As a small business owner, you know your success depends on your employees just as much as it does on you. You want to make sure your team is happy, fulfilled and excited about their work. This can often mean being flexible to your employee’s needs. And one major need that you may have to consider? Religion.
There’s a lot of confusion about what constitutes a reasonable religious accommodation and when employers should make them. We'll clear up some of those misconceptions by explaining what reasonable religious accommodations are and how they might look in different situations. So, let’s dive in.
What Is a Reasonable Accommodation?
We’re all walking around with our own ideas about what’s reasonable and what’s not. Is it reasonable to cut in front of fifty cars in the exit lane? What if you didn’t realize the offramp was approaching? And you’re late for a doctor’s appointment. Would it be considered reasonable then?
Some of you might say yes, some of you might say no—and nearly all of us have probably done this. Clearly, in life, what's reasonable depends on many factors, but when it comes to religious accommodations in the work environment, you can generally use this rule:
A religious accommodation is reasonable if it does not cause undue hardship—financial or otherwise—to your business.
Pro tip: As far as the law is concerned, religion is defined as “...all aspects of religious observance and practice as well as belief.” Religion is how an employee defines it, and could range from more traditional religions, like Judaism, Christianity and Islam, to an individualized religion that only the employee practices. What’s important is that the religion is seriously practiced.
What Is the Federal Law for Religious Accommodation?
In the United States, reasonable religious accommodations are protected under Title VII of the Civil Rights Act of 1964.
What does this mean? On a federal level, businesses with more than 15 employees must provide religious accommodations for employees' sincerely held beliefs, so long as they are reasonable. State laws, however, may vary. For example, in California, businesses with five or more employees must adhere to laws around religious accommodations.
As we said earlier, a religious accommodation is considered reasonable if it does not cause undue hardship to your business. Otherwise, the request does not have to be honored. But what are the specific reasons (i.e. hardships) a company can cite to deny a request?
A business can deny a religious accommodation if any of the circumstances below are true:
- It is too expensive or difficult to implement. Would it cost too much money to accommodate this employee’s religious beliefs or practices? Is it going to require so much extra work on your end there just aren’t enough hours in the day to make it happen? For example, you may have to pay another employee overtime regularly to cover the shift left open or make big changes to your office space to accommodate the request. You might have heard of this referred to as “more than de minimis” cost…which essentially means a request can be denied if it imposes more than small or ordinary costs.
- It would significantly impact your finances and/or number of employees you need to run your business. Will this employee’s religious accommodation greatly affect your ability to bring in revenue? Is there a headcount you need to maintain to operate effectively that you can’t make up for in their absence? For example, if this is the only employee that can work in your shop on a Friday—and absolutely no one else can cover for them—then you could deny a request from that employee to take Friday off for religious reasons. Why? Because that would significantly affect the finances of your business since you would essentially have to close your shop for an entire day.
- You’d have to change company-wide structures and functions. Will the religious accommodation alter the structures you have in place for your business to run smoothly? For example, if you need to change company-wide policies on lunch, breaks, paid time off or other structural policies to support a single employee’s religious practices—then the request can be turned down.
- The employee is located in a region where different laws apply. If you operate under a parent company, have various sites, or have multiple locations, you’ll need to follow the rules for the region, state and country each site is located in. For example, if you have an employee in the Netherlands that asks for a religious accommodation, you’ll need to consider their regulations, rather than those of the United States. Where the employee physically completes the work is the deciding factor for any employment law that applies to them.
Keep in mind: Whatever the request is, you must make a good-faith effort to accommodate it. So, don’t just ignore that email from a team member asking for time off for a holiday. See if you can make that employee’s request happen—and if you can’t—make sure to explain the efforts you undertook and why you can’t approve the request.
What Is an Example of a Workplace Religious Accommodation?
