Richard D. Alaniz

Religion in the workplace can present a difficult balancing act for employers. Failing to strike the right balance can lead to clashes with workers and unions, potential lawsuits, trouble with federal regulators, and a negative public image.

Consider Hertz’s situation. According to news reports, in October the car-rental company fired 26 Muslim employees who refused to clock out for their paid prayer breaks. In response to the firings, the drivers’ union launched a public relations campaign alleging religious discrimination and has filed complaints with federal regulators.

Hertz employs a number of Somali Muslims at Seattle-Tacoma International Airport who drive cars to and from the airport for cleaning and refueling. As part of their religious beliefs, the Somali Muslims must pray five times a day, and during an eight-hour shift employees may need to pray twice.

Hertz offered paid breaks to all its employees at the airport, but management began to worry that some of the Muslim workers were taking longer than the allotted ten minutes. So the company began asking workers to clock out for their breaks.

According to Hertz, the company has the authority to implement a clocking-out policy under an agreement with the U.S. Equal Employment Opportunity Commission (EEOC). But the employees’ union, Teamsters Local 117, disagrees and insists that having workers clock out for breaks violates its contract.

Hertz, which has worked to accommodate the employees and has provided a prayer room at the airport, initially suspended 34 Muslim workers who refused to clock out. After the suspensions, eight workers agreed to the new policy and kept their jobs. The rest were fired. “It’s not about prayer, it’s not about religion; it’s about reasonable requirements,” Hertz spokesperson Rich Broome told the Associated Press.

The union has responded by filing several unfair labor practice charges with the National Labor Relations Board (NLRB) and has said it plans to file religious discrimination complaints with the EEOC. “Hertz has violated our contract, violated labor laws, and even violated their own internal policy by not adhering to the principle of progressive discipline when workers were suspended without warning,” said Teamsters Local 117 Secretary-Treasurer Tracey A. Thompson in a statement. “Hertz then fired these workers after giving them an unconscionable ultimatum: choose between your livelihood and your dignity.”

These types of situations are becoming increasingly common, according to the EEOC. In fiscal year 2001, religious discrimination cases accounted for 2.6 percent of all EEOC filings. In fiscal year 2010, they accounted for 3.8 percent.

Hertz is not the only company to grapple with the issue of prayer in the workplace. In 2010, the EEOC sued JBS USA, alleging that the meatpacking company committed religious and national origin discrimination against Somali and Muslim employees at its facilities in Colorado and Nebraska.

According to the EEOC, the company failed to reasonably accommodate the prayer requests of its Muslim employees. The company was also charged with retaliation after it fired employees when they asked to have their evening break moved so that they could fast and pray at sundown during the Islamic holy month of Ramadan. The EEOC also alleged that supervisors and other employees threw blood, meat, and bones at Muslim employees and called them offensive names.

“The issue of national origin and religious discrimination in the workplace has become more significant as more immigrants with different ethnic and religious backgrounds join our workforce,” said EEOC General Counsel P. David Lopez in a statement at the time. “The laws of this country prohibit harassment based on national origin, and mandate that employers accommodate employees’ religious practices so long as doing so does not create an undue burden on the employer.”

As the Hertz situation demonstrates, employers must tread carefully when dealing with the complex intersection of religion, workers’ rights, and the need to have a productive workplace.

Laws That Govern Prayer at Work

Religious accommodation is regulated at the federal level, and numerous states and local governments have additional regulations that could impact how employees express their religion at work.

• Federal Regulations

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, and national origin. According to the EEOC, “Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers.”

Along with praying, Title VII protects religious practices such as attending worship services, wearing religious clothing or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, as well as refraining from certain activities such as compulsory prayer. But, employers don’t have to accommodate every belief, practice, or observance of employees. According to the EEOC, “Title VII requires an employer, once on notice that a religious accommodation is needed, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.”

Under Title VII, in order to prove that a religious accommodation represents an undue hardship, an employer must show that the proposed accommodation would be more than a “de minimis” cost or burden. This is a fairly low standard, and is even lower than the undue hardship rule under the Americans with Disabilities Act, which requires that an employer show a “significant difficulty or expense” to avoid having to provide an accommodation.

When employees want a religious accommodation, they are required to alert the employer that they need an accommodation and that it is being requested due to a conflict between religion and work. Generally speaking, employers don’t usually need to question whether an employee’s request is religious or that it is sincerely held. However, employers with legitimate concerns about an employee’s request are entitled to ask limited questions.

When deciding whether to let employees pray, proselytize, or engage in other forms of religiously-oriented expression in the workplace, the EEOC allows employers to consider the effect these expressions would have on co-workers, customers, or business operations. It is a balancing act that requires careful consideration.

• State and Local Laws

Along with Title VII, employers need to also follow state and local laws regarding how their employees practice and observe their religions. For example, in New York State, employers must permit workers to observe holy days, unless doing so would cause an “undue hardship.” There is a New York City Human Rights Law that Big Apple employers must follow as well, along with the state and federal law.

What Employers Should Do Now

When employees ask for religious accommodations, employers need to take these requests very seriously. By planning ahead and developing clear policies, companies can limit their legal and regulatory liability and help create a defense in case they are ever accused of religious discrimination.

• Train and Train Again

Companies need to educate all their employees about religious accommodation. Managers and supervisors should receive thorough, periodic training to educate them on how to appropriately respond to employees who raise issues regarding religious accommodation, prayer, and clothing.

It’s also important that employees understand what they need to do and who they need to talk to when they want prayer breaks, time off for religious holidays, or other accommodations. Employees should also understand that they need to provide as much notice as possible if they need time off for religious holidays and work with their managers on how to schedule vacation or personal time around these days whenever they can.

Those involved with hiring also should receive training. For example, interviewers can never ask job applicants if they will need time off to pray during the workday or for religious holidays if they are hired. But, interviewers may ask if the applicant has any problems working the required shifts.

• Review Company Policies and Procedures

It’s always a good idea to regularly review employment policies regarding religious accommodation to make sure that they are up-to-date and still apply to the company’s workforce and needs. This review should involve human resources staff and counsel. It should also take into account all federal, state, and local laws and any agreements with workers and unions.

Organizations may be impacted by laws that don’t necessarily relate specifically to religion. For example, under the laws of some states, workers are entitled to paid breaks. In Washington State, where the fired Hertz employees were based, workers are required to get paid 10-minute rest periods for each four-hour work period. Most states don’t require paid breaks, so employers need to think carefully about how they will give employees time off during their shifts if they need to pray.

And of course, once updated, policies need to be consistently followed and enforced.

• Be Flexible and Open-Minded

The EEOC stresses the importance of cooperation between employers and workers when it comes to religious accommodations. When employees have requests or concerns about keeping their religious traditions, customs, or holidays, managers should be willing to listen and attempt to work with employees. If the employer needs more information to evaluate the request, it can require additional information from the employee

As the United States workforce continues to diversify, employers must be prepared to address new issues and religions with which they may not be familiar. With the right planning, they can develop policies that will foster a productive and fair work environment that helps head off potential lawsuits and regulatory actions.

Publication date: 12/19/2011