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http://www.hreonline.com/HRE/images/Keisha-AnnGray106x106.jpgA Case of the "Mondays" Not Covered By Title VII

Question: One of our employees has requested a religious accommodation to not work on Mondays, claiming she practices her religion on Mondays as it is a so-called holy day for her. The problem is she admits that she is not a member of any recognized religious group. She also claims that she is the founder of her "religion" and currently the only person she knows who practices it. Under these circumstances, are we still required to provide her with this religious accommodation?

Monday, July 15, 2013
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Answer: No, you are not required to provide this employee with this religious accommodation. In any religious discrimination claim under Title VII, the employee has the initial burden of establishing that she has a sincere religious belief, that she has given his employer notice of his sincere religious belief, and that her sincere religious belief conflicts with one of the employer's work requirements. Only when an employee is successful in establishing these three elements is the employer required to show that its failure to honor the employee's religious accommodation request would pose an undue hardship on the employer.

Your question raises an important issue concerning the threshold showing that employees are required to meet in order to trigger an employer's duty to accommodate their religious practices. Without proof of a sincerely held religious belief, employers are under no obligation to accommodate an employee's personal preferences. To warrant religious accommodation, your employee must establish both that her belief is religious in nature and that it is sincerely held. Based on the facts you present, it is doubtful that your employee will be able to establish that her belief is in fact a religious one, since she has admitted that she is the founder and only practicing member of her religion, and she has not articulated any basic tenets of her "religion."

Title VII defines the word religion to include all aspects of religious observance, practice and belief. 42 U.S.C. 2000(e)(j). The "truth" of a belief is not a question for courts, but rather only whether a belief is "truly held" is up for consideration. United States v. Seeger, 380 U.S. 163, 185 (1965). A court's inquiry with respect to whether an employee's beliefs are afforded Title VII protection has two parts: whether the employee's claimed beliefs are sincerely held and whether they are religious in nature. Eatman v. United Parcel Service, 194 F. Supp. 2d 256, 268 (S.D.N.Y 2002). Within this twofold analysis, a court must analyze the sincerity, as opposed to the verity, of an employee's religious beliefs. Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985). It appears that your employee may have a personal preference to observe her "religion" on Mondays. However, Title VII does not require employers to accommodate a purely personal preference. See EEOC v. Unión Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 55 (1st Cir.2002) (holding that a belief must be sincerely held and religious in order to require accommodation).

In deciding whether a belief is religious in nature courts have considered factors such as a religion's size, history, adherence to the principles of theology and tax-exempt status. See e.g. International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 441 (2d Cir.1981) (holding that Krishna Consciousness was a religion since it came out of the ancient and diverse Hindu tradition, attracted thousands of followers worldwide, had an elaborately articulated body of religious doctrine, and enjoyed nonprofit tax-exempt status by New York State and the Internal Revenue Service). Courts have also considered characteristics of the world's orthodox religions to determine whether a belief is religious, such as belief in a Supreme Deity or providing an explanation for human existence. See e.g. Alabama and Coushatta Tribes of Texas v. Trustees of Big Sandy Independent School Dist., 817 F. Supp. 1319, 1329 (E.D. Texas 1993) (holding that the Native American Indian movement was a religion since it "encompasses fundamental questions of the nature of reality and relationship of human beings to reality"). Courts have gone as far as looking to the testimony of anthropologists in deciding whether a practice or belief is religious, rather than cultural or based on personal preference. See e.g. Teterud v. Burns, 522 F.2d 357, 359 (8th Cir. 1975) (citing anthropologists in holding that a Native American's practice of wearing his hair long was a sincerely held religious belief because it was a tenet of the Indian religion).

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When these analyses are applied to your question, it becomes even more unlikely that your employee can meet the threshold needed for Title VII to require you to accommodate her personal preference of not working on Mondays.

Keisha-Ann G. Gray is senior counsel in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Jacklina A. Len assisted with this article.

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