In March, the European Court of Justice ruled that employers can lawfully prohibit female Muslim employees from wearing headscarves at work, a decision that would not likely be issued in American courts.
The lawsuit involved two companies, one based in Belgium and the other in France, each being sued by a female employee who had been terminated for refusing to comply with their employers’ policies banning visible signs of their political, philosophical, or religious beliefs in the workplace.
The European Court of Justice determined that the employers did not discriminate because their policies forbade any expression of religious belief in the workplace. Therefore, these two employees were not being singled out for their expressions of their Muslim faith.
Our Equal Treatment Goes One Step Further
In the United States, Title VII is usually interpreted to prohibit such policies even if applied equally among all religious groups. For example, in Abercrombie & Fitch Gets Dressed Down in Religious Accommodation Case we reported on the U.S. Supreme Court ruling against the retailing giant for refusing to hire a Muslim woman who wore a headscarf (hijab) since the decision was premised on the fact that the applicant was Muslim.
The key issue in the Abercrombie case, as in many such matters, was Title VII’s requirement of reasonable accommodation. When a seemingly neutral and uniformly-applied policy burdens an employee’s religious beliefs or practices, the employer must determine whether reasonable accommodation can be provided to permit the employee to remain employed despite noncompliance with the policy.
Examples of Accommodation
Typical examples include scheduling around an employee’s observance of a religious holiday or allowing an employee to wear religious garb such as a yarmulke or hijab (or perhaps even a colander if the employee is a Pastafarian). However, if the employer can demonstrate that the accommodation of the employee’s religious practice poses an “undue hardship”, the employer may decline to accommodate and may insist that the employee comply with the challenged policy.
Contrary to the elevated threshold for proving undue burden under the Americans with Disabilities Act, the standard for proving undue hardship for religious accommodation is rather minimal. The Equal Employment Opportunity Commission (EEOC) explains: “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.” EEOC recommends such relatively unobtrusive accommodations as flexible scheduling or voluntary shift swaps.
Unlike in Europe, equal treatment is not equal enough for American employers whose employees contend that their work infringes on their religious beliefs. When faced with such a claim, you might not have to do much but you have to at least give some thought to whether you can make a modest adjustment that will allow the employee to continue working while also meeting his or her religious obligations.