Religious belief discrimination is unequal treatment based on religion, including religious practices or observance. Religious discrimination includes unequal treatment because of religion, neutral rules which have an adverse effect on those with religious beliefs, and harassment based on religion. Harassment includes creating or maintaining a hostile work environment against religion.
Like disability discrimination, an employer’s failure to reasonably accommodate a religious practice is considered discrimination.
Religious discrimination can also include treating someone differently because that person is associated with an individual of a religion or because of his or her connection with a religious organization.
Note that both labor unions and employers are covered by religious discrimination laws.
What Is a Religion?
The legal definition of religion has changed over time and there are still differences between states. The Equal Employment Opportunity Commission, the regulatory agency charged with upholding the federal government’s anti-discrimination laws, defines religion as moral or ethical beliefs as to what is right or wrong which are sincerely held with the strength of traditional religious beliefs.
Courts often favor a more limited definition than the one utilized by the executive branch. The most popular judicial examination of whether a belief is religious examines whether the nature of the belief is consistent with the subject matter covered by other religions, whether the religious beliefs are comprehensive compared to traditional religions and whether the religion has any formal, external or surface signs that are similar to judicially recognized religions.
Although religions are defined by how similar they are compared to “traditionally” recognized religions, the judicial inquiry is whether the religious beliefs are religious in nature, not whether they are real, truthful or orthodox. The goal of determining whether a belief or practice is religious is to toss out frivolous lawsuits, such as the case of the man who claimed that eating cat food was central to his faith.
What Religious Practices do Employers Have to Honor?
To respect the religious practices of an employee within the bounds of the law, an employer must reasonably accommodate the employee’s practices. Some common examples of religious practices in the workplace that an employer must accommodate are:
- Religious holidays: the employer must allow a flexible work schedule where an employee has the ability to take off from work for significant religious holidays and allow the employee to make up for missed time.
- Prayer in the workplace: as long as the procedure is reasonable, an employer must allow an employee to pray in the workplace. However, any type of prayer or other religious practice that would unreasonably interfere with work, such as clearing out a whole room of employees so that one employee can pray alone, does not have to tolerated by the employer.
- Dress code: an employer cannot prohibit an employee from wearing various articles of clothing such as a religious dress or head coverings. Nor can an employer force an employee to trim his hair or a beard if they are part of the employee’s religious observance.
What Defenses Do Employers Have To Religious Discrimination Claims?
Employers have a number of defenses if accused of religious belief discrimination. They include, but are not limited to:
- Employee Practice or Belief Is Not Religious in Nature – Although this has been partly covered above, it is worth mentioning again that only religions are covered. If the belief is mostly political or social, then it is not covered. For example, a church which espouses white supremacist views is considered religious. The Ku Klux Klan, on the other hand, is not.
- Employer Was Not Informed Practice Was Religious – the employee has the duty to inform the employer that a practice is connected with the employee’s religious beliefs. If an employee fails to do so, there is no case.
- Undue Hardship – An employer who can show that accommodating a religious practice would harm the employer’s business is exempt. Harm can mean not only substantial loss of money, but also substantial burden the employer’s ability to conduct his business. For example, proselytizing to co-workers or clients who find it unwelcome would hinder an employer’s business to the point where it is an undue hardship.
- Religious Institution Exception – Religious education institutions are exempted. Religious associations, organizations, or corporations are exempted if the employee is connected with the activities of the association, organization or corporation’s religious beliefs. An institution is considered religious if it is owned, supported, controlled or managed, in whole or in part, by a particular religion.
- Minster Exception – Members of the clergy are exempted from religious discrimination laws. The title is not important; if the employee’s primary duties are to teach, spread the faith, govern the religion, or supervise rituals, than the employee is considered a “minster” and is exempt from the religious discrimination laws. This includes lay employees whose jobs are important to the spiritual and pastoral mission of the religious institution.
- Establishment of Religion – This defense only applies to public employers. Public employers, employers who are part of a government, be it local, state or federal, cannot violate the First Amendment prohibition on establishing a religion. Public employers are quick to raise the issue of the establishment clause when faced with a religious practice claim, since the two religious clauses of the Constitution often contradict the other.
What If My Employer Does Not Allow Me to Practice My Religion at Work?
If your employer forbids you from observing your religion at work, you may be the victim of religious discrimination. An experienced employment lawyer can help you determine whether your employer is obligated to allow your religious practice at work. An employment lawyer can also help you seek damages if you chose to sue for religious discrimination.