LEGAL UPDATE: RELIGIOUS ACCOMMODATIONS
UNDER TITLE VII AND A REVIEW OF THE PROPOSED
AMENDMENTS TO PROCEDURES FOR PROCESSING
UNION PETITIONS
Presented to
Maryland Healthcare Human Resources
Association
April 16, 2014
Jeffrey J. Pargament
Pargament & Hallowell, PLLC
1776 K Street, N.W., Suite 825
Washington, DC 20006
(202) 775-0707
jpargament@pandhlaw.com
ACCOMMODATION OF RELIGIOUS
BELIEFS
• Increasing Litigation and Emphasis by EEOC
• 1,939 charges in 2000
• 3,721 charges in 2013
• March 2014 – EEOC Guidance on Religious
Garb and Grooming in the Workplace
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• Employers Must Provide “Reasonable Accommodations” Under
Title VII of the Civil Rights Act of 1964
• Employee’s religious belief must be “sincerely held”
• Lenient standard
• Difficult for employers to challenge
• Belief need not be part of a traditional organized religion
• EEOC Guidance
• Employer may request information from
employee necessary to determine whether
belief is sincerely held
• Employee’s beliefs may change over time –
therefore, past conduct by employee does not
prove new/changed beliefs are not sincere
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• Case by Case Analysis
• Notice Requirement
• EEOC Guidance
• Employee is not required to use “magic words” to request
exceptions to dress or grooming policies. Employer is
obligated to provide an accommodation (absent undue
hardship) if it is aware that religious beliefs conflict with
its policies
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• “Undue Hardship” Standard
• Accommodation not required if it would impose more than a
minimal burden on employer’s operations
• Much lower than standard of “undue hardship” under ADA
• Fact-based, case-by-case determinations
• Regular payment of premium wages for substitutes is an
undue hardship
• EEOC presumes that infrequent payment of premium wages
for a substitute, or the payment of premium wages while a
more permanent accommodation is being sought, are not an
undue hardship
• Payment of administrative costs, such as costs involved in
rearranging schedules and recording substitutions for payroll
purposes, are “de minimis” and not an undue hardship
• EEOC Guidance
• Accommodation may be unreasonable if it imposes more
than an ordinary administrative cost
• Safety, security and health concerns may justify denial of
accommodation; however, cannot rely on assumptions –
accommodation must impose actual hardship
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Most Common Situations and Possible
Accommodations
• Employer’s policies on dress or appearance
• Exceptions may be required
• Note: Safety concerns may trump duty to accommodate
• Customer preference does not justify denial of
accommodation
• EEOC Guidance
• Example – cannot refuse to permit wearing of Muslim head
covering based on customers’ disapproval
• Cannot transfer employee to position without employee contact
• Cannot require employee to cover religious
garb/markings/articles if it would violate religious beliefs
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• Employee’s scheduled work time
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Flexible Scheduling
Voluntary Substitutes or Shift Swaps
Lateral Transfers
Modified job assignments
Modified workplace policies and procedures
• Employee’s refusal to perform certain job
functions based on religious objections
• Transfer of a job task from one employee to
another
• Transferring employee to a different position.
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Illustrative Cases
• EEOC v. Red Robin Gourmet Burgers, Inc., 2005 WL
2090677 (W.D. Wash. 2005)
• Employee fired for refusing to cover his religious tattoos in
“family-friendly” workplace. Employee followed
Kemeticism, a religion devoted to the worship of the
ancient Egyptian sun god, Ra, and considered it a sin to
cover Coptic-language tattoos including name “Ra.” There
were fewer than 10 adherents of his sect.
• Employer moved for dismissal on the ground that the
employee lacked a bona fide religious belief. The Court
denied the motion and further held that there was no
undue hardship where the employee worked 6 months
with no customer complaints
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• EEOC v. Kelly Services, Inc., 598 F.3d 1022 (8th
Cir. 2010)
• Employment agency failed to refer Muslim
temporary worker for work with a printing
company. Employee refused to remove her
khimar (traditional garment worn by Muslim
women). Company cited a neutral, safety-driven
dress policy prohibiting all employees from
wearing loose clothing or headwear of any kind.
Court held policy was legitimate and
nondiscriminatory
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• EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106
(10th Cir. 2013)
• Employer refused to hire Muslim applicant who had bona fide
religious belief she had to wear a headscarf (hijab). Interviewer,
which believed the hijab was a religious garment, decided hijab
conflicted with employer’s “look” policy, which prohibited
headwear.
