Religious freedom versus employer interests in the workplace

Religious Freedom in the Workplace

How far is too far?

America is a place that brags of freedom from prejudice due to ethnicity, gender or religion. It is a melting pot of various races and religions, where none must suffer persecution or fear due to their who they are. Separation o church and state is the key principle that preserves the rights of individuals to make their own choices regarding spirituality and morality issues. The difficulty develops when the right to practice a particular religion extends into the work place. In recent years, workplaces have become battlegrounds for this delicate issue. This research will explore the issues involved with religious freedom in the workplace. It will support the thesis that religious freedom is detrimental to the workplace, regardless of the views of the American public.

Religious freedom takes many forms that differ from one order to another. In some cases, religious freedom may mean wearing certain types of dress. Other religions may conflict with the work schedule, requiring followers to attend special services during normal work hours. Certain religions may mean the avoidance of certain foods, or performing certain types of duties at work. Religions place many different requirements on their followers. Civil rights conflicts arise when an employee's religious requirements conflict with an employer's right to conduct business. Often, the issues on both sides are complex and so are the answers.

Religious Practices That Might Conflict with the Work Environment

It is difficult to discuss religious practices without citing some specific examples that might result in conflict. Many times the conflict is only specific to a particular job in a certain situation. For instance, male Muslims or Amish may wish to wear a long beard at work, as their custom dictates (Ontario Consultants on Religious Tolerance, n.d.). This may only be an aesthetic issue in certain work situations, such as at an office. It may violate dress codes in some work places. In this case, the employee may argue that this is discriminatory and that it poses no harm. To deny them this right may be considered discrimination against the characteristic look for someone identifying with that religion.

In certain situations, wearing a long beard may violate regulations that the establishment must obey, such as in a food establishment. A restaurant or food manufacturer that allows an employee to wear an uncovered beard may risk fines for violations of the rules. In this circumstance, the most obvious remedy would be to wear an appropriate beard covering according to health department regulations. A problem would ensue if the employee refused to wear one. In this case, the employee may place their employer at risk of fines, or in extreme cases closure. This places both the employee and the employer at risk.

In some cases, wearing a long beard in the workplace may pose an immediate risk to the employee. For instance, in manufacturing environments where the employee must work around moving parts, a beard could place the employee at risk of severe injury or death if the beard were to become entangled in the machinery. In this case, wearing a long beard may place the employee at risk of injury, and the employer at financial risk. The employer could face potential lawsuits, fines by safety organizations, and loss of equipment. Scenarios such as these create a worst case, in terms of pitting religious freedom against workplace violations.

This example demonstrates how one religious act can have varying degrees of risk involved for the employee and the employer. In the first case, the employer has little argument and it comes down to a matter of personal preferences. In the case of a retail establishment, wearing a beard may not fit the genre of the establishment, but the effects on sales are obscure. There is no credible way to examine the impact of allowing an employee to wear a beard for religious reasons on actual sales. One will never know if the customer made a judgment based on the presence or absence of a beard on the actual decision to buy or pass. The actual damages to the employee are arbitrary and difficult to define. However, if cutting the beard will not cause hardship, the employer must allow these practices (Carter v. Bruce Oakley, Inc., 1994).

In the second example, the employer is a risk of a real loss due to the actions of the employee. However, there is a reasonable accommodation to the problem that will satisfy the regulatory agencies and allow the worker to continue to wear their beard. The work can simply wear an approved beard covering and continue to work. This solution does not place undue strain on the employer, as these devices can be obtained cheaply.

The third example is the most problematic because there is no reasonable accommodation that can be made which would prevent the risk of injury to the employee and financial risk to the employer. In these cases, the employer is more likely to prevail (Bhatia v. Chevron USA, 1984-1985: EEOC v. Heil-Quaker Corp, 1990). When the issues involve safety, rather than aesthetics and preferences, regulatory agencies are less likely to bend, even if the practice is for religious reasons. In the end, the employer is the one with the most to lose, for it is they who must pay the fines. They are the ones that now have violations on their records. They have the final responsibility for making certain that workers follow regulations and operate machinery in a safe fashion. The employee may face disciplinary actions from the employer, or risk their own bodily harm, but the employer bears the brunt of the results of their actions. This example demonstrates how preferences for certain dress or hairstyles could have many forms and levels of severity.

Let us consider another example to illustrate this point. Some religions require their followers to attend worship or other services at prescribed times. Some examples of this type of accommodation are a Jewish person that wants to leave work early on Fridays to attend services (Ontario Consultants on Religious Tolerance, n.d.). Another may be the Muslim that must take certain breaks during their day to pray. Wiccans may want to work on a Christian holiday, but take time off for their own Sabbath (Ontario Consultants on Religious Tolerance, n.d.). There are many circumstances where the employee may ask for religious freedom in their work schedule.

In many cases, reasonable accommodations are able to be made. For instance, there may be the option of flex time. The employee may be able to work overtime during the week in order to make up for the time off. In other cases, they may be able to trade hours with another employee in order to accommodate the schedule. In many of these cases, the employer is required to relent to accommodate religious requirements (Redmond v. GAF Corp, 1978). These issues differ according to the needs of the work environment. In many cases, a compromise can be reached in schedule related issues. However, there are times when the employer will be placed in a difficult circumstance, such as not being able to fulfill a vital duty due to the absence.

