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 religious beliefs.
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 religious belief.
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.