Examining the Duty to Provide Religious Accommodations

Posted on 09-13-2016

By: Peter T. Shapiro, Lewis Brisbois Bisgaard & Smith LLP.

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination based on an individual’s religion, and also requires employers to furnish reasonable accommodations for an individual’s religious practices or beliefs unless the accommodation imposes an undue hardship on the employer’s business operations.

THIS ARTICLE ANALYZES THE OBLIGATIONS IMPOSED on both the individual and the employer when an employee or an applicant requests an accommodation for his or her religious beliefs, specifically addressing the following religious accommodation issues:

Title VII’s Broad Definition of Religion

Title VII adopts a very broad definition of religion and specifically requires employers to accommodate employees’ religious beliefs:

The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
42 U.S.C. § 2000e(j).

According to the Equal Employment Opportunity Commission (EEOC), Title VII’s definition of religion extends not only to traditional, organized religions, such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also encompasses sincerely held religious beliefs that are “new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” See EEOC Compliance Manual § 12-I(A)(1).

Title VII’s Test for Whether a Set of Beliefs Is a Religion

An individual’s set of beliefs will meet Title VII’s definition of a religion if they are sincere, meaningful, and occupy a place in the life of an individual similar to that filled by organized religions’ belief in a supreme being. Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444 (7th Cir. 2013) (quoting U.S. v. Seeger, 380 U.S. 163, 165-66 (1965)). A belief in some form of deity is not required for Title VII protection, as reflected by the courts’ recognition that atheism is a religion. Section 12 of the EEOC Compliance Manual states that religion under Title VII includes both theistic beliefs and practices and non-theistic moral and ethical beliefs. See EEOC Compliance Manual § 12-I(A)(1).

Most courts apply a two-factor test to determine whether a set of beliefs is a religion in the context of Title VII’s accommodation requirement:

  • The belief necessitating the accommodation must actually be religious in the individual’s own scheme of things.
  • The belief must be sincerely held by the individual.

See, e.g., Van Koten v. Family Health Management, 955 F. Supp. 898, 902 (N.D. Ill. 1997) (citing Redmond v. GAF Corp., 574 F.2d 897, 900 n.12 (7th Cir. 1978)).

Whether the Beliefs Are Religious

The EEOC’s test—which is similar but not identical to the above-outlined test applied by most courts—sheds some light on what beliefs are religious for purposes of Title VII. The EEOC defines religious beliefs to include “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” EEOC Compliance Manual § 12-I(A)(1). See 29 C.F.R. § 1605.1.

Title VII’s broad definition of religion leads many courts to resolve disputes in favor of coverage. As a result, the grounds on which an employer can challenge an individual’s religious beliefs are typically very narrow.

Religious beliefs typically involve concerns about life, purpose, and death, and not social, political, or economic philosophies. The following are a few examples of how courts have addressed whether particular beliefs meet the definition of religion:

Whether an individual’s beliefs meet Title VII’s definition of religion is a fact-specific inquiry that employers must address on a case-by-case basis.

Whether the Beliefs Are Sincerely Held

Determining whether an individual’s beliefs are sincerely held requires a delicate balance between questioning the sincerity of an individual’s beliefs and ensuring that the individual’s beliefs meet the requirements of a religion under Title VII. This question of sincerity is fundamental because, if the individual cannot show that the beliefs are sincerely held, the employer is not required to provide an accommodation. Courts have repeatedly held that Title VII does not require an employer to accommodate a request that is based on personal preference and not a sincerely held religious belief. Thus, it is acceptable for an employer to question the validity or sincerity of the individual’s religious beliefs by showing the individual has acted in a manner contrary to his or her religious beliefs in the past.

Of course, that an individual has not always sincerely held a particular religious belief or followed certain observances does not mean that he or she cannot do so in the future, especially where the individual can show that the change is due to a conversion or deepening in his or her faith.

