Your Rights and Obligations
Religiously observant employees are often
confronted with conflicts between their employment obligations and their religious
beliefs. The following is meant to serve as a general guide to the protection of religious
rights under Federal employment law.
The rights described in this report are based on Federal law. Many
states also have laws which may provide additional protection for observant employees.
Moreover, ADL is working with other organizations to press for changes in Federal law that would benefit religious employees. One measure, the Workplace Religious Freedom Act, would overturn the Supreme Court's restrictive readings
of Federal law. With regard to the undue-hardship provision, the thrust of this
legislation is to override the Court's determination that anything greater than a minimal
cost constitutes undue hardship. Rather, the act would define undue hardship as an act
requiring significant difficulty or expense. Additionally, the act would give employees
more leeway in formulating accommodations. Under its terms, an employer must accept an
employee's suggested "reasonable accommodation" so long as it does not cause
What constitutes "reasonable accommodation" and "undue hardship" depends on
the facts in a particular situation. What this means is that an employer must attempt to
devise a method of allowing employees to practice their religious beliefs while still
maintaining their jobs. In some cases, accommodation may not be possible. However, the
employer bears the burden of showing that a serious attempt was made.
Neither the statute nor the courts have
clearly defined undue hardship The Supreme Court has ruled that an employer need not incur
more than minimal costs in order to accommodate an employee's religious practices.
Trans World Airlines v. Hardison, 432 U.S. 63 (1977).
Nevertheless, an employer may not simply refuse to
accommodate an employee, no matter what the circumstances. If the employer claims that
accommodation is not feasible because it would result in undue hardship, the employer must
demonstrate the actual effect accommodation would have on the business--the employer must
prove the hardship. However, once the employer has reasonably accommodated an employee's
religious needs, the employer need not consider the employee's alternative suggested
accommodations even if the employee's preferred accommodation would not cause undue
hardship to the employer. Ansonia Board of Education v. Philbrook, 479 U.S. 60
Some examples of possible accommodation without causing
"undue hardship" include voluntary substitutions, swaps, flexible scheduling
(allowing you to work on Sundays, Christmas, or other national holidays), lateral
transfers, and change of job assignments. An employer could allow an employee who is a
Sabbath observer to work longer hours on Monday through Thursday to enable the employee to
leave early on Friday to be home for the Sabbath. The employer must offer a "reasonable" means of accommodating an employee.
The United States government has enacted a law which
permits Federal employees to work compensatory overtime when their personal religious
beliefs require that they be absent from work. This overtime work may be performed either
before or after the employee takes time off for religious observance.
The accommodation duty does not require an employer to
violate the seniority rights of other employees. Trans World Airlines v. Hardison,
432 U.S. 63 (1977). Assigning employees with more seniority to a less desirable shift or
task in order to accommodate observance of a holiday is not mandated by law. Further,
under certain circumstances, it may be impossible to reasonably accommodate an employee's
refusal to work on the Sabbath without incurring undue hardship. For example, an employer
would not be required to train a part-time employee at substantial cost in deference to an
employee who is unable to work on Saturdays.
Employees seeking to observe their religious beliefs and
practices have a responsibility to do their part to help resolve conflicts between job
duties and religious needs. To this end, an employee should indicate his or her religious
commitment (leaving early on Fridays, not working Saturdays, and being unable to work on
holidays) at the time the job is accepted or immediately upon becoming observant if he or
she becomes more observant while employed. Employees who are union members should disclose
their religious observance to their union representative.
Many employers have also come to realize that in addition
to the legal requirement to accommodate religious employees, a commitment to religious
accommodation can improve employee morale by demonstrating that the company is sensitive
to its religious employees' needs. Accommodation in the workplace is a method of retaining
valued religious employees in the work force as well.
