Belief and Business

Generally, building service contractors know the basics of religious accommodation. First off, they can’t make any hiring decisions based on the religion of the applicant. Also, most employers must try to accommodate their employees’ religious practice so long as doing so won’t create an undue hardship, according to the Equal Employment Opportunity Commission (EEOC). Some states have additional laws.

For instance, most of the accommodation requests Lorinda Lentz, RBSM, director of human resources for Executive Management Services in Indianapolis, gets are for changes to scheduling and uniforms. She handles accommodation requests for her company’s 1,700-person workforce.

“We have a few folks who go to services on Wednesday evenings, as well as Sunday,” Lentz says, “and we get people who ask for certain days or evenings off for holidays. They’re really good about asking ahead.”

If the supervisor knows in advance that a team member is going to be absent, he or she can workload around the absence, shifting duties to other workers or cutting back on project work that day.

Also, her company’s uniform consists of a polo shirt and slacks; some religions prohibit women from wearing pants, and Lentz has heard some complaints. Generally, she allows women in that situation to wear a skirt.

But what about the more unique requests, those that might impact the company or other employees unfavorably? That’s where it gets a little tricky. The EEOC offers the following guidance on its Web site.

“An employer is not required to accommodate an employee's religious beliefs and practices if doing so would impose an undue hardship on the employers' legitimate business interests. An employer can show undue hardship if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.”

That guidance still doesn’t clear up all of the gray areas and hypotheticals, so BSCs must turn to previous cases and common sense to determine their course of action.

Single-sex shifts
Simple scheduling requests, such as a day off for Yom Kippur, or a time shift during Ramadan, usually are considered reasonable accommodations, as long as there are other employees able to swap shifts. But a gray area comes up when altering someone’s work schedule infringes on someone else’s rights.

For instance, some religions prohibit unrelated men and women from working together, so an employee in that situation might request to be placed on a single-sex crew. That’s probably not allowable, says Dianna Johnson, assistant legal counsel for the EEOC.

“If accommodating one’s religious beliefs requires discriminating against someone else, that’s an undue hardship,” Johnson says. If designing a single-sex crew meant someone else couldn’t get a job, or would be moved to a less desirable shift or site, this would constitute sex discrimination and the employer wouldn’t need to make the accommodation.

However, this isn’t a blanket standard, adds EEOC senior attorney adviser Jeanne Goldberg. Voluntary shift changes could be acceptable, as could allowing someone who wanted to work in a single-sex environment to work alone.

Rights of expression
Another common concern is religious expression, whether through speech or through symbol, and when it crosses the line into unwanted prostelitizing.

In general, it’s not a good idea to forbid employees from discussing their religion at all, because in many sects, evangelism is a vital part of their beliefs, says David Barkey. He is the associate director for national legal affairs for the Anti-Defamation League, a Jewish anti-bigotry organization that works for fair treatment of all citizens.

Also, according to Title VII of the Civil Rights Act of 1964, employers must permit employees to engage in religious expression if employees are permitted to engage in other personal expression at work. Employers can’t forbid religious speech if they also allow other social conversations.

“But, employers can’t allow it to become harassment,” Barkey says. “The question, though, is at what point does it become harassment?”

Barkey suggests that inviting fellow employees to church or to discuss their faith is acceptable, but it crosses into harassment if the co-workers turn down the invitation and the employee keeps pestering them. He draws comparisons to sexual harassment — asking a fellow employee on a date is acceptable; continuing to do so after he or she has said no is harassment.

Religious symbols such as crosses, Stars of David or head coverings such as a hijab or a turban also are generally protected religious expression, as long as they’re not causing a safety hazard. A BSC wouldn’t have to allow someone to wear a flowing garment or veil while operating a machine, since compromising safety is considered an undue burden, says Goldberg.

However, there are exceptions.

“We look at the reason the employer has a rule,” says Goldberg. “Take police officers. In one case, a cop wanted to wear a cross on his uniform, but the department had a prohibition against religious jewelry. In that context, allowing the officer to wear the cross would be an undue hardship, because there’s a potential for the public to perceive a bias.”

In other jobs, such as janitorial work, public perception wouldn’t come into play, and allowing cleaners to wear their symbols would be considered a reasonable accommodation, even if it interfered with the aesthetics of the uniform.

Careful compromise
One important thing to remember is employers don’t necessarily have to grant employees the exact accommodation they want in order to comply with the law. Just as allowing a worker who wants a single-sex crew to work alone may be considered reasonable, employers may seek compromise in other situations.

“An interesting case just came down,” says Barkey. “A woman, who was [anti-abortion], worked as an ultrasound technician. Her religion required her to counsel women not to have abortions.”

However, her employer wouldn’t allow her to offer such advice. She sued, claiming that her employers were requiring her to be silent and defy her religious beliefs.

The employer countered that they offered her a reasonable accommodation — that she be allowed to excuse herself from any patient who might be thinking about abortion (such as one whose ultrasound showed a birth defect). The technician found this unacceptable and pressed for the right to counsel her patients. The EEOC eventually sided with the employer, since employers only need to offer a reasonable accommodation, and not necessarily the worker’s desired one.

Contractors who are still unsure whether making an accommodation is the right thing to do can contact the EEOC for guidance. The agency offers no-cost compliance and educational outreach; for more information, call 1-800-669-4000 to be connected to a local field office.

Editor’s note: This article is intended as a summary of legal information, and should not be construed as legal advice. We strongly recommend you consult a qualified attorney or other expert regarding legal representation, your legal options or for interpretation of laws relating to your business.