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De Minimis Standard Explained
Flexibility, Understanding Are Key
Be Flexible for Creative Accommodations
Your legal obligation to
accommodate employee religious beliefs is relatively easy to
satisfy. You can, however, easily build points toward becoming an
employer of choice by going beyond the minimum requirements.
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An employee asks for Saturdays off
to observe the Sabbath. Another says her religion mandates
headscarves for women, regardless of the company dress code.
Another refuses to work overtime because he must be home before
sundown. How far does an employer have to go to accommodate these
types of requests? As explained below, your legal duty to
accommodate religious requests is minimal. However, many smart
employers are responding proactively to the growing ethnic and
cultural diversity of the workforce and are going beyond the strict
letter of the law in accommodating employee religious requests. The
payoff in doing this is much more than reduced legal exposure. It
is good business. It bolsters individual identity and can foster a
measurably more positive and productive work environment.
De Minimis
Standard Explained
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Your duty to
accommodate employees’ religious practices is based in Title VII of
the Civil Rights Act of 1964 (Title VII), which prohibits workplace
discrimination based on religion. According to Title VII,
“religion” includes all aspects of religious observance and
practice, as well as moral or ethical beliefs sincerely held with
the strength of traditional religious views. The
Equal Employment
Opportunity Commission’s (EEOC) Guidelines on Discrimination Because
of Religion indicates that as long as these beliefs are “sincerely
held with the strength of traditional religious views,” they may
fall under the protection of Title VII. In addition, “the fact that
no religious group espouses such beliefs or the fact that the
religious group to which the individual professes to belong may not
accept such belief,” has no bearing on whether the belief should be
classified as religious in nature.
Title VII
requires employers to make reasonable accommodation for employees’
and applicants’ religious practices as long as that accommodation
does not result in “undue hardship” for the organization. The
meaning of “undue hardship” is murky. Neither Title VII nor the
EEOC enforcement guidelines provide a specific definition for the
term. Fortunately for employers, the Supreme Court has defined
“undue hardship” as any costs greater than de minimis (i.e., a
nominal cost) in Trans World Airlines v. Hardison, 432 U.S. 63
(1977). Examples of costs that courts have found to exceed the de
minimis standard include accommodations that would require the
employer to pay overtime to replacement workers, that create
staffing shortages, or that circumvent the seniority system. In
other words, in most cases, the courts take a relatively relaxed
view of employer obligations regarding religious accommodations.
(As a
practical point of comparison, the “undue hardship” test for
religious accommodation under Title VII is much less stringent than
the “undue hardship” test for accommodating disabilities under the
Americans with Disabilities Act (ADA). In contrast to the de minimis standard, the ADA defines the term to mean a significant
difficulty or expense arising from accommodating the disability.)
Flexibility,
Understanding Are Key
Using the de
minimis standard, employers have broad latitude to refuse religious
accommodations. However, the adoption of flexible policies toward
employee religious needs and beliefs often makes more sense than
simply adhering to the minimum legal requirements. While following
the letter of the law may provide some insurance in any later court
battle, it does little to encourage employee loyalty and
productivity.
Developing and
administering effective religious accommodations can be challenging,
however. Employers often are unfamiliar with the tenets of various
religions and may suspect that some employees will use religious
accommodation requests to avoid distasteful duties or work hours.
Yet, most employee requests are based on genuine religious beliefs
that can be accommodated with no meaningful disruption to the
workplace. The following suggestions are designed to help you
become more flexible in your approach to religious accommodations.
1. Communicate your commitment to the prevention of
religious discrimination. According to
data from the Tanenbaum Center for Interreligious Understanding,
many employers have work to do in this area. Two thirds of the
Christians, Muslims, Buddhists, Hindus, Jews, and Shintoists
surveyed by the Center said they have either witnessed or
experienced some form of religious bias or prejudice in their
workplace. Disturbingly, Buddhist, Hindu, and Muslim respondents not
only said they have experienced religious discrimination, but they
also indicated that they expect it. To combat this perception, you
should develop and enforce policies against religious discrimination
and make sure you are prepared to accommodate reasonable requests.
2. Become better educated about the different religions
of the world. While Christianity remains
the most common religion in the United States, new religions and
belief systems are emerging in American workplaces. This is a
result, in large part, of changing immigration patterns. Newcomers
increasingly hail from Asia, Africa, and Latin America, and they are
bringing with them unfamiliar religions such as Shintoism, Hinduism,
neo-Paganism, and Yoruba. At the same time, the number of Muslims
in the U.S. is swelling; Islam will soon surpass Judaism as the
second-most practiced religion in this country.
When you
are approached by an employee for an accommodation, it helps to know
at least a little about the religious practices in question.
Several resources are listed in the “For More Information” box,
below, that provide details about different religions and their
beliefs. Also, don’t be afraid to ask employees to explain
their religions and need for accommodation. Employees should
appreciate your interest and may be able to help you come up with
creative solutions.
3. Anticipate employees’ religious needs.
Most religious accommodation requests involve diet, clothing, and
prayer. Simple exceptions to your normal dress, attendance, and
break policies may go a long way to accommodating religious beliefs
with minimal disruptions to the workplace. For example, consider
the following suggestions:
• Allow
flexible work schedules during special periods of religious
observance such as Ramadan, Yom Kippur, and Good Friday.
• Offer
a quiet place for people of any faith to pray and allow breaks to be
taken for this purpose.
• Structure personal leave days so that they can be used for religious
observances.
• Expand food choices in the company cafeteria and snack areas when
demand justifies providing them to accommodate religious dietary
requirements.
By taking these
proactive steps to anticipate employee religious needs, you may
actually be able to minimize the number of individual requests for
accommodations.
4. Educate managers and staff. Include religion as a
component in diversity training. Explain
the legal requirements for religious accommodations as well as the
company’s philosophy on flexible standards. Provide examples of
appropriate accommodations such as flextime, job reassignment, and
dress code exceptions so that managers are aware of the full range
of possibilities. Educate supervisors about the key tenets of the
faiths known to be held by your workers that may result in workplace
requests, particularly as they apply to diet, clothing, and prayer
requirements.
Be
Flexible for Creative Accommodations
Yes, some
employees may abuse their religious protections as a means to get
better working hours or to avoid unpleasant assignments. But you
should not fall into the trap of setting policy to weed out a few
abusers at the expense of your hard core of conscientious workers.
Usually, the majority of workers requesting a religious
accommodation do so because they want to express sincerely held
beliefs. You can protect against frivolous requests by asking
probing questions. If you consider each accommodation request on a
case-by-case basis, you can learn to spot those that are less than
sincere. This way you can deal directly with potential abusers
while maintaining the flexibility to be creative in working with a
more diverse work-force. Your willingness to recognize legitimate
individual needs can be an important distinction that makes you
stand out as an employer of choice.
For more
information on
EEOC Guidelines on Religious Discrimination, go to
www.access.gpo.gov/nara/cfr/waisidx_99/29cfr1605_99.html
For
information on The Tanenbaum Center for Interreligious
Understanding, go to
www.tanenbaum.org.
For
religion etiquette questions and information on different religions,
see BeliefNet, www.beliefnet.com.
For resources on
world religions, go to
www.aril.org/World.html. |
Personnel
Policy Service, Inc.