Every accommodation must be considered individually, and with your particular business’s needs in mind. However, if you’re looking for a baseline to use, here are a few examples of accommodations made for religious purposes:
- Schedule changes
- Lateral transfers
- Revising certain policies, like dress codes and requirements for grooming
- Prayer breaks
- Following an employees’ dietary restrictions
- Breaks for mourning periods
- Time off for holidays
Common Religious Accommodation Scenarios
This might all make sense on paper, but how does this actually work out in real life? When it comes to religious accommodations, you usually have to tackle them on a case-by-case basis. Let’s take a look at some common scenarios to help you think through situations that may arise at your company.
Let's say you have a one-hour lunch policy. But you have an employee who requests to take off between noon and 2 p.m. on Fridays for midday prayers. Do you have to honor the requested accommodation? In short: no. You'd have to create a new two-hour lunch policy and you can't afford to allow every person on your team to take such a long lunch. So, according to Title VII, this wouldn't be reasonable.
Here’s another example: An employee’s proposed accommodation is simply a shift in their lunch hour. Instead of taking lunch at noon, they’d like to take off from 11:30 a.m. to 12:30 p.m. Since you have people who can fill in for them (i.e. not everyone wants or needs to take lunch at the same time), then it's reasonable to allow that employee to take lunch at a slightly earlier time slot. After all, adjusting work schedules usually comes with the territory of being a small business owner. This particular accommodation would be reasonable, since flexible scheduling poses no hardship on your company.
Now this is where things get a little tricky. You have a certain expectation that employees will dress professionally or wear the uniform that you provide them. But what if they can't meet your company's standards for dress due to religious reasons? Or they want to wear something on the basis of religion that you’re worried will drive customers away? Can you be accused of religious discrimination by insisting that employee wear certain clothes?
According to the Equal Employment Opportunity Commission (EEOC), the federal government agency that enforces civil rights laws against workplace discrimination: In most cases, businesses are required by federal law to make exceptions to their usual rules or preferences so workers can observe religious dress practices unless, doing so would—once again—pose an undue hardship on the business. Remember, undue hardship is considered a significant expense or structural change to your company.
If you do indeed accommodate an employee, that doesn’t mean their co-workers can disregard your dress code for personal preferences. You've made this one accommodation based on religious needs, and unless other employees have the same exact needs—and articulate them—they still have to follow your dress code, even if they prefer not to.
Let’s say you have an employee, Katie, who adheres to a modest dress code, based on her religion. She’s hired to work at the front desk of your gym, and your manager has asked her to wear tennis shorts and a polo shirt with the gym’s logo. Katie asks permission to wear a long skirt, with the required shirt and a light sweater over it. Since Katie’s sincerely held religious beliefs come into conflict with your gym’s dress code, and it would not impose any significant administrative cost to accommodate her, you are required to indeed allow Katie to wear the longer skirt and sweater.
Now, let’s say Katie has a second job—assembling parts on a factory floor. At this jobsite, she’s expected to wear pants and long sleeves, to maintain workplace safety standards. Katie, however, asks to wear a long skirt and sweater, as per her religious observance. Would her employer be breaking any laws by denying this request? After all, it’s a safety concern. Unless Katie’s boss has substantial proof that wearing pants definitely means higher safety standards, they must honor Katie's request, since it doesn't require any sort of administrative burden on them. If, however, they have documented proof that pants are absolutely required in order to provide a safe working environment, then they’d have a case for denying Katie's request here.
Hijabs and Yarmulkes
People often wonder if wearing a hijab, yarmulke or other religious headscarf would be considered a reasonable religious request. Yes, in most instances they would be considered reasonable. Why? Because there are very few instances where a company’s finances or administrative costs and structures would be affected by someone wearing a head covering.
In fact, in 2015, the Supreme Court ruled on the right for women to wear a hijab in the workplace in the case against Abercrombie & Fitch. At the time, the store decided not to move forward with a job candidate, Samantha Elauf, because she wouldn’t meet their “Look” policy. Elauf wore a religious headscarf. Even though Elauf hadn’t explicitly asked for this accommodation, the fact that Abercrombie & Fitch didn’t hire her based on it, violates Title VII.
