In a recent situation that not only involved religious beliefs but also medical needs, a Walgreens’ employee refused to sell a male contraceptive to a married woman because it violated their faith. Walgreens policy allows for employees to do this. A Walgreens spokesperson said that its employees are allowed to “step away from completing a transaction to which they have a moral objection.” A manager eventually sold the contraceptive to the woman.
Even though it is a retail situation, how broadly can these circumstances be applied? Is it legal to ask a prospective employee about a situation they might incur that for some could be morally questionable? That type of questioning potentially could lead to religious discrimination claims. Yet it should be reasonable to ask an applicant if they have objections working on specific days of a week, like Saturday or Sunday, if the work schedule requires it. However, applicants may lie and then state afterwards that they need an accommodation. Can the employer terminate the new employee for falsification of application?
Per the EEOC’s Compliance Manual Section on Religious Discrimination, under Title VII of the Civil Rights Act, employers must make reasonable accommodations for an employee’s religious beliefs, so long as the accommodation does not pose an undue hardship on the employer. Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices. The guidance also points out that Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or feared customer preference. It’s not a reasonable accommodation.
An employers cannot just deny any accommodation request. They have to go through the process of an interactive dialogue. Further, they cannot use, for example, shift change knowing that it would fall under the employee’s Sabbath to try to force an employee to leave. The real issue is what constitutes a sincerely held religious belief. It should be noted that this may not entail believing in traditional religions. A sincerely held religious belief “includes moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Moreover, the term “religion” includes all aspects of religious observance and practice, as well as belief.
In recent times, the use of a bioscanner for clocking in and out for timekeeping purposes gave rise to a religious discrimination suit as the employee firmly believed that the use of the scanner was marking the employee with the “sign of the beast.” The employer refused to accommodate the employee even knowing the deeply help religious belief was legitimate. And the accommodation would have cost almost nothing. The employer lost the case.
What is very confusing is that courts are all over the place when it comes to the COVID vaccine. Some have allowed religious objections, some not. Yet, the employee cannot blanketly state they have a religious objection to the vaccine but must articulate a sincerely held belief that taking the vaccine is violating.
With an increasingly activist National Labor Relations Board, if a group of employees all state that an employer is violating their religious beliefs because of work schedules, would they have an unfair labor practice under the National Labor Relations Act (NLRA)? Depending on the administration, the NLRB could involve themselves. Given the Supreme Court’s latest ruling, undue hardship may be a more difficult burden for employers to meet. The blur between religion and work is getting fuzzier and fuzzier and HR should review their religious accommodation policy with legal counsel to ensure it provides the best protection when these situations arise.
Source: LGBTQ Nation 7/12/22, Jackson Lewis 1/21/21, EEOC’s Compliance Manual Section on Religious Discrimination