Religious Freedom 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.

Shifting the Balance of Power

Under the tenants and principles that govern the United States, every person has a right to practice the religion of their choice without hindrance from any other person or entity. At the same time, employers have the right to conduct business and to make profit. When these two rights come into conflict with one another, the issue often comes down to a balance of power. In cases where a reasonable accommodation can be made, the issue is easily resolved. However, sometimes accommodations can pose a substantial financial risk to the employer. The question that is as yet unanswered, is how far the employee has to go in order to make what is considered a "reasonable " accommodation. It is the definition of the term "reasonable" that poses the greatest problem in this case.

Statutes regarding religion in the workplace clarify religion to mean an organized faith. Therefore, atheists are protected (EEOC v. Townley Manufacturing, 1988). It was determined that membership in a secular organization, such as the Ku Klux Klan was not protected Bellamy v. Mason's Store, 1973). These cases were necessary additions to the law, as they prevented abuse of these rules under the law by allowing secular organization the ability to use the ruse of religion to gain their desires.

If one examines the progression of the laws regarding freedom of religion in the workplace, it becomes apparent that the balance of power has shifted from the worker to the employer and back again. In 1972, Title VII of the Civil Rights Act of 1964 was extended to require all medium and large companies to accommodate the religious needs of their employees. Companies with fewer than 15 employees were exempted from this requirement ((Ontario Consultants on Religious Tolerance, n.d.). There was also a clause that exempted the employer from making accommodations that would be financially detrimental. This modification of the Civil Rights Act failed to define what was meant by "financially detrimental." This issue was left for the courts to decide and there was wide variability in case law.

In 1977, Title VII was modified to include widespread employer exemption, even in cases where the cost was minimal or caused little difficult to the employer (Ontario Consultants on Religious Tolerance, n.d.). This modification shifted the balance of power, almost entirely to the employer. They could allow or disallow as they wished, and an employee could be terminated for failing to follow the rules governing the company. Religion was essentially wiped out of the workplace by this act. In July of 1997, congress failed to pass a bill that would change the wording of Title VII back to something similar to the original 1972 wording (Ontario Consultants on Religious Tolerance, n.d.).

In August of 1997, the Clinton administration issued guidelines that would cover civilian-branch employee of the federal government (CITE). (Ontario Consultants on Religious Tolerance, n.d.). These guidelines were under the suggestion of a number of religious institutions. These guidelines mandates that Federal employees could engage in personal religious expression "to the greatest extent possible" if it were consistent with workplace efficiency and the requirements of the law (Ontario Consultants on Religious Tolerance, n.d.). As one can see, various factions of the government were split as to what was fair to both the employee and the employer. The employer now had grounds to file against an employer who did not follow these federal guidelines. However, it only extended to a select group of employees, those working for a civilian branch of the federal government.

At the current time, the weight of cases are decided in favor of the employer. The Workplace Religious Freedom Act of 2000 ("WRFA" or "the Act") is the latest assault on the ability of employers to protect themselves from undue financial harm from the necessity to accommodate the religious needs of the employees (Baxter, 2006). The purpose of the act is to overturn two Supreme Court cases, Trans World Airlines v.Hardison, and Ansonia Board of Education v. Philbrook (Baxter, 2006).

These cases attempted to define what was meant by undue hardship. The first case argued that it would be difficult to enforce the religious freedom of employees due to the ability of the employer to use the "reasonable accommodation" clause to their advantage. The second case argued that any attempt at accommodation is sufficient to be deemed reasonable accommodation. The employee could refuse to consider alternatives. This attempt at clarification further confused the issue. Employers could resort to insubordination to justify firing when an employee refused to comply with orders regarding their work

Court decisions regarding reasonable accommodation are not consistent, ruling in some cases for the employee and in other similar cases for the employer. One cannot turn to case law for the ultimate resolution of the problem regarding what constitutes reasonable accommodation. It would be possible to support a case for either perspective using the existing body of case law regarding employer and employee rights.

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.