• Court held that employer was not liable because applicant did
not provide the employer with explicit notice that she was
required to wear hijab based on her religious beliefs, and that
she needed an accommodation
• Note:
Conflicts with EEOC Guidance. Guidance states that,
where employer believes garment is worn for religious
purposes, and that employee/applicant would need
accommodation, employer is obligated to provide an
accommodation
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• Protos v Volkswagen of America, Inc., 797 F2d 129 (3rd Cir.
1986)
• Employer liable for refusing to grant time off where it had a
crew of roving absentee relief employees who were deployed as
substitutes for absent employees; assembly line worked as well
without the employee as with her; and employer was not forced
to pay higher wages in order to fill the vacancy caused by the
employee’s absence
• Murphy v Edge Memorial Hospital, 550 F. Supp. 1185 (M.D.
Ala. 1982)
• Hospital not required to grant request for every Friday off where
staffing needs were based on patients' medical needs; there
could not be a reduction in staff without a consequent decrease
in patient care; substituting other employees would have
required the payment of overtime, a higher wage, or decreased
efficiency; and finding additional employees, over and above
the number required to meet patient needs, was almost
impossible
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• Brener v Diagnostic Center Hospital, 671 F2d 141
(5th Cir. 1982)
• Employer was not liable for denying request for time
off on Sabbath day. Employer considered methods to
accommodate request, but none were reasonable.
Hiring a substitute pharmacist would have involved
more than a de minimis cost; having the employee’s
supervisor substitute for the employee would have
decreased efficiency and increased risk to patients;
and operating without the employee would have a
detrimental impact of the pharmacy's function.
Finally, requiring other employees to trade shifts
would cause undue hardship by disrupting work
routines and a lowering morale among other
pharmacists.
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• Beadle v Hillsborough County Sheriff's Dep't,
29 F3d 589 (11th Cir. 1994)
• Employer reasonably accommodated requests for
time off where it used a neutral rotating shift
system; authorized employee swaps; provided
employee with a roster sheet listing co–workers’
schedules; and allowed employee to advertise his
need for swaps during daily roll calls and on the
department's bulletin board
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BEST PRACTICES
• Inform employees that you will make reasonable
efforts to accommodate employees’ religious
practices
• Train managers on accommodation needs and
responding to requests
• Develop internal procedures for handling religious
accommodation requests
• Assess each request individually
• Avoid assumptions about a religious belief or practice
• Once on notice of a request for accommodation,
initiate good faith efforts to accommodate –
“interactive process”
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NLRB’s “AMBUSH” OR “QUICKIE”
ELECTION RULE
• February 2014 – proposal to expedite union election
procedures
• Based on June 2011 proposal, which was withdrawn
following procedural challenges
• Proposed rule would greatly speed-up union elections
• Under current rules, elections are typically held within 6
weeks after union files petition requesting scheduling of a
secret ballot election
• After petition is filed, union and employer work out the details of
the election, resolve voter eligibility issues and communicate with
the workforce regarding pros and cons of unionization
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• New rule would result in election being held in as
few as 10 days after the filing of a petition
• Would reduce time for employers to communicate with
workforce concerning unionization
• Union, in contrast, may have been campaigning in secret
before filing of petition
• Pre-election hearing would be held within 7 days
after filing of petition, as opposed to 14 days
under current rules
• Employer would be required to raise all issues at
hearing, or forever waive them
• Post-hearing briefs would not be permitted absent
permission from the Regional Director
• Currently, parties have right to file post-hearing briefs
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• Voter eligibility issues (e.g., whether personnel are “employees” or
“supervisors”) would be deferred until after election
• Currently, pre-election hearings on eligibility are permitted where more
than 10-15% of employees are at issue
• Result – employees who may actually be supervisors (and thus ineligible
to vote), may be permitted to vote subject to challenge
• Uncertainty regarding supervisory status could impact employer’s
campaign
• Employers would be required to provide a preliminary voter list including the
names, work locations, shifts and classifications of unit members before the
pre-election hearing
• Final voter list (“Excelsior” list) due within 2 days after the election is ordered
• Current rule provides for 7 days. Final list must include names, addresses,
phone numbers and email addresses
• Current rules require disclosure only of names and home addresses
• Privacy concerns
• No right to appeal decision ordering an election until after the election is held
• Current rules permit Board review of Regional Director’s decision to
schedule an election
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CONGRESSIONAL OPPOSITION
• Two Pending Bills
• Union elections to take place no sooner than 35 days after
petition is filed
• Allow employers at least 14 days to prepare their
statement of position, and provide right to raise additional
concerns throughout pre-election hearing
• Require Board to determine appropriate bargaining unit
before union is certified, and address questions of voter
eligibility beforehand
• Give employers 7 days in which to provide Excelsior list to
union
• Excelsior list would include employee names and one
employee-selected method for contacting the employee
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