November 2006 SBH Quarterly Newsletter
PDF FormatAccommodating Religious Beliefs in the Work Place
A recent decision from the Court of Appeals has brought the issue of
religious accommodation to the forefront. In Nakashima v. Board of
Education, 204 Or App 535, affd on review, 206 Or App 568 (2006), the Court
of Appeals determined that the Oregon School Activities Association (OSAA)
was not required to provide special scheduling to accommodate the Sabbath
day of one of its member high schools. Nakashima addressed a complaint by
Portland Adventist Academy against OSAA for scheduling high school
basketball tournaments on its Sabbath. The issue before the court was
whether changing all schedules for 2A schools amounted to an “undue
hardship.” Ultimately, the court found it did create a substantial burden
for the OSAA and dismissed the complaint.
The case is instructive for employers. Employers must provide reasonable
accommodations for employees with sincerely held religious beliefs, unless
doing so creates undue hardship.
When does an employee have a sincerely held religious belief?
Although the law protects only “sincerely held religious beliefs,”
challenging this standard is not easy. Unless the employer has credible
information that casts doubt on the validity of the religion or the belief,
there may be more to lose than gain in making the employee “prove” the
sincerity of belief. (Sometimes a quick google search is enough to reveal
that a religion you never heard of has quite a following.)
What is a reasonable accommodation?
According to the EEOC, a reasonable religious accommodation is any
adjustment to the work environment that allows the employee to practice his
or her religion. This could include changes in scheduling, reassignment or
transfer to comparable positions, and modification of workplace policies or
procedures. What is reasonable will depend on the job. For example,
religious garb that conflicts with OSHA mandated safety equipment is
unlikely to be reasonable. Allowing an employee to trade off religious day
work may be reasonable.
What is an undue hardship?
If accommodating a religious practice requires extraordinary administrative
costs, hampers efficiency in other jobs, impairs safety or causes other
co-workers to carry the employee’s burdensome work, then an undue hardship
may exist. An employer does not have to accommodate a religious belief that
causes an undue hardship. The key is the impact of the accommodation on
legitimate business interests. The standard under Oregon law is higher than
under federal law. Under federal law, any accommodation requiring more than
minimal costs creates an undue burden. Opuku-Boateng v. California, 95 F3d
1461 (1996). However, in Nakashima, the Oregon Court of Appeals required a
significant or substantial burden before finding an undue hardship.
So, what do you do when an employee requests a different schedule or dress
code because of his or her religion? Similar to the realm of disability
discrimination laws, the initial step is to start an interactive process.
Sit down with the employee and ask him or her to suggest possible
accommodations. Investigate the feasibility of such accommodations in the
context of the job the employee holds. Even if you know that the belief
cannot be accommodated, do not skip the process. Failure to interact with
the employee may create liability in itself.
<< Newsletter Page