Once an applicant or employee raises a claim that a religious belief or practice conflicts with an employer’s policies, the employer is obligated to attempt to accommodate the employee’s beliefs or practices unless such accommodations would place an undue hardship on the employer. The critical questions for both the employer and the employee are, of course, to what extent is the employer required to change its policies to accommodate the employee’s religious beliefs or practices, and what actually constitutes undue hardship.There is no single, across-the-board answer to the first question. Whether an employer has satisfied its reasonable accommodation duty is determined by the EEOC and the courts based on examination of a number of factors:
- Whether the employer has made an attempt at accommodation.
- The size of the employer’s workforce.
- The type of job in which the conflict is present.
- The employer’s checking with other employees to see if anyone was willing to assist in the accommodation.
- The cost of accommodation.
- The administrative burdens of accommodation.
As a practical rule of thumb, larger employers with many employees and financial assets are generally required to expend more effort and funds to make an accommodation than smaller employers. I believe that case law also emphasizes the importance of an employer making documented efforts to arrive at some accommodation of the employee’s religious beliefs or practices.
It is important to note that an employer is only required to make reasonable efforts to accommodate an employee’s religion; it is not necessarily required to accept an accommodation offered by the employee. For example, an employee whose religious beliefs prevent her from working on Fridays might want an employer to accommodate her beliefs by letting her work four ten hour days, Monday through Thursday, and give her Fridays off. The employer would probably fulfill its duty to accommodate her religious beliefs, though, by instead requiring her to work regular eight-hour days Monday through Thursday, give her Friday off, and then require her to work eight hours on Saturday.
While it is clear that an employer must attempt to accommodate an employee’s religious beliefs and practices, the U.S. Supreme Court’s Hardison case, discussed in the text, indicates that it is not a heavy burden for an employer to establish that a suggested accommodation would cause it undue hardship. Hardison involved an employee with a Saturday Sabbath day arguing that he should be granted that day off, and that the employer could accommodate his religious need for the day off by (1) requiring him to work only four days a week, or (2) fill his Saturday shift by paying another employee overtime, or (3) assign other employees to swap days off with him, despite the fact that this would violate seniority provisions in the applicable collective bargaining agreement. The Supreme Court held, though, that each of these suggested accommodations would constitute an undue hardship on Hardison’s employer, a large international airline. More specifically, the Court stated that the first two alternatives would regularly require the employer to pay overtime to cover Hardison’s Saturday shifts, and that it would be undue hardship for the employer to have to pay more than a de minimis (minimal) cost to allow Hardison to take the day off. With respect to the third alternative, the Court held that it would also constitute undue hardship for a collectively bargained seniority system to be set aside to accommodate an individual employee’s religious observance. In addition, the Court stated that if the employer forced other employees to swap days off with Hardison to accommodate his need for Saturdays off, it would constitute unequal treatment of those employees based on their religions.
In determining whether a particular accommodation causes an employer undue hardship or not, the particular facts of the case must be considered.