Accommodation of Religious Beliefs and Practices – Is the Request “Sincerely Held” and of a “Religious” Nature?

February 2010

Federal and state anti-discrimination laws require that an employer reasonably accommodate the sincerely held religious beliefs, practices or observances of an employee when such beliefs, practices or observances conflict with a job requirement and accommodation is possible without undue hardship on the employer.

Threshold questions that arise include whether the employee has presented a request that is truly religious in nature and whether the employee’s belief is sincerely held. However, mere assumptions in this area are perilous and the EEOC favors a broad interpretation. Courts tend to avoid deciding whether an employee is sincere or whether the proposed practice is religious, as those usually are hotly disputed facts that are not susceptible to easy determination. 

One recent case involved an employee who had worked for a retail clothing store for ten months when she experienced a religious conversion and thereafter announced that she no longer was able to wear the uniform required by the employer (pants and skirts falling just below the buttocks). The employee claimed that adherence to her religious belief now prohibited her from wearing pants or any skirts above the knee, even though she had done so for the previous ten months of her employment. This is an issue which also periodically arises in health care facilities where an employee has a religious conversion and argues that the employee can no longer work on Saturdays, the employee’s Sabbath. 

The employer in the retail clothing store case questioned the sincerity of plaintiff’s newly-found religious belief, particularly after she showed up to her deposition wearing clothing that appeared to be in contradiction to her belief. Nonetheless, the Court refused to grant summary judgment for the employer on the sincerity issue, finding that it was a “quintessential fact issue” that was reserved for the jury to make. Thus, the case would have to be litigated on this and other disputed issues of fact (e.g., whether the plaintiff’s request to be excused from the uniform requirements caused undue hardship to the employer).

Another issue that sometimes arises is whether the request is truly religious. One plaintiff claimed that the employer’s policy forbidding facial piercings violated the tenets of her religion-the Church of Body Modification, a group with over 1,000 adherents and a website. The Court in that case merely assumed without deciding that the request was religious and went on to rule that the employer attempted to reasonably accommodate when it allowed the plaintiff to wear clear plastic retainers or flesh colored band-aids over her piercings. Although the CBM is new and not widely followed, it still might be held to be a religion for purposes of the statute. 

The outer limits of religiosity were tested in one memorable case in which the plaintiff espoused his belief that consuming Kozy Kitten cat food was necessary to his well-being and, thus, should be considered a religious observance. This was too much for the Court, which found that plaintiff’s affinity for cat food was a personal preference rather than a deeply held religious conviction about an individual’s place in the Universe. Personal preferences are not protected by the statute, as another Court held when it ruled against a self-professed “Confederate Southern Christian” who wanted to display the Confederate flag at work. The plaintiff in that case argued that the Confederate “Stars and Bars” was a religious symbol since it incorporates the cross of St. Andrew (a patron saint of Scotland) and would be interpreted as a Greek letter “X,” an ancient symbol for Christ. The Court sidestepped the “delicate intricacies” of interpreting religious symbols by noting that plaintiff really wanted to share his Southern heritage, which was a personal preference rather than a religious belief and, thus, not covered by the statute.

The above examples should not be taken to suggest that an employer cannot or should not inquire as to the nature of the “religious” belief or practice. To the contrary, the employee has the burden of showing that the belief or practice is religious in nature rather than a personal preference. However, an employer should avoid unwarranted conclusions from the request because the “religion” is new, not widely practiced, or unorthodox, or that the employee experienced a recent conversion. Instead, it is best to work through all of this and to still engage in the interactive process with the employee (for example, a letter from clergy or from a religious text may be one way of proving that a belief or practice is religious but it is not the only way), including the issue of whether there is a reasonable accommodation that will not cause undue hardship on the employer.