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Employment Law Blog: Witches, Warlocks....and Santa? Religious Accommodations During the Holiday Season - October 22, 2012

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 accommodation. 


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 potential accommodation. 


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.