Religion has surfaced as an issue of more importance in the workplace based on federal court and rulemaking actions. There are several topics concerning religion in employment. Some affect particular industry sectors, and others impact employers regardless of their industry. Keeping aware of these issues can protect employers from claims they didn’t expect, and in some cases, understanding that they have greater protection than before.
Public Sector Concerns
Public Sector employers have the most to be concerned about in this area due to protections under the First Amendment and Title VII. A general rule of thumb that might be helpful is not immediately assuming that there can be no religious expression due to the separation of church and state. Remember that the constitution says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” meaning that they cannot promote or interfere with a person’s religion. This means that an employee may express their religion in the workplace, so long as the expression is appropriate. Managing this dual requirement takes thought and is often resolved on a case-by-case basis.
Employers with 50 or more employees with $50,000 in contracts must follow the rules promulgated by the Office of Federal Contract Compliance Programs (OFCCP). The OFCCP published its final rule and allowed an exemption for religious groups to hire based upon employees’ religion. It is important to know that, as the OFFCP explains, it does not allow discrimination for any other reason, although it is broader than the ministerial exception explained below.
Discrimination in Hiring
Supreme Court rulings in 2020 advanced protection for religious organizations by allowing for more generous ministerial exceptions to Title VII. Title VII prohibits religious discrimination but provides a ministerial exception for those who minister to the faithful. In 2020, the Supreme Court allowed for those hiring teachers in religious schools to require that successful applicants share the religion of the entity hiring them.
Limited Exemption from Overtime
Churches and affiliated schools under the direct control of a church are parts of religious organizations whose employees may qualify for the ministerial exception. This could be teachers teaching the faith. A religious school may compensate them on a salary basis that would not otherwise comport with the Fair Labor Standards Act’s wage-and-hour requirements since ministers are exempt from those requirements.
Currently, to meet the obligations of Title VII religious accommodations, only a minimal burden must be overcome. A religious accommodation cannot present more than an undue hardship for the employer. Case law so far has weighed this burden as de minimis, or no more than a minimal cost, which is often easy to overcome for an employer, so long as they can tie their reason for denying the accommodation to a business reason, and not merely an employee relations issue. Some commentators see this changing due to the Supreme Court’s composition and judges on the appellate courts. Whether this burden will become a greater one for employers and closer to the accommodation required for disabilities remains to be seen.