Recently a Kentucky county clerk was held in contempt of court for refusing
to issue gay marriage licenses out of observance of her religious beliefs.
While this clerk was an elected official, the publicity highlighted the
issue of what obligations an employer has to accommodate employees with
Title VII of the Civil Rights Act of 1964, which applies to employers of
15 or more employees, prohibits discrimination based on race, color, gender,
national origin, and religion. Similarly, the Nebraska Fair Employment
Act, Neb. Rev. Stat. § 48-1101, et. seq., also prohibits discrimination
by employers based on race, color, gender, national origin, and religion,
as well as disability and marital status.
The Equal Opportunity Commission states unlawful religious discrimination
occurs when a person – applicant or employee – is treated
unfavorably because of religious beliefs. This protects not only people
who belong to traditional, organized religions (Christianity, Islam, Judaism,
etc.), but any others who have sincerely held religious, ethical or moral beliefs.
This law forbids discrimination when it comes to any aspect of employment,
including hiring, firing, pay, job assignments, promotions, layoff, training,
fringe benefits, and any other term or condition of employment.
Further, Title VII also requires an employer to provide a reasonable accommodation
for an employee's religious beliefs or practices, unless doing so
would cause more than a minimal burden on the operations of the employer's
business – i.e., an undue hardship.
Thus, the analysis for a reasonable accommodation for sincerely held religious
beliefs is similar to the analysis for a reasonable accommodation under
the ADA: can the employee perform the essential functions of the job with
a reasonable accommodation.
Some examples of some common religious accommodations might include flexible
scheduling, voluntary shift substitutions or swaps, job reassignments,
and modifications to workplace policies or practices.
Courts have suggested an accommodation is reasonable as a matter of law
if it eliminates the religious conflict. Further, an employee has no right
to insist upon a specific accommodation if the employer can eliminate
the conflict with another accommodation.
Like many problems, employers can minimize the risks of litigation by having
a clear policy for religious accommodation in their employment manual.
Furthermore, employees should be provided written job descriptions that
highlight essential functions of their positions. Finally, when an employer
is presented with a request for a religious accommodation, the employer
should consult with a professional to determine the appropriate response.
In no cases should an employer retaliate against an employee for requesting
an accommodation, even if the employer is unsure of the sincerity of the
Finally, local ordinances may also prohibit discrimination by smaller employees.
For example, Title 11.08 of the Lincoln Municipal Code also prohibits
discrimination based on sex, national origin, age, disability, race, retaliation,
color, marital status, religion, and familial status by employers of four
or more employees. It is important for employers to know the municipal
codes for all business locations.