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Fictional Mailbag: Religious Accommodation And Request For Relief From “Park To The East” Policy

February 15, 2016

By Michael G. McClory

Religious accommodation is challenging.  In this week’s (fictional) mailbag we try to help Harmony, the HR manager at Mid-Town Cakes & Breads, work through a request for accommodation that, if granted, would disrupt company plans.  Here is Harmony’s letter and The Bullard Edge‘s response.

Harmony’s Question:

Hey, Bullard Edge, I hope you had a happy Valentine’s Day and Presidents Day and enjoyed the NBA All Star game weekend.  I didn’t get to enjoy any of those things.  Instead, I was too busy being stressed out over work.

This should be a happy time.  Mid-Town Cakes & Breads is only 10 days away from the grand opening of its new headquarters.  We are moving from this decrepit mini-bakery to a beautiful state-of-the-art facility.  The back half of the building will be a thoroughly modern kitchen, with magnificent ovens and equipment.  We expect to be in the class of a little t baker or a Pearl Bakery. Equally exciting, the front half of the building will contain a “showroom”/walk-in bakery on one side and a corporate retreat center on the other side.  Team building has to go well if the participants are surrounded by sweet smelling cakes and fresh breads.

The press will be attending the grand opening and it should be quite the party, except….

One of our long-time employees is objecting to the parking arrangement.  Because we want the front of the building to be clear for customers and retreat attendees, we have designated the lot on the side of the building for employee parking and the entrance on that side of the building as the employee entrance.  On-site parking is a nice benefit for employees.  Nevertheless, Holly asked for permission to park in front and to enter the building in front.  She said that the employee lot and entrance is on the east side of the building, which violates a sacred tenet of her religion.  She explained (or tried to) that her religion believed that the east side conveyed allegiance to the devil.  I was floored.  What religion, I asked her, cares about where you park or what door you use?  She identified her church and presented a letter from her minister.  In the letter, the minister not only named Holly, but also ten other employees. 

This is a disaster.  Our customer atmosphere will be destroyed if we allow Holly and a number of other employees to take the best parking spaces and to enter/leave the building by walking through the showroom and retreat center.

I respect religion, and know that there is a duty to accommodate it.  However, does Mid-Town Cakes & Breads have to change its business model before it even starts?  What if another employee told me that his or her religion forbids electricity?  Where can we draw the line?  Please help me.  Thanks.
 

The Bullard Edge‘s Response:

This is a tough one, Harmony.  While you sound like you understand the issues, I think it is important that we walk through the applicable law.

Under both federal and Oregon law, employees have religious rights in the workplace.  Where it is on notice that an employee has a sincerely held religious belief and needs accommodation related to that belief, an employer must reasonably accommodate that belief unless providing accommodation would result in undue hardship. 

The EEOC says that an “accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”  That being said, it also states that examples of “some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.”

Holly’s religious belief is not common.  The Bullard Edge has certainly never encountered it.  That being said, we gather from your letter that you are convinced this belief is sincerely held.  That is the key.  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.”)

The key, then, is going to be the reasonable accommodation analysis.  Mid-Town Cakes & Breads must carefully analyze whether it would be an undue hardship for it to modify its parking and building access practices for Holly (and likely for ten other employees).  We have not seen photos of the inside or outside of the new building so we are just going to throw out some questions for you to consider.
 
  • Is it possible to cordon off a small portion of the parking lot in front of the building for Holly and others?  And since Holly’s is the only request so far, would it be possible to simply allow her to park in front?
  • Is there an entrance on the west side of the building?  Or any other way into the building other than through the east entrance or the front entrance?
  • Is your concern about Holly and others entering in the front that they will be dressed like bakery workers and diminish the experience for your bakery or retreat customers?  Would it be possible to impose a neatness requirement for employees entering or exiting through the front?

This is not an exhaustive list of questions.  The point is simply that you need to explore all options before you conclude that it would be an undue hardship for Mid-Town Cakes & Breads to accommodate Holly.

To put things in perspective for you, consider the outcome in EEOC v Consol Energy.  On Tuesday the US District Court for the Northern District of West Virginia upheld a jury verdict for EEOC in a case involving an alleged failure to accommodate a religious belief.  The EEOC had filed the lawsuit on behalf of an employee who objected on religious grounds to use new technology to scan their hands when clocking in and out of work.  The employee “believed it was part of an identification system and collection of personal information that would be used by the Christian Antichrist, as described in the New Testament Book of Revelation, to identify his followers with the ‘mark of the beast.’”  The employee quit when the employer would not modify that system for the employee.  At trial, the jury awarded the employee $150,000 in compensatory damages and the Court awarded $436,860.74 in lost wages.  (We do not know whether Consol Energy will appeal this decision.)

The outcome in EEOC v Consol Energy is an excellent illustration of the scope of the risk that an employer faces.  To comply with the law, and to minimize the risk that a jury will find it liable, an employer needs to thoroughly and objectively undertake the reasonable accommodation analysis that the law requires.

I hope this helps, Harmony.  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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