It’s not often that the private sector can look at the federal government as a role model for anything. But under President Donald Trump, the federal government has taken the lead in adopting policies that protect the religious expressions of federal workers, providing a model for everyone.
American employers generally understand that under Title VII, they must offer accommodations to employees whose religious needs conflict with the employer’s, such as when a religious employee needs a day off to accommodate a Sabbath or religious worship. However, what about the smaller, everyday expressions of faith that are not a matter of commandments or edicts but instead simply reflect active religious faith in practice throughout the workday, such as clothing with religious messages, religious jewelry, scriptural publications, religious conversations, or even the casual “God bless you”?
These aspects of religious faith are likewise protected, though employers often are unsure how to identify or accommodate these expressions of faith.
In July, the U.S. Office of Personnel Management issued guidance on workplace religious expression, noting that “agencies should allow personal religious expression by Federal employees to the greatest extent possible unless such expression would impose an undue hardship on business operations.” The OPM’s guidance includes an appendix with numerous examples of informal religious practices that are protected, along with an admonishment that federal agencies must respect those practices.
This guidance follows an earlier memo that acknowledged the U.S. Supreme Court’s holding in Groff v. DeJoy, which “clarified that the ‘undue hardship’ standard requires an employer to demonstrate substantial increased costs in relation to the conduct of its particular business to deny a religious accommodation.”
The latter memo also noted that despite the president’s well-publicized return-to-work efforts, federal agencies were “strongly encouraged” to consider telework as a “low-cost solution” to accommodate religious practices consistent with Groff.
Though these memoranda bind only federal agencies, they are offered in compliance with Title VII, which applies to private employers as well. In its respect for religious observance, the federal government now sets a good example for all employers.
Employers continue to offer mixed reactions to requests for religious accommodation, based in part on a pre-Groff misapprehension that every religious accommodation that poses a de minimis, or minimal, burden on an employer may be disregarded.
At the time First Liberty Institute client Gerald Groff requested to observe a Sabbath day of rest from work, the prevailing Supreme Court authority interpreted the “undue hardship” defense in Title VII to mean any effort or cost that is “more than … de minimis.” However, in Groff, the Supreme Court unanimously described the de minimis standard as “a mistake.” Following Groff, employers are now permitted to deny a religious accommodation only if it would pose “substantial increased costs.”
The new guidance for federal employees further recognizes that protected religious activity is not limited to that which a religion mandates, such as a Sabbath day observance, but also extends to discretionary informal practices, such as wearing a crucifix or Star of David, posting a Bible verse, group prayer, and religious discussions. This broad understanding of religious practice comports with Title VII, which protects “all aspects of religious observance and practice, as well as [but not limited to] belief.” To respect these passive displays of religion is unlikely to pose substantial increased costs, and so employers are required to respect them.
The OPM’s guidance further requires agencies to engage in a good-faith interactive process with employees requesting religious accommodation and encourages those agencies to “consider tailored solutions in ensuring compliance with Title VII.” This commitment to the interactive process is a refreshing example for employers to follow. To be sure, the process may lead to some awkward conversations for an employer who is well-advised to wade into these waters carefully. Employers may have to decide whether, for example, to permit an employee to use first names rather than preferred pronouns, to permit a sales clerk to wear a hijab, or to permit employees to wear facial hair.
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Other religious practices may include fasting, days or partial days of refraining from work, spiritual retreats, religious educational instruction such as homeschooling, and time off for attendance of special ceremonies. Yet employees across the nation are already familiar with the annual awkward conversations attendant to sexual harassment training, and it is not too much to ask human resources professionals to show equivalent sensitivity and risk-avoidance where religion is concerned.
Employers should be reluctant to interrogate employees for a showing of how their desired religious practices are mandated by their faith, and instead simply confirm that the request for religious accommodation stems from a sincere religious practice (understood broadly). The employer should accommodate any such request unless it imposes substantial increased cost to the employer.
Cliff Martin is senior counsel at First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.