Similarities to the ADA

The issue of what constitutes reasonable accommodation is at the heart of the question regarding what is considered to be a reasonable accommodation of the employer. There is another branch of the law that has a similar issue at its heart. The Americans with Disabilities Act (ADA), also had to resolve a similar question of reasonable accommodation. Under this law, employers are required to make reasonable accommodations to allow those with disabilities a way to perform their job (42 U.S.C. 12111(10)).

The ADA's definition of what constitutes undue burden is found in 42 U.S.C. 12111(10). The WRFA adopted much of the language contained in the ADA as a basis for their own proposed legislation. The purpose of this section was to attempt to provide consistent guidelines for determining if reasonable accommodations had been made. The language defines the undue difficulty when the accommodation would not result in the ability of the employee to perform their job, even with the accommodation (Baxter, 2006). Other factors would be considered including, whether the identifiable costs of accommodation, including loss of productivity or the costs of retraining an employee would pose a threat to the business. These factors would be considered in relation to the size of the employer (Baxter, 2006).

These are the guidelines, as they apply to the ADA. The argument for the necessity to make reasonable accommodations for a disabled person is similar in many ways to that of accommodating religious freedom, at least from an employer's standpoint. The employer must be the one to bend in order to allow the other person the same chance as everyone else.

In the case of a person with a disability, these laws are more equitable, as a person cannot help the fact that they are disabled. This is where the differences between religious freedom in the workplace and the ADA go astray. One can easily see making accommodations to allow a person with disabilities to work. If they do not work, society will still have to pay for their expenses through the social services that they receive. If one takes a macro-perspective, making accommodations in the workplace is a favor to society. The employer is helping to defer the costs of taking care of a person with a disability by allowing them to be a productive member of society.

However, in the case of religious freedom, the employer is not providing a social service to the whole of society that is tangible. When an employer makes an accommodation for religious purposes, they are helping to maintain the diversity of the society and to uphold the principles upon which the country was founded, but they are not defraying any direct costs to society. A person cannot receive social services based on their religious preferences. Religion is a choice, disability is not a choice. This is the key difference between these two concepts.

Those that promote the need to make accommodations in the work place due to religious freedom have adopted the language used by the ADA in order to draw attention to the similarities. However, the only similarities between the ADA and the WRFA are the "accommodations" that must be made by the employer. Outside of this factor, there is little similarity between the two concepts. Employers highlight the fact that religion is a personal choice, whereas disability is not a choice.

It is an easier pill to swallow when they must make accommodations for a disabled person. Making accommodations for someone less fortunate than oneself has many benefits. Society is likely to see the employer in a positive light, as they are allowing a disabled person the ability to take care of themselves. They are taking the burden off of society for their care. Society recognizes their service and will be likely to see them as an asset to the community. They will be seen as a caring company that cares about more than their bottom line. There are many benefits to helping make accommodations for the disabled.

The same cannot be said for religious accommodations. The acceptance of the necessity to make accommodations for religious preferences may be seen as unfair to those of other religions. The employer can end up with a big problem as every religious faction in the workplace begins to demand "equal time" when accommodations are made for one group. Most employers do not have the flexibility to allow their employees to come and go as they please.

When the actions of the employees harm the ability of the employer to make a profit, it harms the employees themselves. They may have to make up the lost differences by means of pay cuts or layoffs. This represents a social burden, as these employees will now collect unemployment. This is quite the opposite of making accommodations under the ADA. Making accommodations under the WRFA can pose a greater burden to society through the loss of taxes, in addition to increased unemployment.

Making accommodations under the ADA is viewed as a "good deed." Few will argue with helping those less fortunate than ourselves. Other workers are more likely to be supportive of the accommodations and of the person. Helping others makes us feel good about ourselves. However, the same cannot be said for making accommodations for religious reasons. This can cause a sense of unfairness. Making accommodations for religious reasons may cause jealousy and resentment, rather than a feeling of cooperation and good will among the employees.

The employer is put on the spot. They must quickly weigh many factors, one of which is the cost of the accommodation. There are tangible and intangible costs to the employer who is asked to make a religious accommodation. There are direct costs associated with lost productivity or the cost of finding a replacement. There are also intangible costs in the emotional fallout of the actions.

The purpose of Title VII was to avoid discrimination based on religion. However, due to the ambiguity of its wording, it has not only failed to promote religious discrimination in the workplace, it has served to promote inequality. When employers are forced to comply with the religious wishes of one individual, they must squash the rights of others who might also wish to practice a religion that is different from the mainstream. Religions exist due to philosophical differences. These differences can be a source of considerable conflict.

Wars are fought over religious differences. When these conflicts are introduced into the workforce, they undermine the goals of the organization and promote a feeling of dissention among the employees. Forcing employers to make accommodations for religious purposes harms their ability to operate in an efficient manner. In some cases, a minor accommodation may not be seen as unreasonable. However, when it comes to time off or risk to other employees, asking employers to accommodate the employee for religious reasons is unreasonable.