Frequently Asked Questions
|1. Are you entitled to be absent from work in order to observe a religious holiday or the Sabbath?|
|The obligation that an employer reasonably accommodate
the religious needs of employees includes Sabbath observance. Whether reasonable
accommodation can be devised will depend mainly on the type of work involved and the
employer's work force.|
|2. Is an employer always obligated to compensate you for your absence from work for High Holy Day worship or other Holy Days?|
|No. An employer is generally not required to pay the
employee for time taken off for religious observance. The United States Supreme Court
determined that allowing an employee to take unpaid leave for holiday observance would
generally be a reasonable accommodation with the added caveat that unpaid leave would not
be a reasonable accommodation when paid leave was provided for all purposes except
religious ones. Ansonia Board of Education v. Philbrook 479 U.S. 60 (1986). In
addition, an employer is not compelled to pay premium or overtime costs in order to
accommodate the religious needs of employees. Some employers do pay these costs
magnanimously and it is certainly legal; however, this is up to the employer.|
Requiring employers to pay the employee for taking time
off for religious observances would most likely be more than "de minimis," and,
therefore, impose an undue hardship on the employer. As with Sabbath observance, an
employee should indicate his or her religious commitment, including absences for Holy
Days, at the time the job is accepted. Some states have laws requiring the employee to
notify his or her employer a certain number of days before each absence for Holy Days.
Moreover, the employee should arrange with his or her employer to take religious Holy Days
as vacation days, personal days, and/or unpaid personal days.
|3. Can you wear religious symbols or garb in the workplace? For example, does an observant Jew have the right to wear a yarmulke in the workplace?|
|Employers must attempt to accommodate employees who, for
religious reasons, must maintain a particular physical appearance or manner of dress in
keeping with the tenets of their religion. Again, accommodation is possible if it can be
made without undue hardship to the employer. When it comes to religious apparel, only
safety concerns constitute undue hardship.|
A yarmulke, a small round skullcap, worn by
many observant Jews, will usually not interfere with an employee's job duties.
On the other hand, a worker might be removed from the job because his refusal to shave his
beard for religious reason would render him unable to use a required face mask or
|4. May an employer pose questions of a job applicant regarding the applicant's religion or religious practices?|
|Questions concerning an applicant's religion or the
religious holidays observed by an applicant are totally impermissible. For example, an
employer may not ask an applicant: "Does your religion prevent you from working
weekends or holidays," or "What church or synagogue do you attend" However,
during an interview an employer may describe the regular days, hours, or shifts of the
The employee has the responsibility to inform the
employer of any aspect of his or her religious observance which will affect job
responsibilities. For example, if an employee must leave early on Friday and cannot work
on Saturday, he or she should indicate this at the time the job is accepted.
|5. What are your rights when an employer schedules an employment related test on the Sabbath or Holy Day?|
|An employer may not schedule tests in a manner that
totally precludes the participation of Sabbath observers. As with the scheduling of work,
the employer must attempt to accommodate the religious needs of the employee or
prospective employee. The applicant, however, cannot be unreasonable in demanding
accommodation. For example, if the same test is being given in another location on another
day, the applicant may be required to take it elsewhere. In addition, the employee may be
required to take personal time to complete the test after business hours on the Monday
following the scheduled test date. The same law applies to schools and educational
institutions regarding final exams and other tests.|
|6. What protection do you have against religious harassment by a work supervisor or fellow employees?|
|Under Title VII, an employer has an affirmative
obligation to maintain a work environment free of harassment, intimidation, and insult.
The Supreme Court held that harassment need "not seriously affect employees'
psychological well being" in order to be actionable under Title VII "so long as
the environment would reasonably be perceived, and is perceived, as hostile or
abusive." Harris v. Forklift Systems Inc., 114 S.Ct. 367, 371 (1993). The
employer's obligation extends to situations where he or she knows of the harassment or has
reason to know of it and does nothing to clear up the situation. If fellow employees are
creating a hostile work environment through religious harassment, the employee has an
affirmative obligation to notify his/her supervisor of the harassment. If the harassment
continues after the supervisor is notified, the employee may file a complaint of
discrimination against the employer.|
© 1999 Anti-Defamation League