type of accommodation is requested or needed.
The third prong is to make an assessment as to whether or not such an
accommodation is reasonable. Note that
the EEOC and Iowa Civil Rights Commission have a broader definition of what is
reasonable than many employers. So, the
point is to be generous in accommodation if practical.
Various cases have all found
extra break time for prayers, limitations on work hours such as an observant
Jew not being required to work after sundown on Friday as reasonable
accommodations. Again, such reasonable
accommodations are based on the nature and type of the work, the actual request
for accommodation and similar factors.
Safety issues do not typically
form the foundation for a religious accommodation. There are a significant number of cases which
indicate that although a religion may require that men wear a full beard, if
the job requires safety gear, such as a respiratory breather, a full beard is
not an appropriate accommodation because it would damage the breathe seal and
potentially place the employee at risk.
Certain accommodations, particularly if you are a healthcare provider,
may also pose an infection control risk, such as if an employee is required to
wear a specific type of ointment or carry a certain charm or amulet that may
not be acceptable from an infection control standard. The FMLA also provides for certifications
from religious healers and practitioners in some limited circumstances. All religions require assessment and
An interesting case in this area
involved a maternity clothing shop where a Muslim woman requested to wear a
head scarf and was told she could not. The
store was adamant that no accommodation be made. In testimony the company manager stated that
she didn't realize the woman was Muslim.
She thought she was Mormon, which would also
require an accommodation for a religious specific need, thereby creating a classic example of both
ignorance and discrimination.
Perhaps the most difficult thing
to deal with in a religious accommodation situation is when there is simply offense
taken by one employee to the religious practices or observances of another
employee. However, if you have a
workplace where you allow employees to wear crosses or crucifixes (which tends
to be fairly common) to work you can't prohibit an employee from wearing a
pentacle or pentagram or any other religious jewelry. A number of religions might object to
Halloween, others the signs and symbols of Christmas, and an increasingly large
proportion of Americans who state they have no particular religion might just
see both as an excuse for candy. If you
allow an outward showing of one religion, you cannot decline to allow the same
type of showing for other religions.
Tolerance, in this instance, begins at work.