Employers: Avoid Comments About Employees’ Religions or Religious Practices

Oct 23, 2017 | Written by: Leslie A. Parikh, Esq. | Share

To steer clear of potential issues, employers should follow this plain and simple rule: don’t permit comments about employees’ religions or religious practices in the workplace.

The law is clear that an employer must offer “a reasonable accommodation” for an employee’s “sincerely held” religious practices, unless doing so would create an undue hardship.  This issue was discussed in my previous blog, Court Rules Against Employer For Not Accommodating Employee’s Religious Belief of “Mark of the Beast.”  As I pointed out there, the hardship bar is set fairly high, so it is important to go the extra mile in order to accommodate your employee’s request for religious accommodations.  Examples of such accommodations would include a minor schedule change or leave to attend prayer or church services, and certainly something as simple as allowing a worker to wear a religious head covering or head scarf as an exception to any particular dress code policy your institution may impose upon employees. 

In EEOC v. Abercrombie & Fitch, Samantha Elauf, a teenager who wore a head scarf or hijab as part of her Muslim faith, applied for a job at Abercrombie & Fitch.  She was denied employment for failing to conform to the company’s “look policy,” which banned head-coverings.  The United States Supreme Court held that an employer may not refuse to hire an applicant if the employer was motivated by avoiding the need to accommodate a religious practice.

Additionally, and more recently, in Ahmed v. Astoria Bank, et al.  (decided May 9, 2017), the Second Circuit Court of Appeals found that hostile work environment liability can be established where comments are made by other employees that demean one’s religion.

In Ahmed, the plaintiff, Sherin Ahmed, was an Egyptian and Muslim, and wore a hijab head-covering.  She worked for Astoria Bank for three months but claimed that managers subjected her to a hostile work environment because on several occasions, an employee made jokes regarding Ms. Ahmed’s hijab head-covering. Also, supervisors denied Ms. Ahmed’s request to be relieved without pay for a few hours on a major Muslim holiday, another supervisor made a comment regarding terrorists, and the vice president told Ms. Ahmed to remove her hijab, which he referred to as a “rag.”  Additionally, on another occasion a co-worker called Ms. Ahmed and two other Muslim employees “suspicious,” noting he was thankful that he worked on the other side of the building “in case you guys do anything.”

Prior to the appeal, the lower Court dismissed the case, holding the supervisors’ behavior was not severe or pervasive enough to create a hostile work environment, but the Second Circuit disagreed, finding that a jury could make that decision and sent the case to trial.

Employer Take-Aways

The best solution is prevention.  Employers would be prudent to do the following:

• Display clear and simple policies in multiple venues in the workplace.
• Provide ample training to all managers and employees. Make it clear that any “joke” or “off-hand comment” is unacceptable and inappropriate in the workplace.  Institute a zero-tolerance policy for all comments that target protected groups.
• Finally, implement a clear and simple complaint procedure that gives employees multiple avenues of redress. Then be responsive to complaints by promptly investigating them and taking meaningful action as appropriate in the face of an allegation.