Accommodation Requirement Does Not Extend to Personal Preferences

The following are examples of courts finding that the employer did not violate Title VII when it denied the individual’s requested accommodation because the request was based on personal preferences and not sincerely held religious beliefs:

  • Exceptions to grooming policies. Title VII does not require an employer to make exceptions to its work rules because the individual objects on less than credible religious grounds. In Hussein v. Waldorf Astoria, 134 F. Supp. 2d 591 (S.D.N.Y. 2001), the court rejected the employee’s objection to the employer’s grooming policy requiring employees to be clean shaven because the employee never wore a beard in the prior 14 years of employment, never explained why his religion prevented him from shaving, and shaved his beard within three months. Id. at 596-97.
  • Objection to union membership. An employee objected to the requirement that he join a labor union when his faith (Seventh-Day Adventist) prohibited union membership. The appellate court held that the employer did not have a duty to accommodate because the employee acted in a manner contrary to his professed religious beliefs based on the following evidence as to the sincerity of the claimed religious beliefs: (1) the employee lied on his employment application, (2) he did not object to union membership until after he rejected the union’s accommodation of his specific objections, (3) he was divorced, (4) he took an oath before a notary upon becoming a public employee, and (5) he worked five days a week (instead of the six required by his faith). EEOC v. Union Independiente De La Autoridad De Acueductos Y Alcantarillados De P.R., 279 F.3d 49, 56-57 (1st Cir. 2002).
  • Time, place, and manner of the accommodation. An employer may generally deny an employee the right to take leave (either paid or unpaid) or to prepare for religious observances unless the individual’s religion requires that a particular observance take place at a particular time, location, or manner. Tiano v. Dillard Dep’t Stores, 139 F.3d 679, 682-83 (9th Cir. 1998). In Tiano, the Ninth Circuit ruled that Title VII does not protect an employee who felt compelled to leave her job to make a religious pilgrimage during an employee vacation blackout period. The court found that there was no conflict between the religious belief and the employment duties because it was the employee’s decision—not compelled by the practices of her religion— to make the pilgrimage at that particular time rather than waiting until after the employer’s blackout period. Id. See also Dachman v. Shalala, 9 F. App’x 186, 192 (4th Cir. 2001); Wessling v. Kroger Co., 554 F. Supp. 548, 552-53 (E.D. Mich. 1982).

Notice Requirement

Notice is a critical element of an employer’s obligation to provide a religious accommodation, as the obligation does not arise until the employer has notice of the individual’s need for the accommodation. The burden is generally on the employee or applicant to inform the employer of the religious nature of a conflict with a work rule and of the need for an accommodation. Thomas v. National Association of Letter Carriers, 225 F.3d 1149, 1155-56 (10th Cir. 2000). Knowledge that an individual has strong religious beliefs is generally not enough to put an employer on notice of the individual’s need for an accommodation. Chalmers v. Tulon Co., 101 F.3d 1012, 1020 (4th Cir. 1996).

There is an exception to the general rule that mere knowledge of the beliefs does not trigger the duty to accommodate where the employer has particularized, actual knowledge of the need to accommodate the individual’s religious beliefs. Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993). For example, one district court found that the employer had sufficient notice where, when considering an applicant for a pharmacist position, the district manager spoke to a job reference that advised the manager that the applicant had previously refused to sell condoms because of his religious beliefs. Hellinger v. Eckerd Corp., 67 F. Supp. 2d 1359, 1363 (S.D. Fla. 1999).

Generally, to give the employer notice, an individual only needs to provide enough information about his or her religious beliefs to permit the employer to understand the nature of the conflict between the individual’s religious practices and the employer’s job requirements. Heller, 8 F.3d at 1439.

However, with respect to a job applicant’s disparate treatment claim, the U.S. Supreme Court has held that an employer that acts with the motive to avoid the obligation to provide an accommodation may violate Title VII even if the employer has no more than an “unsubstantiated suspicion” that the individual requires an accommodation. Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86, 575 U.S. 2015 U.S. LEXIS 3718, at *8, 135 S.Ct. 2028 (June 1, 2015).

The Supreme Court made clear that a job applicant will prevail on a disparate treatment claim if his or her need for an accommodation was a motivating factor in the employer’s refusal to hire the applicant, regardless of whether the employer had actual knowledge of the employee’s need for an accommodation. Id. at *8-9.

Duty to Engage in the Interactive Process

Once an individual provides an employer with notice of the need to accommodate a particular religious practice or belief, both the employer and the individual have an obligation to engage in an interactive process to determine whether an accommodation is possible. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986). The individual has an obligation to identify those employment practices or rules that interfere with his or her religious belief so that the employer can assess whether an accommodation is available. The employer then has the obligation to consider—in good faith—whether an accommodation is possible and whether such accommodation poses an undue hardship to its business operations.

An employer is not required to offer an individual his or her preferred accommodation. All an employer needs to do is offer a reasonable accommodation; once the employer does so, the employer has satisfied its obligations under Title VII. An employer is not required to show that the offered accommodation is the best accommodation or that an alternative would be worse or more of a hardship.

