Dealing with the Divine

It is morning at a car dealership somewhere in America. The sales representatives gather in a meeting room. They have just finished going over the day's agenda. Someone gets up to leave, but then grudgingly remembers the morning routine and sits back down.

The most senior representative bows her head. The rest of the staff does too — with varying degrees of eagerness. Some frown, some put on beatific smiles. It is time to say the morning prayer.

Prayer groups — sponsored and un-sponsored — are showing up more and more in America's workplaces, raising a number of important issues and questions. In this junction of law and business, it is never wise to be caught unprepared.

There are no laws that say religious views can't be shared in the workplace. However, there are plenty that prevent discrimination against a person because of his or her religious preferences. Discrimination lawsuits can be financially devastating, and even allegations of misconduct can give a company a bad name for years.

Religion in the workplace has so many legal angles, and pitfalls that most employers try to keep it out altogether. Yet some employers feel strongly about their faith. They are willing to risk potential legal action to share and promote it.

Ignorance of the law is never an excuse to evade liability, however, and getting the right information about what can happen if religious enthusiasm turns into religious discrimination can mean the difference between a company prospering unmolested, or crashing and burning in the courtroom.

Where does the promotion of religious views at the workplace start to discriminate against people of different religions?

The Equal Employment Opportunity Commission (EEOC) says an employer is required to reasonably accommodate the religious belief of an employee or prospective employee, unless doing so would impose an undue hardship. Usually, a manager has to use his or her best judgment, which is often a code for “someone is not going to be happy, no matter what I decide.”

The EEOC defines religious practices to include moral or ethical beliefs as to what is right and wrong, which are sincerely held and backed by the strength of traditional religious views.

However, since the tenet of many religions is to spread their messages any way they can, this can easily come into conflict with the purpose of a business.

The U.S. Supreme Court has defined “undue hardship” as any costs greater than a very minor amount. Since that ruling, employers can (and do) refuse religious accommodation for the flimsiest of reasons.

However, the EEOC states that undue hardship only occurs if accommodating an employee's religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees' job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.

Perfectly clear, right? As mud. Moreover, “ordinary administrative costs” in the EEOC's definition seems to be much broader than the minor cost standard the Supreme Court lays down. Courts are following the very-minor-amount definition.

Employers also should be clear that any religious activities associated with work are voluntary and not done on work time.

There is no hard and fast rule as to what is acceptable. If prayer groups are allowed, prominent care must be taken to ensure that all employees are knowledgeable about their rights and responsibilities. This provides employers a first line of defense.

The courts in no way will tolerate mandatory prayer groups. Eliminate even the appearance of such a situation.

Are evangelical companies discriminatory in that only adherents of those tenets would feel comfortable there, so therefore only adherents need apply?

It isn't de facto discrimination, but it may be self-selecting if a company isn't careful. Some companies may want to avoid hiring people who don't mirror their views. But that is illegal.

Even subtle job-related related pressure on an employee can be viewed as harassment. If that employee is fired or if a more religious worker unfairly is promoted in his or her place, the employee could have a legitimate discrimination claim.

What do you say to an employee who wants to start a work-based prayer group or repeatedly brings up these prayer groups to other employees?

That is a business-based decision. But beware: if you open the door to one group you may be required to open the door to any other groups that want to do the same thing. The work day could be brought to a grinding halt by competing prayer groups trying to recruit members for their ranks.

Businesses need to make sure that proper education is available to protect all employees' rights. An employee who brings up the issue too often should be cautioned that this can be harassing behavior and divisive in the workplace. There aren't many issues more volatile than religion. If the purpose of a business is to build an atmosphere of teamwork, such behavior can quickly undermine it.

What happens when a supervisor asks about participating in a workplace prayer group? Isn't there implied pressure to join?

Again, a tricky issue. This is particularly thorny because a supervisor is involved, implicating the company and exerting at least apparent pressure for a subordinate to comply with the supervisor's requests.

As a second line of defense, a company needs an open-door policy for complaints and training for all employees on that policy. That way, any friction that arises can hopefully be resolved quickly without disrupting the company or producing a lawsuit.

Art Lambert is a labor and employment attorney with Epstein Becker Green Wickliff & Hall. He is at 214-397-4330 or [email protected].