If an employee came to you and said that he can’t comply with your company’s dress code because he belonged to the Church of Body Modification, what would you say? You may need to rethink that.
I don’t watch ABC’s “The View”. Not that there’s anything wrong with it. Though, an episode a couple of weeks ago prompted a thought about the role that social networking sites could have on religious expression in the workplace. On September 16th, the hosts of The View discussed how a North Carolina High School student was suspended because she wore a nose ring. The student alleged the school’s dress code violated her freedom of religion because she wore the nose ring as part of her faith in the Church of Body Modification. The hosts noted that that Church had approximately 3500 members, and may have been federally recognized as a tax-exempt religious entity.
Doing a little research, I found that this was not the first time such a claim was made by a Church member. According to news reports, Costco apparently fired a woman back in 2001 after she refused to remove an eyebrow ring. The employee sued for religious discrimination, claiming that she was a member of the Church of Body Modification, a religion that she said dated back to 1999.
Social media arguably makes it easier for employees to claim that they are members of a religion. Indeed, one of the primary benefits of social networking sites and blogs is the ability of individuals to assemble and participate in large groups holding common interests and expression. It could be for recreational, educational, political, or cultural reasons, and can be for religious purposes as well. But how far can they go? Do you need to recognize as a “religion” a group of employees claiming to belong to the “Church of Face Painting,” where employees believe that their favorite football teams will receive divine intervention on Sundays only if they paint their team’s colors on their faces every Friday in the office? Or, the “Church of Hendrixology”, where Jimi Hendrix music must be played while the employee performs any form of physical labor?
Title VII of the federal Civil Rights Act obligates an employer to offer a reasonable accommodation when faced with a conflict between an employee’s sincerely-held religious belief, and a policy or condition of employment maintained by the employer, unless doing so would create an undue hardship for the company. The statute defines “religion” as including “all aspects of religious observances and practice, as well as belief[.]” Inherent in that, however, is the requirement that the employee have a bona fide religious practice or belief. Courts have addressed this notion of what constitutes a religion in many different contexts, and the IRS even has guidelines to determine religious status for tax exemption purposes.
The line between church and state, and between religious observance and workplace rules, is getting increasingly more blurry. Social media is arguably making it easier for employees, and other groups of individuals, to express religious views and engage in common, organized religious observances. Employers need to understand their obligations without dismissing religion-based claims simply because they may not fall within the traditionally-held notions of what a “religion” may be.
Employer Take Away: What should you as an employer take away from this development?
(1) Extreme and frivolous claims will not generally lead to employer obligations in the area of required religious accommodation. However, in the event you learn through social media or otherwise that an employee or group of employees claims that a religious belief or practice must be accommodated, you should not merely ignore that claim because it seems silly, trivial or self-serving at first blush. You should effectively treat religious accommodation cases much like you would disability accommodation cases, and do at least a minimal analysis based on applicable legal definitions and requirements to determine whether there is sufficient indicia of a sincerely-held religious belief or practice.
(2) You should determine whether there is, in fact, a true conflict between the employee’s religious belief or practice and the policy or conduct rule being violated.
(3) You should engage in a form of interactive process to determine whether there is an accommodation that can be provided that alleviates the conflict, while not posing an undue hardship for your company. While wanting to avoid any precedent-setting accommodation, you may be able to avoid unwanted lawsuits and negative publicity by making simple changes to accommodate one’s religious beliefs.