Wednesday, August 15, 2012

Accommodating Religious Practices in the Workplace -- Disney in the News

The Los Angeles Daily Journal, a legal newspaper, is reporting that Imane Boudhal is suing Disney, claiming that she was sent home three times without pay for wearing a hijab while working as a hostess at the Storytellers Cafe.  A hijab is a Muslim headscarf.  According to an attorney for Ms. Boudahl, there are or have been four other similar lawsuits against Disney.  (As a sidebar, if one employee has been successfully represented by a lawyer, every other worker with a gripe tends to gravitate to the same lawyer.) 

This lawsuit raises the issue of what an employer must do in order to accommodate workers' religious beliefs and practices. 

Title VII (federal law) and the California Fair Employment and Housing Act ("FEHA") both prohibit an employer from discriminating against an employee based on religion.  These laws also require employers to make reasonable accommodations that would allow employees to exercise their religious believes and engage in religious practices.  HR professionals will recognize the language "reasonable accommodation" which is a phrase often discussed in the context of disability discrimination. 

An employer is required to provide a reasonable accommodation to an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.  The issue of "undue hardship" is another concept with which HR professionals are familiar when dealing with disability discrimination.  However, this term means different things in these two contexts. 

For disability purposes, undue hardship means significant difficulty or expense.  In fact, employers recognize that proving undue hardship for disability purposes is extremely difficult.  Most employers avoid that issue because it is often a losing battle. 

For religious purposes, undue hardship means more than a de minimus cost or burden.  Wow!  According to the dictionary, de minimus means "so minor as to merit disregard."  (  Factors considered include the cost of the accommodation in relation to the size and operating costs of the employer, and the number of persons who need a particular accommodation.  Undue hardship results if an employer is required to pay overtime or hire more persons in order to accommodate religious practices.  Undue hardship is also created if the accommodation infringes on other employees' job benefits, jeopardizes safety, or reduces efficiency and productivity. 

It is interesting to me that the duty to accommodate religious beliefs is a lesser duty than accommodating disabilities.  The practice of religion is expressly protected by the federal and state Constitutions.  It seems to me that with express constitutional protection should also come a higher duty than to accommodate conditions protected only by statute.  I have felt as though that is due to the hostility by some to religion.  It is very evident in today's society that a group of persons is attempting to prevent those with religious beliefs from participating in the political forum.  But that is the subject for a future blog. 

Of course, every case will be examined based on its own merits.  Nevertheless, hopefully an understanding of these basic principles will help employers understand their obligations with respect to accommodating employees' religious beliefs and practices. 

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