Accommodating an Employee's Religion—Having the Necessary Conversations
Most HR Managers know that employers are obligated to provide reasonable accommodations for an employee’s religious practices—but do your managers actually go through the necessary conversations the law obligates you to have? Let’s walk through a potential situation and see how it might go:
Let’s say that Sari, a sandwich preparer at your deli who works within the customers’ view, comes to work with a head-scarf and nose ring in violation of the company’s dress code. (Yes, this scenario presupposes that you do have a dress code.) What does the deli manager do? In most cases, he’ll say "take off the scarf and take out that nose ring—you know you can’t wear them to work." This is a good example of where manager training can help avoid a law suit and where company policy plays an important role. But first, let’s back up.
Federal U.S. law requires employers to make reasonable accommodations to employees’ sincerely held religious beliefs that conflict with a workplace requirement, where doing so will not pose an undue hardship on the business. In order to determine what type of reasonable accommodation can, and should, be made (and whether one can be made at all), employers must use the "interactive process." This is merely a conversation—a give and take—between employer and employee attempting to determine whether an accommodation is required, and if so, what can be done that will not pose an undue hardship.
This is often seen when an employee is scheduled to work on his or her Sabbath—a day the employee sincerely believes should not be a day of work. There, the conflict is clear—the employee believes she should not work on the Sabbath, and the employer has scheduled her to work. When addressing these situations the employer is entitled to know (1) what the employee’s sincerely held religious belief is and (2) exactly how it conflicts with a workplace requirement. When it comes to employee scheduling, usually the employee raises the issue by saying "that is my Sabbath and I cannot work on that day."
But when it comes to employee dress codes, the issue often arises differently—and the manager may not know that what appears to be a dress code violation is a religious requirement for the employee, especially when an employee changes his or her way of dressing after having been employed for a while.
Let’s look back at Sari—the sandwich maker with the head-scarf and nose ring. What the manager should do is show Sari the dress code policy and tell her that her attire violates the policy. Hopefully, the policy has a statement that says "reasonable accommodations will be made for employees’ religious practices" which will prompt the employee to mention that she needs an accommodation in this case. If she does not, it would behoove the manager to observe the employee’s reaction to being asked to change. It if is other than "oh, ok," the prudent manager would dig a little deeper—but must tread carefully. There’s a fine line between intruding on an employee’s privacy and religious practices, and enforcing employment policy. However, it is probably permissible to ask the employee if there is some reason she is required to wear the headscarf and nose ring. The point is, you want to give the employee the opportunity to say "this is part of my religion; it is something I am required to do." Employers are permitted to inquire into employees’ religious beliefs, and even may request notes from ministers, priests or rabbi’s confirming the religious requirement. Of course, all such interchanges much be conducted with the utmost respect and in no way denigrate the employee or identified religious practice as such could invite a harassment claim in addition to a failure to accommodate claim (besides being poor manners and disrespectful).
In 2009 a Subway restaurant went all the way to trial because the EEOC believed it had failed to accommodate an employee’s desire to wear a nose ring—only to have the jury determine that the employee "did not wear the nose ring because of a sincerely held religious belief." EEOC v. Papin, 2009 WL 2256023 (M.D.Fla.).
HR would be wise to train managers to get HR involved with accommodation issues so that the managers do not jump to conclusions that an employee’s attire is merely a policy violation to be disciplined.