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Altered States: Sex Discrimination Or Religious Accommodation?

September 25, 2014

By Michael G. McClory

The Bullard Edge received an unusual letter this week in the (fictional) mailbag. Typically we see HR questions from HR.

This one, though, comes from CK Devin. He is a non-supervisory employee. We took his question because it is sincere and raises issues important to employers.

Here is the question.

Employee’s Question:

I work for Church Revival, a cleaning company that specializes in janitorial services for churches and church properties. When I say work, I mean that literally. I am a janitorial employee and work every day as part of a cleaning crew. I am not the owner and am not even a supervisor.

Church Revival used to be a small company. Recently, though, it seems that the number of churches needing clean-up services has skyrocketed. As a result, we have gone from 15 employees (three five-person crews) to something like 50 janitorial employees – men and women. I am no longer part of a regular crew. I am just on the schedule. Each day it is a different crew supervisor and three new crew members.

I want to make a request, but need your advice before I get in trouble. Here is the problem. At my church women are not allowed to approach the altar. It is not discrimination. It is just an article of faith. However, at Church Revival it is just a free for all. Women are part of the janitorial team and work near altars all the time. I feel like I am going to pass out sometimes.

What I want to do is to ask Church Revival to accommodate my religious beliefs by not scheduling me to work with female employees. I am afraid that if I make this request the company will fire me (the owner is a woman) because it would think I am anti-female. I am not. What do you think? Do I have a prayer? (Sorry, I couldn’t resist.)

The Bullard Edge's Response:

As you probably know, CK, most of the letters The Bullard Edge answers are from employers. We are making an exception here because the issue is so interesting.

Factually, if I follow it, there are three assumptions that I see in your question. First, I assume that the churches that have contracted with Church Revival have not asked that the company exclude women from the cleaning crews. In other words, the churches have not said that it would run afoul of their belief systems to have women work near the altars or any other portions of their places of worship.

Second, it appears fair to assume that you are the one with the concern. You indicate that as an article of faith in your place of worship women are not allowed to approach the altar. This appears to be a sincerely held belief and The Bullard Edge is not going to question it.

Third, it also appears to be correct to assume that your beliefs bar you from being in any place of worship (whether your own or any other church) where women are allowed to approach the altar. This is clearly more attenuated, but again The Bullard Edge accepts that it is sincerely held.

All of these assumptions bring us to your question, which is essentially whether Church Revival would have to grant a request from you not to be scheduled on crews that include women and work near altars in churches. Given that you are a janitorial employee who works every day as part of a cleaning crew for a company that cleans churches, your request seems unlikely. However, let’s take a more precise look at what the law requires and what it does not.

Both federal and Oregon laws generally require the accommodation of religion absent undue hardship. To be potentially entitled to a religious accommodation, an employee (like you) must show (1) that s/he has a bona fide religious belief or practice that conflicts with some aspect of the employee's job duty and (2) that s/he provided notice to the employer of the belief and of the conflict.

There is no requirement that the belief be widely held or popular. (See 29 CFR §1605.1: “The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”)

Moreover, courts are not going to spend much energy questioning sincerity. Basically, a court will be satisfied that it is a bona fide religious belief if the employee “has brought forth sufficient evidence to demonstrate that he possessed a bona fide religious belief” [EEOC v. Red Robin Gourmet Burgers, Inc. (WD WA 2005)].

Once the employee has shown a potential entitlement to religious accommodation, the employer must accommodate unless doing so would result in undue hardship. A conclusion that any particular action would result in undue hardship must be based on careful analysis that shows accommodating a particular practice or belief would be contrary to business necessity, would require more than ordinary administrative costs, would diminish efficiency in other jobs, would infringe on the job rights or benefits of other employees, would impair workplace safety, would require other employees to carry the accommodated employee's share of potentially hazardous or burdensome work, and/or would require the employer to violate another law.

With respect to the type of accommodation you would be requesting, the EEOC has said that “[e]xamples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.” If you make the request, Church Revival would want to consider whether it is feasible to take any of these or other types of measures. Before denying the request, Church Revival should go through the exercise of considering each option and mapping out the specific reason that taking such action would result in undue hardship.

I hope this helps. Good luck and best regards,

The Bullard Edge

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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