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Management Counsel
MANAGEMENT COUNSEL: LAW PRACTICE 101 By: Cathy Shuck
General Counsel East Tennessee Children’s Hospital
RELIGIOUS ACCOMMODATIONS
There has been much talk recently of religious “exemptions” from vaccine mandates, but “exemption” is not really the right term. Employers generally don’t have to exempt employees from bona fide employment requirements, even for religious reasons. They may, however, have to make “reasonable accommodations” for a religious belief.
Background
The U.S. and Tennessee Constitutions each protect individuals in the free exercise of their religious beliefs.1 However, Constitutional protections only restrict government entities from infringing on an individual’s right to exercise their religion; they do not restrict private employers.
Private employers are subject to Title VII of the federal Civil Rights Act of 1964 (“Title VII”), which protects employees and applicants from discrimination because of religion.2 Title VII defines religions as “all aspects of religious observance and practice, as well as belief.”3 Employees are entitled to a reasonable accommodation of their “religious” beliefs unless the accommodation would work a hardship on the employer.4
Title VII only applies to employers with 15 or more employees.5 The Tennessee Human Rights Act (THRA) provides similar protection from religious discrimination and applies to employers with eight or more employees.6 Critically, however, unlike Title VII the THRA does not include a reasonable accommodation provision.7
The imposition of most terms and conditions of employment, from shift scheduling to vaccine mandates, are generally not discriminatory, whether based on religion or on any other protected characteristic. But if a nondiscriminatory requirement affects an individual negatively due to their religious beliefs, they may be entitled to a reasonable accommodation—if the employer has 15 or more employees.8
Determining Eligibility for a Religious Accommodation
Employers must follow an “interactive process” when an employee requests a reasonable accommodation.9 This means asking the employee about the basis for requesting the accommodation and then working together to determine whether an accommodation can reasonably be made.
The first step is to ask the employee to articulate, in writing, the accommodation requested and the sincerely-held religious belief(s) that support the request. Importantly, the fact that the employee does or does not belong to a recognized religion, adhere to a religious text, or even have a spiritual leader is not dispositive. The Equal Employment Opportunity Commission’s (EEOC) Title VII regulations provide that religion includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views[.]” Moreover, “[t] he fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee[.]”10
Recent guidance from the EEOC notes that The employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.11 In other words, employers should generally move on to the discussion of a reasonable accommodation unless there is a reason to question the “religious nature” or “sincerity” of the belief. So, for example, if the employee’s written request appears to be downloaded from the internet, or leans more heavily on politics and personal opinion than spirituality, there may be a reason to doubt the sincerity of the belief. If the employee’s written request raises questions, the employer should follow up with a discussion(s) to probe the nature of the belief(s). Whatever the employer ultimately decides, it should be well-documented.12
Types of Reasonable Accommodations
Reasonably accommodating a sincerely-held religious belief does not always mean eliminating the requirement that conflicts with the belief. It may mean allowing the employee to satisfy it in a different way. For example, if vaccination conflicts with the belief, an accommodation could be allowing the employee to instead wear a mask at all times and/or be routinely tested. Alternatively, it could mean allowing the employee to work remotely to avoid being present in the office.
Undue Hardship Exception
The employer is not required to make an accommodation for an employee’s religious beliefs if doing so would be an undue hardship.13 If a religious accommodation imposes more than a “de minimis cost” on the employer, it constitutes an undue hardship. However, employers should be cautioned that judges on the Sixth Circuit and the U.S. Supreme Court are critical of the “de minimis” standard.14 Employers and employees are better served to try to work together to accommodate the employee’s legitimate beliefs and concerns, while still meeting the employer’s objectives.
1 See U.S. Const. Am. 1 and Tenn. Const. Art. 1 § 3. Note that the rights protected by the Tennessee Constitution are significantly broader than the federal protections, including the statement that “no human authority can, in any case whatever, control or interfere with the rights of conscience[.]” 2 42 U.S.C. § 2000e(2)(a). 3 42 U.S.C. § 2000e(j). 4 See id. 5 See 42 U.S.C. § 2000e(b). 6 See Tenn. Code Ann. §§ 4-21-102(5) (defining employer) and -102(4) (defining discriminatory practices) and § 4-21-401(a) (protecting employees from discrimination based on race or creed). 7 For discussion see Waverly D. Crenshaw, Jr. and Brian A. Pierce, Tennessee’s
Unique Religious Protections in Employment: Do They Mean What They Say? 1 Belmont L. Rev. (2014). This author is not aware of any cases finding a right to religious accommodation in the THRA; note that courts have rejected arguments to read a right to a reasonable accommodation into Tennessee’s Disability Act (TDA), which is similarly silent on the right to a reasonable accommodation. See, e.g.,
Jones v. Sharp Elecs. Corp., No. W2013-01817-COA-R3-CV at *5 (Tenn. Ct. App. 2014) (“Unlike its federal counterpart, the [ADA], the TDA does not impose a duty on employers to make reasonable accommodations to accommodate a disabled employee.”) 8 See Tenn. Op. Atty. Gen. No. 21-16 (Oct. 6, 2021) (noting that Tennessee law does not prohibit private employers from requiring their employees to be vaccinated). 9 See 42 U.S.C. § 12112 (ADA interactive process). 10 29 C.F.R. § 1605.1. Courts have generally agreed with the EEOC that whether a religion is “traditional” or even “recognized” is not determinative as to whether Title VII’s protections apply. See, e.g., United States v. Seeger, 380 U.S. 163 (1965);
Welsh v. United States, 398 U.S. 333 (1970); and Chenzira v. Cincinnati Children’s
Hosp. Med. Ctr., No. 1:11-cv-00917, 2012 WL 6721098 (W.D. Ohio Dec. 27, 2012). 11 https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-adarehabilitation-act-and-other-eeo-laws#K.12 (citing 29 C.F.R. 1605) (posted 12/16/20, updated 5/28/21) (emphasis added). 12 For guidance in navigating requests for COVID accommodations, see, e.g., Robin Shea, “Vaccination accommodation: Is that religious request sincere?” including links to a number of downloadable religious exemption requests, available at https://www.constangy.com/employment-labor-insider/vaccinationaccommodation-is-that-religious-request-sincere (posted Sept. 3, 2021). 13 See 42 U.S.C. § 2000e(j). 14 See Small v. Memphis Light, Gas & Water, 952 F.3d 821, 826-29 (6th Cir. 2020) (Thapar, J., concurring).
