In his later years, 18th Century French philosopher Voltaire observed that during his lifetime he was ruined by two lawsuits—one which he had lost, and another which he had won. Most employers may not possess Voltaire’s famous wit, but too many can recognize the sentiment. Even when you win an employment lawsuit, the direct and indirect costs, along with the mental aggravation, can take a toll that makes you wonder if you really won.
Consider these two cases. In one there is no question that the employer lost. In January, a jury awarded $21.5 million to a hotel dishwasher who was fired for refusing to work on Sundays after management had accommodated for her religion in this regard for years. Because of a cap on jury awards, she is unlikely to receive much more than $535,000, but her former employer, Miami’s Conrad Hotel, got to see its name linked with hers on network news and the front pages of major newspapers across the nation.
In the second case, the employer won just as definitively. A nurse had applied for a position at a hospital and following an interview the employer extended a formal offer. When completing the pre-hire paperwork, she disclosed for the first time that she needed to have Friday nights off because she was a Seventh Day Adventist. The hospital’s collective bargaining agreement required unconditional availability on weekends, and as a result the hospital declined to hire her, but she was invited to apply for other positions.
Under federal Civil Rights law, employers must make reasonable accommodations for employees’ religious beliefs, including flexible scheduling, voluntary shift substitutions, job reassignments and modifications to other workplace policies or practices.
The requested accommodation can be refused if it is considered an undue hardship on the employer because it is too costly, compromises safety, decreases efficiency, infringes on the rights of other employees or requires other employees to do more than their share of potentially hazardous or burdensome work. However, in recent years courts have narrowed the grounds for which employers can refuse accommodations.
After she wasn’t hired, the nurse’s complaint resulted in an Equal Employment Opportunity Commission lawsuit against the hospital. The trial court found in favor of the employer and EEOC sought to reverse that decision by challenging the decision in Federal Appeals court. This appeal also drew legal support from a raft of heavy-hitter religious and civil rights organizations. Eventually, the appeals court upheld the original decision favoring the hospital over the nurse.
Don’t Be a Target
We can only imagine how thrilled the hospital was when after all of that time and money spent on legal costs, it finally prevailed. At the same time, it’s not too hard to imagine the ghost of Voltaire chuckling at their fate.
The best approach to avoiding either employer’s unhappy state is to never reach the point where the writs start flying, according to Ashley N. Arnett, an attorney with law firm Akerman LLP. She stresses that both decisions are important reminders that employers are generally obligated to accommodate applicants or employees when policies create a conflict with an employee’s or applicant’s religious beliefs.
The first step is to establish written criteria for evaluating candidates for hire or promotion and apply that criteria consistently to all candidates, she says. Develop internal procedures for processing religious accommodation requests and train managers and supervisors on how to recognize these kinds of requests. It is especially important to provide training to inexperienced managers and encourage them to consult with more experienced managers or human resources personnel when addressing difficult issues.
Inform employees that your business will make reasonable efforts to accommodate religious practices. Arnett argues that it is especially important to make sure you individually assess each request and avoid assumptions or stereotypes about what constitutes a religious belief or practice, or what type of accommodation is appropriate.
As we have seen, it is a good idea to try to work with employees who need an adjustment to their work schedule to accommodate religious practices. Consider the employee’s proposed accommodation, and if it is denied, explain why it is not being granted. At the same time, you should consider offering alternative methods of accommodation on a temporary basis, while a permanent accommodation is being evaluated, Arnett advises.
Wherever possible, think about adopting flexible leave and scheduling policies that allow employees to meet their religious needs while meeting the company’s business needs.
This can include facilitating and encouraging voluntary substitutions and swaps with employees of substantially similar qualifications. Once adopted, publicize this policy and promote an atmosphere in which substitutes are favorably regarded, Arnett adds.
In recent years EEOC has consistently targeted religious discrimination in the workplace as one of its top enforcement priorities. As a result, it makes perfect sense to do everything possible to avoid finding yourself in the commission’s crosshairs—whether you might win in the end or not.