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May 18, 2011
Religious Accommodations and Undue Hardship: What’s the Threshold?

As tricky as employers may find it to grant religious accommodations, the standard for what constitutes undue hardship is considerably lower than that for failing to accommodate a disability, advises Attorney Regina Petty, a partner in Fisher & Phillips’ San Diego, California, office.

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For example, a printing plant consistently prohibited employees from wearing loose-fitting clothing or anything on their heads that might get caught in the machinery. A Muslim applicant asked for a religious accommodation to wear her khimar, a head scarf. But both a trial court and an appeals court agreed that making that exception would be an undue hardship for the prospective employer.

Why is the bar higher for accommodating a disability? Said Petty, “I think it’s because an employee can’t do anything about a disability; just as with race, the individual has no choice in the matter. But most major religions in the U.S. offer worshippers one or more alternatives if they are unable or unwilling to abide by the faith’s specific requirements. Since there’s an element of choice for employees, employers needn’t go as far to accommodate a religious belief as to accommodate a disability.”

Whether an accommodation will be seen as an undue hardship will depend heavily on the size of the company and what it does. For example, a nursing home that provides patient care 24/7 might be permitted to require nurses and nursing assistants to work every other weekend—and thereby refuse to hire someone whose religion bars him or her from working on any Saturday or Sunday. Petty offers a variety of recent sample cases:

  • EEOC sued a retailer that refused two written requests not to schedule an employee for Sunday work.
  • EEOC also sued an employer that refused to accommodate an employee who said his Santeria religion barred him from submitting to a saliva drug test.
  • An ambulance company paid $21,500 a former employee who was fired because his Jehovah’s Witness faith didn’t allow him to participate in a community Halloween carnival.
  • A security company settled an EEOC suit by paying a former employee $49,556. She had been fired for refusing to remove her Mennonite head scarf while working as a guard.

Petty also points out that the definition of religion in Title VII of civil rights law is quite broad; it includes sincerely held theistic beliefs that are new, uncommon, or not part of a formal church, as well as moral or ethical beliefs about what is right and wrong. Can there be “a religion of one”? Definitely, says Petty. That’s why she advises against questioning an employee too closely on the origins or elements of his or her religion—much less requiring some sort of proof from the religious body.

For more on accommodating workers’ religious beliefs, read:

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