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How Much Is An Employer Required To Tolerate In The Name Of Religion?
The core question then becomes this: what is an employer obliged to put up with in the name of religion?
The general rule is that employers are required to “reasonably accommodate” their employees’ religious practices so long as doing so does not create an “undue hardship” on the employer. It’s a rule that’s easy to recite, but what does it mean in practice, in the real world?
In 1977, in what seemed at the time to be a landmark ruling in favor of employers, the Supreme Court ruled that an accommodation that results in more than a de minimis cost to an employer crosses the “undue hardship” line. The EEOC defines de minimis in reference to the size and operating cost of the employer – in other words, the concept is relative, but at least in a general sense, if the religious accommodation will cause the employer to incur more than just a minimal cost, the employer may have a defense.
Since that decision, however, many courts have grabbed hold of the de minimis standard, and twisted its meaning beyond recognition. What a court may deem to be de minimis, an employer will often deem to be disastrous. This has resulted in a crazy quilt of decisions that make it very difficult to derive predictable rules and standards.
In addition, it may be that the de minimis standard will soon change in any event. In 1997, Senator Kerry, among others, first introduced the Workplace Religious Freedom Act, which would require employers to accommodate their employees’ religious practices unless doing so would cause “significant difficulty or expense.” In essence, the WRFA seeks to make the religious accommodation standard similar to the ADA’s “undue hardship” standard – employers would be required to accommodate religious practices unless employers could prove that the consequences would be truly burdensome. The legislation has not yet passed, but the bill was re-introduced in 2003, and it is backed by a diverse array of religious groups.
In the meantime, set forth below is the best guidance we can provide on the issues employers most often face.
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