Look at any annual holiday calendar of an American business, and you’ll likely see a list that begins with New Year’s Day and ends on Christmas, with several additional days off scattered in between. Many US employers follow the so-called “federal holiday” calendar, which is actually a list of annual events known as “public holidays” due to their widespread mutual celebration throughout the United States. A good many employers, both public and private, also offer paid holidays based on significant Christian celebrations, like Good Friday and Christmas Day.
But what about employees who practice a faith not recognized by his or her employer? Can they take time off to observe the obligations and celebrations associated with their religious practice?
Religious freedoms 101
Religious freedom in the United States is described in two broad constitutional tenets: the Free Exercise Clause and the Establishment Clause. While both clauses have been substantially extrapolated over the years by the Supreme Court, their gist, with regard to employer/employee relations, is this (note that these protections do not apply to faith-based organizations):
- Employers cannot treat a worker more favorably or less favorably due to the worker’s religious practices (or lack thereof)
- Employees are protected from mandatory practice of a certain faith as a condition for employment
- An employer must offer reasonable accommodations to an employee concerning his or her religious practice, unless doing so would create an undue hardship on the employer
- An employer cannot turn a blind eye to religious discrimination or harassment, and must take steps to prevent or mitigate the problem
- An employer is prohibited from retaliating against a worker who makes a claim of religious harassment or discrimination
With regard to anti-discrimination measures, the laws and consequences are codified in Title VII of the Civil Rights Act of 1964, which provides broad safeguards across a number of protected classes, religion being one of them. Moreover, the act defines religion broadly, as including “all aspects of religious observance and practice, as well as belief,” and thus does not limit its protections solely to traditional or widely-practiced faiths.
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Reasonable accommodation at work
What exactly is a reasonable accommodation with regard to time off for religious observance? As with most legal questions, the answer is “it depends.” Most often, the courts have grappled with the issue of employee scheduling and whether refusing time off for a religious practice violates the Civil Rights Act and constitutional religious protections. A couple examples:
EEOC v. Ilona of Hungary
The District Court and Seventh Circuit reviewed whether a salon could constitutionally terminate the employment of two estheticians because they took off for Yom Kippur, one of the holiest holidays in Judaism. While the salon owners did not question the sincerity of the request, they informed the employees that several clients were scheduled for that day and they had no choice but to work. After refusing, the women were fired—and subsequently filed claims against the salon for religious discrimination.
After considering the hardships cited by the salon owners—including that the employees had waited until the last minute to request leave, four other employees were scheduled off that day, and the business was “in the red” at the time—the court nevertheless found that the losses to the business would have been minimal. The court also held that the employer’s argument that it offered the employees another day off was without merit, as “Yom Kippur is not a moveable day, [and] this was no accommodation at all.”
EEOC v. Firestone Fibers and Textiles
By contrast, an employer’s rights were upheld in this case before the Fourth Circuit Court of Appeals. The case involved a textile worker who was an adherent of the Living Church of God, and thus requested time off from sundown Friday through sundown Saturday, as well as seven holidays per year. After a corporate restructuring and downsizing, the employee was essentially given the option of picking up shifts during Sabbath and holidays or losing his job. The total number of days off the employee required – in addition to regular, paid company holidays – was approximately 21, and the employer was eventually unable to accommodate that schedule.
The employer tried manipulating the shift schedule, changing the employee’s position, and even leaving the shift uncovered during the Sabbath, efforts that were deemed impossible under the company’s collective bargaining agreement. After termination, the employee filed an unsuccessful lawsuit. In rejecting his appeal, the appellate court held that “reasonably accommodate means what it says: reasonably accommodate,” observing that had Congress intended to require complete accommodation of religious practices, it could have worded the statute to say “totally accommodate” or “completely accommodate.”
Recourse following discrimination
In a successful religious discrimination case, employees have a number of options in terms of recourse, and the Civil Rights Act vests federal courts with broad discretion in fully compensating discriminated employees. In Ilona of Hungary, the employees sought—and won—back pay, including benefits, for the entire period of unemployment. They also secured their seniority status within the salon, reinstatement of their position, and “front pay” to ensure wages were paid from the date of judgment to the date of reinstatement. In some cases, employees are also awarded additional monies to cover pain and suffering or emotional distress—as faith-based discrimination is historically considered exceptionally personal and offensive in nature.
The intersection of religious freedom and employee/employer rights is a complicated issue—but it’s clear that serious repercussions await an employer who unnecessarily infringes on an employee’s religious freedoms without good cause.