Definition of Reasonable Accommodation

A reasonable accommodation is an accommodation that eliminates the conflict between the employment requirements and the individual’s religious beliefs. Title VII does not require the employer to satisfy all of the individual’s requests; it only needs to eliminate the conflict with the individual’s religious beliefs. In Ansonia Board of Education v. Philbrook, 479 U.S. 60 (1986), the U.S. Supreme Court held that Title VII does not require an employer to grant the employee the particular accommodation he or she requests, because any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. In other words, the employee may not be entitled to “the most beneficial accommodation.” The Court stated:

By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. The employer violates the statute unless it “demonstrates that [it] is unable to reasonably accommodate . . . an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.”
42 U.S.C. § 2000e(j).

Id. at 68. Of course, the accommodation offered must be reasonable. Lewis v. New York City Transit Auth., 12 F.Supp.3d 418, 442-45 (E.D.N.Y. 2014).

A proposed accommodation is not reasonable if it only eliminates part of the conflict and a full accommodation would not pose an undue hardship. For example, where an individual’s religious beliefs prohibit the individual from working from sundown Friday through sundown Saturday, the employer will not satisfy Title VII if it only offers to avoid scheduling the individual for Saturday (but not Friday night) shifts. An accommodation is also unreasonable if it requires an individual to accept a reduction in pay or loss of benefits if there is an alternative accommodation that does not require the individual to do so. Baker v. The Home Depot, 445 F.3d 541, 546 (2d Cir. 2006) (“an offer of accommodation may be unreasonable ‘if it cause[s] [an employee] to suffer an inexplicable diminution in his employee status or benefits’”).

Ultimately, whether a proposed accommodation is reasonable is a fact-specific question and employers should approach each request for accommodation on a case-by-case basis. Employers that refuse as a matter of firm policy to consider certain types of accommodations or adopt policies that do not provide for flexibility only invite potential failure to accommodate claims.

Examples of Reasonable Accommodations

Examples of reasonable accommodations include:

  • Flexible scheduling. Reasonable accommodations often involve flexible arrival or departure times, unpaid leave, flexible break times during the work day, use of lunch period as work time in exchange for early departure, staggered work hours, or allowing the employee the make up lost time due to religious observances.
  • Voluntary substitutes or shift changes. Allowing employees to swap schedules, exchange shifts, or find a substitute to fill their scheduled work time often meet the reasonable accommodation requirement.
  • Lateral transfer or change of job assignments. Employers should consider whether they can transfer the employee to another comparable position or limit the job duties so that they do not conflict with the employee’s religious beliefs or practices, provided that this accommodation would not cause an undue hardship.
  • Payment of union dues to charitable organization. Where the individual’s religious beliefs prohibit membership in a labor union, most employers and unions permit the individual to choose a charitable organization to which it can donate an amount equivalent to the union dues.
  • Providing space to pray. Where the individual’s religious beliefs require prayer during the work day, employers satisfy the reasonable accommodation requirement by providing a place to pray, either during work or break time.
  • Exceptions to uniform requirements or dress codes. Unless doing so poses an undue hardship, employers should make exceptions to dress codes or uniform requirements that conflict with an individual’s religious beliefs. For more detail on this issue, please see the sections below on Dress Codes and Uniform Policies; and Grooming and Personal Appearance Policies.

Offering Use of Vacation Time for Sabbath Observance as a Reasonable Accommodation

One issue on which courts have reached conflicting results is employers’ practices of offering to accommodate the individual’s requirement for Sabbath observance by offering to allow the use of vacation time. Compare Kilpatrick v. Hyundai Motor Manufacturing Alabama, LLC, 911 F. Supp. 2d 1211, 1217–18 (M.D. Ala. 2012) (summary judgment denied because court could not conclude that allowing the plaintiff to use his vacation and personal days was a reasonable accommodation as a matter of law); and Jacobs v. Scotland Manufacturing, Inc., 2012 U.S. Dist. LEXIS 85826 (M.D.N.C. 2012) (denying employer’s summary judgment motion) with Guy v. MTA New York City Transit, 2012 U.S. Dist. LEXIS 138526 (E.D.N.Y. 2012), report adopted, 2012 U.S. Dist. LEXIS 138523 (E.D.N.Y. 2012) (holding that allowing the plaintiff to use paid vacation and unpaid personal days to miss work on his Sabbath was a reasonable accommodation as a matter of law). This appears to be an evolving issue which will likely be the subject of further litigation, which may result in the determination of guidelines for employers navigating this mine field.

