Imagine you are a Muslim and you have a colleague who repeatedly insists Islam is akin to “terrorism,” or you are a Catholic and forbidden to wear a cross at work. Suppose you are a Latter-day Saint and your co-worker beckons you to his desk, where he shows you an anti-Mormon website, or you are a Hindu, and a fellow worker screams that you are going to hell.
These might be insensitive workplace actions, but are they illegal?
In many of these cases, the answer is yes — but there are exceptions.
Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on religion, according to the U.S Equal Employment Opportunity Commission.
This includes “refusing to accommodate an employee’s sincerely held religious beliefs or practices,” the commission says.
That means employers should be willing to allow Christians to take Sunday off if Sabbath observance is a “sincerely held belief,” or accord Seventh-day Adventists the same privilege on Saturday. Religious garb, such as crosses on Catholics, hijabs (headscarves) on Muslim women, skullcaps on Jewish men, or turbans on Sikh men should be OK in most work environments.
“In most instances, employers are required by federal law to make exceptions to their usual rules or preferences,” the EEOC says, “to permit applicants and employees to observe religious dress and grooming practices.”
Employees are free to festoon their desks with a star of David, a Buddha, a crucifix, an Angel Moroni, a statue of Ganesh, a gilded scripture saying and any other religious symbol of their choose.
These standards apply to every organization with 15 or more employees — “unless the accommodation would impose an undue hardship (more than a minimal burden on operation of the business).”
Undue hardship is defined as an accommodation that “is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”
And there’s the catch.
When does accommodation create an “undue hardship” for an employer?
Luke Goodrich, lawyer at the Becket Fund for Religious Liberty and an adjunct professor at the University of Utah’s law school, is working on a case about this issue that is under consideration by the U.S. Supreme Court.
In Patterson v. Walgreens, Darrell Patterson, a Seventh-day Adventist, had made it clear he couldn’t work on Saturday, the Adventist Sabbath. His supervisor had agreed that others would cover any shifts that occurred on that day. It worked without a problem for a long while, Goodrich says, until Walgreens executives scheduled an emergency weekend training one Saturday and Patterson, after failing to find a substitute who could take over in his absence, opted not to attend.
Later, he asked for a guarantee that he would never have to work on Saturday, which Walgreens refused. He was fired.
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Patterson then sued Walgreens for religious discrimination. Both the district and appeals courts sided with the company, according to the lawyer. Now he’s asked the nation’s highest court to weigh in.
Walgreens argued it was an “undue hardship” to allow anyone to miss the mandatory training, even though Patterson did conduct the training on Monday, says Goodrich, author of the just-published “Free to Believe: The Battle Over Religious Liberty in America.”
But was it?
The prevailing legal standard is that “anything more than a trifling burden on the employer is enough to override an employee’s religious practices,” Goodrich says. “We will point out all the ways Walgreens could have accommodated him.”
Employers need “to take religious beliefs seriously,” he says. “Nobody should be forced to choose between his livelihood and the central tenets of his faith.”
Jonathan Lallo attends the Magna congregation of Jehovah’s Witnesses and works in the health care industry in the Salt Lake City area. His employer permits him to work a reduced schedule of 32 hours a week, he says, while still receiving benefits like medical insurance, paid vacation and unpaid leave.
His bosses do this so Lallo can meet his religious obligation to “volunteer 70 hours per month in his public ministry in his local community.”
“I really appreciate the great lengths my employer goes through ... to accommodate not only the ministry work of my wife and me, but also the other 18 Jehovah’s Witnesses that work there, too,” he writes in an email. “So while I am well aware that religious discrimination does happen in various parts of the world, I am grateful to have an employer right here in the Salt Lake area that accommodates the religious freedoms of their employees.”
The company further granted Lallo six weeks off — three weeks of vacation and three weeks of unpaid leave — to work as a volunteer installing HVAC systems and suspended ceilings during the construction of the new world headquarters of the Jehovah’s Witnesses in Warwick, N.Y.
Suryani Omar teaches Malay at Brigham Young University, which is owned by The Church of Jesus Christ of Latter-day Saints, while wearing a hijab.
“My students are returned [Latter-day Saint] missionaries, but I have never been asked to convert, nor have they ever preached to me,” Omar says. “The dean even called a colleague just to check where the prayer room for Muslims is.”
She adds: “They also make sure there’s a vegan option for me when we have events.”
Other Muslims across the country are not so lucky.
Carolyn Homer, a Latter-day Saint and a lawyer for the Council on American-Islamic Relations, says the most common employment complaints the group receives fall under these general categories:
• Dress codes that don’t permit hijabs.
• Hour/break codes that don’t permit prayer breaks.
• Requests for time off or work-hour adjustments for Jummah (daily) prayers, Ramadan/Eid, or attending Hajj (the annual pilgrimage to Mecca).
• Workers asked to sell/serve/touch alcohol/pork products.
• Employers/bosses calling Muslim workers terrorists, mocking their faith or ripping their hijabs off while yelling, “This is America, go back to your country.”
The biggest frustration for Jews in the Beehive State is getting off for Yom Kippur and Rosh Hashana, says Rabbi Sam Spector of Utah’s Congregation Kol Ami.
Christmas is a federal holiday, the rabbi says, when most workers get a day off, but it is not a holiday Jews observe because they are not Christians.
For their holidays, many of his congregants have to use vacation time.