Justice Anotin Scalia said, “…an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision” (to prove they violated Title VII). An employer is violating Title VII “…even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”
In short: Head coverings typically should be accommodated unless there's a clear safety issue, however it would be difficult to argue for any sort of denial.
The same idea applies here as with all the other religious accommodations we discussed. If it will dramatically affect your finances or how your company runs—you can deny the request. If, however, you can find employees to fill in for those who need to take off for a religious holiday, then the request is reasonable. However, if every single employee is requesting to take that same holiday off—and you need to stay open—then it’s within your rights to deny some of your workers’ requests to take that holiday off.
How Do Employees Ask for Religious Accommodations?
Employees can ask for religious accommodations in a variety of ways—including by email, in person, during a virtual meeting or through any other form of communication. Also, an employee doesn’t need to use the term “religious accommodation” for the request to be considered as such. If the employee is asking for something based on a religious reason, then it is technically a religious accommodation. We recommend having a policy in place that instructs employees how to ask for religious accommodations, so that the process is clear and streamlined.
Can I Ask My Employees about Their Religious Beliefs?
When an employee approaches you to talk about a religious accommodation, don’t be scared to make it an interactive process. If you have questions about your employee’s religious beliefs, it’s okay to ask them. After all, you are permitted to assess whether their religious practices are sincerely held (i.e. your employee is genuinely practicing that religion).
If you are skeptical about whether an employee is sincere about their religious beliefs, you can ask for:
- Written materials highlighting the employee’s beliefs
- The employee’s first-hand explanation of their beliefs
- Statements, affidavits or other documents describing beliefs, including when the employee started practicing the religion and when/how they’ve followed it
- Statements, affidavits and other documents from witnesses to the employee’s beliefs (like religious leaders, neighbors, friends, etc.)
Some questions you can use to start this conversation:
- What religious accommodation do you need?
- What is the religious belief that is incongruent with our policies?
- Here's the business need for our policy. Is there an accommodation that you think might work that would still allow us to achieve our goal?
Have some common sense and don’t ask loaded questions. If you have an employee who celebrates the Sabbath on Tuesdays, it wouldn’t behoove you to say, “Do you really think the right Sabbath is on Tuesday?” Not only does that give the employee the impression you’re judging them, but it might discourage them from approaching you with important or sensitive matters at the company in the future. Focus on the task at hand without reflecting judgment on the religious or spiritual belief. Ask questions with an open mind, looking for every way to accommodate the religious or spiritual need while also meeting business goals.
Make a Process for Religious Accommodation Requests
The best way to make sure you’re covered if an employee requests a religious accommodation is to develop a process for exactly that. Here’s what we recommend:
- Create a religious accommodations policy, which could be as simple as detailing the process employees should follow to file their request, and what you’ll do on your end to consider it and respond.
- Develop a form that employees complete as a written request for an accommodation (i.e. name, date, accommodation requested or proposed alternative accommodations, acknowledgement of policy, manager/leadership review/approval, etc.).
- When reviewing accommodations, consider operational and financial impact and document that on the request.
- File the request (when approved or not) in the employee's personnel file.
Cover All Your Bases When an Employee Requests a Religious Accommodation
Regardless of whether you follow these steps or not, make sure to document everything. Did the employee write you an email? Save it. Did you get a text? Screenshot it. Make sure this info is easily accessible, so if anything is ever disputed, you’ll be able to show all factors that went into considering the accommodation.
Also, consider creating a complaint and investigation process for people who feel they’ve been discriminated against, or for employees who witness and want to report any discrimination they see. That way, you can proactively deal with any issues before they become bigger problems.
When in doubt, make sure to double check with a lawyer specializing in employment law before denying or approving any requests you’re uncertain about. In the end, you’ll be happy you took the time to do your due diligence, especially if it saves you time and lawyer fees down the line.