Undue Hardship

Title VII does not require an employer to accommodate an individual’s religious beliefs where the accommodation would impose an undue hardship on the employer’s business operations. According to the U.S. Supreme Court, the employer must show that the accommodation would impose “more than a de minimis cost” or burden. Trans World Airlines v. Hardison, 432 U.S. 63, 84 (1977). There, the Court held that requiring an employer to deviate from a seniority system in its collective bargaining agreement to allow an employee to have Saturdays off to observe the Sabbath would constitute an undue hardship.

While the concept of undue hardship is a bit nebulous, both the EEOC and courts are clear that an accommodation imposes an undue hardship where it requires “more than a de minimis cost.” 29 C.F.R. § 1605.2(e). Whether a cost is de minimis depends on the overall size and operating cost of the employer and includes both economic costs (such as payment of overtime compensation to a substitute) and non-economic costs (such as compromising the safety of the workplace). Generally, the EEOC does not consider administrative costs or the infrequent payment of premium wages (such as overtime compensation) to a substitute employee to impose an undue hardship.

Note that it is more difficult for an employer to show an undue hardship under the Americans with Disabilities Act (ADA) than for a proposed religious accommodation under Title VII. Under the ADA, undue hardship occurs when the proposed accommodation imposes a significant expense or difficulty (as opposed to a de minimis cost under Title VII) when factors such as an employer’s size, financial resources, and the nature and structure of its operation are considered. The Title VII test allows the employer greater leeway.

Effect on Coworkers

Seniority Systems and Collective Bargaining Arrangements

The cost of an accommodation to an employer is often less of a consideration than the impact an accommodation would have on an individual’s coworkers. The U.S. Supreme Court has made clear that an accommodation that deprives another employee of a job preference or benefit imposes an undue hardship. TWA v. Hardison, 432 U.S. 63, 84 (1977) (holding that an accommodation that would have required the employer to carve out an exception to a seniority system imposed an undue hardship). Employers are not required to make exceptions to seniority systems or collectively bargained arrangements to accommodate an individual’s religious beliefs.

Disruption to Coworkers

A proposed religious accommodation may also pose an undue hardship where it causes a disruption for an employee’s coworkers. Wilson v. U.S. W. Commc’ns, 58 F.3d 1337 (8th Cir. 1995). In Wilson, the court found that an employer did not have to accommodate an employee whose religious beliefs required her to wear a graphic anti-abortion pin that made her coworkers upset and caused coworkers’ productivity to decline. Id. at 1342, n.3. Similarly, an accommodation that would require coworkers to cover an employee’s shifts can cause an undue hardship where it disrupts work routines and the perceived favorable treatment negatively affects morale. Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 147 (5th Cir. 1982).

Safety Concerns

Safety concerns are highly relevant when considering whether a proposed accommodation imposes an undue hardship. Employers are not required to subordinate safety concerns to accommodate an individual’s religious beliefs. Accordingly, courts frequently side with employers where the employer has a legitimate safety concern. For example:

Dress Code and Uniform Policies

To substantiate an undue hardship caused by exceptions to dress code and uniform policies, employers need specific and credible evidence of the expense or hardship that the exception would cause. For example, an employer that presents objective evidence of direct monetary costs and operational burdens that a requested accommodation would impose should be able to defeat the employee’s claim that the employer unreasonably denied the requested accommodation. E.g., EEOC v. Thompson Contracting, Grading, Paving, and Utilities, Inc., 499 F. App’x 275, 281–85 (4th Cir. 2012) (summary judgment affirmed dismissing a dump truck operator’s claim that the employer failed to accommodate his request to not work from sunrise to sunset on his Saturday Sabbath, rejecting the contention that the employer should be required to create a pool of substitute drivers to cover plaintiff’s route).

Hypothetical hardships based on unproven assumptions will not usually support an undue hardship determination. The employer’s conclusion that granting a single exemption might encourage other employees to request an exception— essentially a slippery slope argument—will almost never support the denial of an accommodation. For example:

However, courts will uphold employers’ decisions not to allow exceptions to dress code policies when they can show a true undue hardship, such as legitimate safety concerns.

