Religious discrimination gets less attention than any other kind of discrimination.  There just have never been as many lawsuits involving religion as there have been involving race, sex, national orgin, age and disability.  But religious discrimination is still against the law, and there can be some tricky questions when it comes to this subject. 

Q: Can an employee refuse to work on Saturday or Sunday for religious reasons?

A: Maybe. If an employee has a sincerely held religious belief which prohibits work on a particular day of the week (usually Saturday or Sunday), an employer is obligated to determine whether it’s reasonably possible to accommodate the employee’s religious belief.

Q: Does the employee have to be a member of a church, synagogue, denomination, or some other recognized religious group in order to require an employer to accommodate his or her religious belief?

A: Probably not. The fact that an employee is a member of a recognized religious group which is known for its prohibition against work on Saturday or Sunday makes the employee’s request for a reasonable accommodation more compelling. But, even without a particular affiliation with such a religious group, it would be possible for an employee to sincerely hold such a religious belief on his or her own.

Q: What if an employee has been working on Saturdays or Sundays but suddenly informs his or her employer that, based on recent religious study, he or she has concluded that it’s wrong to work on Saturday or Sunday?

A: These facts don’t change the employer’s obligation to attempt a reasonable accommodation, as long as the employee’s religious belief is sincerely held. Perhaps this sudden change of heart on the part of the employee gives the employer more latitude in making sure that this belief is sincerely held, but as a practical matter, an employer is pretty much stuck with what the employee says in this regard.

Q: Does an employer have an absolute obligation to reasonably accommodate a religious belief which prohibits the employee from working on Saturday or Sunday?

A: No. An employer is obligated to accommodate the employee’s request if it doesn’t cause the employer an “undue hardship.” And it’s clear that an employer doesn’t have to go as far to reasonably accommodate an employee’s religious belief as an employer has to go to accommodate an employee’s disability under the Americans with Disabilities Act.  In other words, it’s easier for an employer to establish an undue hardship when it comes to religious accommodation than it is in the case of disability accommodation.

For example, let’s say that an employee has AIDS, which is a disability under the ADA. The employee’s co-workers say that they will refuse to work with the employee. Does this situation create an undue hardship for the employer, so that the employee with AIDS can be discharged or transferred to a location where there are no co-workers in close proximity? According to the EEOC regulations on the ADA, these facts wouldn’t constitute an undue hardship for the employer. On the other hand, if an employee objects to working on Sunday because of his or her religious beliefs and co-workers refuse to swap work days with the employee, the employer probably would be able to demonstrate that allowing the employee to be off on Sundays would cause an undue hardship–assuming there was no other way to accommodate the employee’s request (as discussed below).

Q: What else might cause the employer an undue hardship?

A: The cost of hiring a temporary replacement for the absent employee; the difficulty of training a temporary replacement to do a job only once a week; production data showing that temporary replacements make more mistakes and are less efficient; a collective bargaining agreement which prevents an employer from making the kind of transfer or job change that’s required to allow the employee to have Saturday or Sunday off; and other factors that exist because of the unique nature of an employer’s workplace or business.

Q: What are some possible accommodations for an employee’s request to be off on Saturday or Sunday because of his or her religious belief?

A: If the kind of job involved can be performed by a temporary replacement without much difficulty or expense, then using a temporary employee might very well be a reasonable accommodation. If a co-worker is agreeable to swapping days with the employee in question, this would be a way to accommodate the employee’s religious belief.

Q: What else?

A: Transferring the employee to another job which does not require Saturday or Sunday work; transferring the employee to another shift which does not require Saturday or Sunday work; allowing the employee to work during lunch breaks and other breaks to make up lost time; allowing the employee to take the day off without pay; shortening the employee’s regular work week by giving him Saturdays or Sundays off; allowing the employee to take a day of vacation each Saturday or Sunday until he or she uses it up; and whatever else the employer and the employee can agree on.

Q: Does an employer have to give the employee who objects to working on Saturday or Sunday the specific accommodation which the employee requests?

A: No. It’s within the employer’s discretion to decide what the accommodation will be, although it’s certainly advisable to at least consider what the employee has requested.

Let’s take an example. Suppose an employee says that his religious convictions prevent him from working on Sunday, and he requests that he be allowed to swap his normal Sunday work day with other employees in his department who ordinarily have Sunday off. The employer checks around with the other employees, and none of them are willing to make the change. However, the employer is aware of another lower-paying job in the company which doesn’t require Sunday work and which the employee in question is capable of performing. Under these circumstances, the employer’s offer of the lower-paying job to the employee probably constitutes a reasonable accommodation.

What is most important about an employee’s request for religious accommodation is that the employer give it serious consideration. The worst thing an employer can do is to dismiss the request out of hand or simply say, “We don’t consider such requests around here. We expect you to be at work when we tell you to be.” There may, in fact, be no reasonable accommodation for the employee. Or it may be that almost any kind of accommodation causes the employer an undue hardship because of the peculiar nature of the employee’s job or the employer’s business. But the employee does have the right to ask, and the employer has the obligation to consider the request. When this kind of request is made, it might be a good idea to obtain legal advice before making a final decision.

Q: In order to avoid the problems discussed above, can an employer ask about an applicant’s availability for Saturday or Sunday work and exclude any applicant who indicates that he or she can’t work on Saturday or Sunday?

A: The EEOC frowns on this kind of pre-employment question. Plus, the problems aren’t avoided; they are only confronted a little earlier. It’s probably better to ask this kind of question after a job offer has been made but before the person begins work. If he or she indicates that Saturday or Sunday work is a problem because of religious beliefs, the employer can then discuss the possibility of a reasonable accommodation. If it’s determined that there’s no reasonable accommodation or that the requested accommodation will cause an undue hardship, the job offer can then be withdrawn. Again, obtaining legal advice might be a good idea.