“Every year, I have to write letters to employers, begging them to allow our people to have the time off,” Spector says, “and explaining the religious significance.”
The law forbids discrimination “when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
What about religion-based jobs that require a certain standard of behavior, based on the tenets of the company’s faith?
Utah’s predominant religion, the LDS Church, won a landmark case in 1987 — Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos — when it required all employees of the now-defunct Deseret Gym to have a “temple recommend,” attesting to their worthiness to enter one of the faith’s temples.
One longtime employee did not have a recommend and sued on the basis of religious discrimination. Ultimately, the Supreme Court ruled that the church could hire only those who adhered to the church’s standards, Goodrich says, under Title VII’s religious exemption.
But the scope of religious exemptions, the lawyer says, continues to be controversial.
Several Catholic educators in Indianapolis have been let go for entering into same-sex marriages, the lawyer says, “which is against church teaching and violated their written employment contracts.”
The cases are in trial courts right now.
“The government shouldn’t force religious groups to hire teachers and other leaders,” Goodrich says, “who disagree with and violate the core religious practices of the faith.”
Jean Hill, director of the Office of Life, Justice and Peace for the Catholic Diocese of Salt Lake City, says a person doesn’t have to be Catholic to work at one of the church’s schools or offices — Catholic Community Services, for example, has non-Catholic employees — but “you can’t speak against Catholic teaching.”
Having LGBTQ teachers at Catholic schools in Utah “has not been an issue,” Hill says. “We expect all teachers [heterosexual or homosexual] not to talk about their sex lives at school.”
A hostile environment
The EEOC emphasizes that it is “illegal to harass a person because of his or her religion.” That can include “offensive remarks about a person's religious beliefs or practices.”
Although the law doesn’t bar “simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”
Employers “may be liable not only for harassment by supervisors, but also by co-workers or by nonemployees under their control,” the commission says. “Employers should clearly communicate to all employees — through a written policy or other appropriate mechanism — that harassment such as ethnic slurs or other verbal or physical conduct directed toward any racial, ethnic, or religious group is prohibited and that employees must respect the rights of their co-workers.”
Demeaning comments about a majority faith — including Mormonism or Catholicism — are all too common, Hill says.
She previously worked as a lobbyist for her church at the Utah Legislature, where, Hill recalls, a person anonymously left anti-Catholic pamphlets in the women’s restroom at the Capitol.
But when do such actions rise to the level of hostility?
One Muslim woman in Utah had a supervisor who constantly made derogatory comments about Muslims.
The supervisor “did not know that I was a Muslim because I do not wear a hijab,” says the woman, who asked that her name not be used because it would reflect badly on the company. But she never confronted the boss for fear of reprisal.
Eventually, she left that job.
Evangelizing at the office
An employee has the right to express her faith, according to an LDS website about religious liberty, “as long as you don’t harass others or lead people to mistake your private expressions of faith for your employer’s views.”
You can “talk to co-workers about your beliefs, hang a religious picture or keep personal items at your workstation ... have personal devotionals (like reading your scriptures in the break room), or even start a voluntary prayer group,” the site says, “unless the company has job-related policies that apply the same to everyone (such as keeping desks clear of any personal items when customers can see them).”
What if a co-worker asks you not to talk to him about your religion?“You need to stop,” the site says. “Continuing could be harassment. If you’re a supervisor, be careful not to inadvertently pressure your subordinates or make them think they’ll get special treatment or access if they adopt your beliefs.”
Trouble is, the standards are “so vague,” says Eugene Volokh, a UCLA professor who specializes in First Amendment and employment law. “Evangelism that comes across as too aggressive or offensive can be actionable.”
But how much is too much? Nobody knows, he says.
For employers, trying to navigate this line can be “damned if you do; damned if you don’t.”
A business that restricts religious expression can be accused of failing to accommodate belief, Volokh says. But if it allows all expressions, some employees might accuse it of fostering a hostile work environment.
From both sides
The Rev. Steve Aeschbacher, interim pastor at First Presbyterian Church in Salt Lake City, has observed religion play out in several work environments.
He worked first as a young lawyer in a firm dominated by Latter-day Saints.
Lots of colleagues “wanted to talk to me about what was important to them,” he recalls. “I never felt pressured at all and also didn’t feel bugged by attempts to convert me. I have a faith, and this is what it is, and they left me alone.”
Next, he worked as an in-house attorney for Microsoft in Seattle, where few knew of his religious convictions — until he announced that he was planning to earn a master of divinity degree and become a minister.
“When I started telling people that I was leaving and what I was leaving for, most people would say, ‘That’s make sense,’ but some were like, ‘What? Really?’ They were surprised that I would do that, so maybe I wasn’t such a good witness of my faith.”
As a Christian, Aeschbacher has noted how different believers express their faith at work.
For some, evangelism means “buttonholing people to share their faith, putting a Bible on your desk, or a sign with a scripture verse to see if anyone asks about it.”
To others, it means avoiding all mention of faith, putting people in separate boxes, he says, “which isn’t healthy.”
It should mean embodying your faith, making it “integral to who you are, not like a suit of clothes you put on,” Aeschbacher says. “It means becoming a particularly good and trustworthy employee, where your faith blesses your work.”
In any work environment, he says, those in a religious majority “need to be aware of how they are coming across to those who are different from them.”
And those in the minority?
The pastor says, “You have to cut people some slack.”