For example:

  • Where a manufacturer of large and small metal parts refused to make an exception to its “pants only” policy for a female employee whose religious beliefs prohibited her from wearing pants (as opposed to modest skirts or dresses), the fact that the policy was designed to reduce exposure of skin to sharp metal parts and risk of loose clothing getting caught in machinery or parts on the production floor persuaded the court to rule in favor of the employer. EEOC v. Oak-Rite Mfg. Corp., 2001 U.S. Dist. LEXIS 15621, 35-36 (S.D. Ind. Aug. 27, 2001).
  • Where a private correctional facility refused to make an exception to its dress code policy to allow Muslim employees to wear a khimar (a head covering or veil) because of concerns that a khimar could be used to smuggle contraband into the prison or could be used as a strangulation device in a conflict with an inmate, the Third Circuit ruled the employer’s safety concerns outweighed the employees’ religious beliefs. EEOC v. Geo Group., Inc., 616 F.3d 265, 273-75 (3d Cir. 2010).

Grooming and Personal Appearance Policies

Employers are usually not required to make exceptions to grooming and personal appearance policies for religious reasons. Courts recognize that employers that serve the public have a legitimate interest in upholding grooming standards for employees who regularly interact with the public, so as to present a workforce to its customers that is reasonably professional in appearance. Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 135 (1st Cir. 2004). For example:

  • Where a hotel denied a banquet waiter the right to work a shift where he presented with a noticeable beard in violation of the hotel’s no-beard policy and claimed that his religion (Muslim) prevented him from shaving, the court held that the employer was not required to accommodate the employee. Hussein v. Waldorf Astoria, 134 F. Supp. 2d 591, 599 (S.D.N.Y. 2001).
  • Where a retailer denied an employee’s request to wear facial jewelry in accordance with her membership in the Church of Body Modification and in violation of the employer’s personal appearance policy that prohibited all facial jewelry, the court sided with the company based on the company’s right to control its public image. Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 134-37 (1st Cir. 2004).
  • Where a restaurant declined to consider a Sikh applicant for a general manager position based on the applicant’s advice that his religion forbad him from shaving his beard to comply with the restaurant’s grooming standards for managerial employees, the court concluded that “cleanshavenness is a bona fide occupational qualification for a manager of a restaurant.”EEOC v. Sambo’s of Ga., Inc., 530 F. Supp. 86, 91 (N.D. Ga. 1981).

When dealing with personal appearance and grooming policies, employers must be careful to engage in an interactive process to determine whether there is any accommodation that would eliminate the conflict with the individual’s religious beliefs. In some cases, there may be a reasonable accommodation that eliminates the conflict, but still complies with the spirit of the employer’s personal appearance and grooming policies.

The Evolving Landscape of Dress Code and Grooming Policies and Other Religious Accommodation Issues

Potentially, as the 21st century advances, changing societal norms may result in rulings more favorable to employees with respect to rigid grooming and attire policies, and potentially as to other accommodation issues. Already, courts have issued decisions that suggest accommodation may be appropriate with respect to female Muslim employees who need to wear hijabs despite the employer’s stated concerns, such as the image it seeks to present to the public. See Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86, 575 U.S. ___, 2015 U.S. LEXIS 3718, at *8, 135 S.Ct. 2028 (June 1, 2015). See also Muhammed v. N.Y. City Transit Auth., 52 F. Supp. 3d 468, 479-85 (E.D.N.Y. 2014) (denying an employer’s summary judgment motion with respect to a claim that the employer’s transfer of an employee to work at a bus depot did not reasonably accommodate her religious requirement to wear khimar); United States v. N.Y. City Transit Auth., 2010 U.S. Dist. LEXIS 102704, at *61-63 (E.D.N.Y. Sept. 24, 2010) (denying an employer’s motion for summary judgment with respect to a challenge to the employer’s prohibition of headgear such as turbans and khimars). Due to rapidly changing developments regarding religious accommodation issues, it is essential to consistently monitor court decisions in this area.


Peter T. Shapiro is a partner in the New York, New York, and Newark, New Jersey, offices of Lewis Brisbois Bisgaard & Smith LLP. Mr. Shapiro’s practice focuses on the defense of employment discrimination, non-compete, wage and hour class and individual actions, civil rights, trade secrets and other commercial litigation matters. He also counsels clients regarding employment law compliance issues. From 2004 to 2007 Mr. Shapiro was Co-Chair of the EEO Committee of the New York State Bar Association’s Labor & Employment Section and a member of the Section’s Executive Committee.


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