By Meghan Droste, April 20, 2021
Welcome to the latest installment of our discussion of religious accommodations. So far, we have looked at various obligations agencies have when processing requests for accommodations, namely what an agency needs to prove in order to successfully defend against a failure to accommodate claim, and when agencies should not ask for more information or question the need for an accommodation. This month, we’re going to take a look at part of what an employee needs to show in order to prove an entitlement to an accommodation.
When requesting an accommodation, an employee must point to a religious practice or belief that conflicts with a work requirement (think back to our February discussion of EEOC v. Consol Energy, Inc. and Mr. Butcher’s belief that using a hand scanner would violate his religious faith regarding the Mark of the Beast). One key component to this is the employee providing enough information to show that a religious practice is actually part of the employee’s belief — in other words, that not being able to engage in the practice would violate the employee’s sincerely held religious beliefs.
As the Commission has explained, an agency is not required to provide accommodations for a voluntary activity that is connected with religion. For example, in Nesbitt v. U.S. Postal Service, EEOC App. No. 01996248 (Sept. 19, 2000), the complainant sought changes to his schedule to accommodate attending church services on Sundays, a teaching service on Wednesdays, and choir practice on Thursdays. The Commission upheld the administrative judge’s conclusion that the teaching service and choir practice “were more akin to ‘extra-curricular’ activities than fundamental tenets or obligations of faith.” Therefore, the agency did not have an obligation to provide accommodations for those activities. As the Commission explained, for the purposes of accommodations, there is a distinction between “a church member’s belief in the tenets of the religion” and participation in activities, like religious study or choir practice, that occur “as a desire of the participant.”
This does not mean, however, that the only activity an agency must accommodate is attending services. In Yau v. U.S. Postal Service, EEOC App. No. 07A50063 (May 24, 2006), the complainant requested leave to attend a Buddhist conference. The agency denied the request, stating that it was an “optional religious activity,” and, therefore, it did not have a duty to provide an accommodation for it. The Commission upheld the administrative judge’s finding of religious discrimination. Although a conference might appear to be similar to other “optional” activities, the record demonstrated that the complainant considered attendance at the conference to be a mandatory part of his religious practice. As the Commission noted, the complainant testified “regarding the commencement of his multi-year training to become a Buddhist Temple Master and Service Man and noted that his attendance at the conference was required of participants in the training program and those who maintained a temple in their home, which complaint and his wife did.”
What does all of this mean for agencies? As always, you should handle requests for accommodations on a case-by-case basis. While the employee needs to show that the activity in question is required and not optional, the agency should not jump to conclusions or make assumptions just because an activity is something other than attending services. Droste@FELTG.com