Religion has been in the news big time recently. This week, some 90% of Americans are expected to observe Christmas in some way — based on an earlier Pew survey. Other recent news relates to the Muslim and Jewish faiths.

It follows that religious practice is important to many employees, and employers should be sensitive to their religiously observant and non-observant employees.

New guidance came from the recent EEOC v. Abercrombie & Fitch decision from the Supreme Court.

“With the 8-1 decision in Abercrombie, and a proliferation of religious accommodation litigation more generally, there is a heightened awareness among employers of the need to consider reasonable accommodation for religious reasons,” Dawn Reddy Solowey, an attorney at Seyfarth Shaw, said about the ruling.

“The key legal holding in the Abercrombie decision is that an employer may not make an applicant’s or employee’s religious practice, confirmed or otherwise, a factor in employment decisions,” she explained to CU Times sister site InsideCounsel. “An employer who has any reason to believe, or even suspect, that accommodation may be necessary … will need to consider engaging in an ‘interactive process’ with an applicant or employee to determine if there is a reasonable accommodation available that does not impose an undue hardship on the employer.”

There has been a focus recently on the accommodation of religious garb and grooming, following 2014 EEOC guidance. That may relate to facial hair, long hair, head coverings, religious clothing or jewelry, tattoos and body art. Also, this could conflict with employers’ internal policies on uniforms, grooming, professional appearance or safety policies.

“Do not ask applicants or employees directly about religion or religious practices, and do not assume anything about an applicant’s or employee’s religion based on stereotypes,” Solowey advised.

But when an employer suspects, a “potential conflict between a religious practice and a work rule … the employer should explain the work rule and ask if the rule would pose any problem for the applicant or employee,” she suggested.

For example, if a job applicant comes to an interview wearing religious clothing that violates the employer’s uniform policy, the employer should communicate the rule and ask if that rule would pose any issues for the applicant, according to Solowey.

“This invites the applicant to disclose any conflict, but avoids a direct inquiry into the applicant’s religious practice,” she explained. “If the applicant says that there is no conflict, the employer should leave it at that. But if the applicant says that there is a conflict, the employer should ask why. If the applicant cites a religious reason, the employer must engage in the interactive process to explore whether a reasonable accommodation can be provided without undue hardship.”

William Nolan, an attorney at Barnes & Thornburg, said the best advice for employees and their religious observance in the workplace, is that if employers have “any reason to believe that an employee practice that is not standard in your workplace is for religious reasons, at least analyze whether there might be a religious accommodation issue before taking any action such as disciplining the employee.”

Training of managers is also important in this area.

Moreover, are there any suggestions in regard to Muslim employees – given recent events?

“In the current climate, and given the spike in anti-Muslim rhetoric in the public discourse, employers are wise to have a heightened awareness around ensuring a workplace that is respectful of all religions,” Solowey advised. “As always, employers and supervisors should be careful not to engage in stereotyping based on any employee’s religion. The employer’s policies should make clear that harassment based on religion will not be tolerated, and explain clearly how employees can report violations of the policy. Any report of religious harassment, by Muslim employees or employees of any faith, should be investigated immediately and if a violation is found, the employer should take prompt corrective action.”

Moreover, Nolan advised employers to act “on facts and information about an individual employee, not assumptions [on] the employee’s faith ….”

“You almost certainly have employees who have political views that Muslims do not belong in American workplaces. Their views, even if widely held in your workplace, are not going to relieve you of your obligation to provide a Muslim employee with a workplace free of harassment based on his/her religion," Nolad continued.

Similarly, Janie Schulman, co-chair of Morrison & Foerster’s Employment and Labor practice group, said that despite the “extreme rhetoric of certain politicians, Muslim employees continue to enjoy the same protection against religious discrimination as other employees, and they should not be expected to forego those rights.”

“At the same time, it would be naïve to assume that all employers and co-workers are sensitive to those rights,” she added. “A little education will hopefully go a long way toward improving those sensitivities.”

As far as guidance for supervisors or business owners who themselves want to observe their own religion, they should “not impose their religion on their employees,” Schulman said.

Instant Insights /

How to Manage Religious Observance in the Workplace

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