Required Work Days and Sincerely Held Religious Belief

Author: LegalEase Solutions

QUESTION PRESENTED

 Whether an employer can make an employee agree to work on a specific day as a condition precedent to accepting a new position under US Civil Rights Act of 1964, Maryland’s Anti-Discrimination law (Annotated Code Article 49B and State Personnel and Pensions Article §2-302), and Code of Fair Employment Practices (Executive Order 01.01.2007), when working on the required day would violate the employee’s sincerely held religious belief?

 

SHORT ANSWER

              Under federal law, although it is not an unlawful employment practice for an employer to apply different terms and conditions  to different types of employment, the Civil Rights Act requires an employer to make some attempts to make reasonable accommodations for the religious needs of the employee.

The Maryland Fair Employment Practices Law tracks the law in regards to Title VII. However, there are no provisions in Fair Employment Practices Act that authorize direct civil lawsuits, either by aggrieved individuals or the Commission, for claims of employment discrimination. Instead, the complainant must file a FEPA claim with the Commission and pursue the administrative remedies and receive a final decision before they can proceed to any potential suit.

 

RESEARCH FINDINGS

Federal Law

  • Employer practices

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2

 42 U.S.C. § 2000e-2(a) prohibits an employer from “fail[ing] or refus[ing] to hire or [from] discharge[ing] any individual, or otherwise . . . discriminate[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”  Id.

Soon after the Civil Rights Act went into effect, courts had to grapple with the question of whether it was prohibited under “§ 703(a)(1) to discharge or refuse to hire a person who for religious reasons refused to work during the employer’s normal work-week.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 72, 97 S. Ct. 2264, 2270-71, 53 L. Ed. 2d 113 (1977) (quoting 29 CFR s 1605.1 (1967)). “In 1966 an EEOC guideline dealing with this problem declared that an employer had an obligation under the statute to accommodate to the reasonable religious needs of employees . . . where such accommodation can be made without serious inconvenience to the conduct of the business.” Id. “In 1967 the EEOC amended its guidelines to require employers ‘to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer’s business.’” Id. (quoting 29 CFR s 1605.1 (1968)).

“In the 1972 amendment to Title VII, § 701(j), was enacted to “protect Sabbath observers whose employers fail to adjust work schedules to fit their needs. The Act thus requires that an employer, short of undue hardship, make reasonable accommodations to the religious needs of its employees. It is also clear that the burden is on the employer to offer this accommodation.” E.E.O.C. v. Ithaca Indus., Inc., 849 F.2d 116, 118 (4th Cir. 1988).

Still, “the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. Moreover, the employer need not provide the employee with his or her preferred accommodation. Rather, so long as the employer has offered a reasonable accommodation, it has fulfilled its duty under Title VII.” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312-13 (4th Cir. 2008). “The reasonableness of an employer’s attempt to accommodate is determined on a case-by-case basis.” Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir. 1994). “If the employer’s efforts fail to eliminate the employee’s religious conflict, the burden remains on the employer to establish that it is unable to reasonably accommodate the employee’s beliefs without incurring undue hardship.” Id. Thus, “[t]o require an employer to bear more than a de minimis cost in order to accommodate an employee’s religious beliefs is an undue hardship.” Id.

Furthermore, “the Court observed that the statute provides no guidance for determining the degree of accommodation that is required of an employer.” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 313-14 (4th Cir. 2008). Instead, “the Court found that while the employer’s statutory obligation to make reasonable accommodation was clear, the precise reach of that obligation ha[d] never been spelled out by Congress.” Id. While locating the degree of accommodation required under the statute, “the Court recognized that the line was one of reasonable, not total accommodation.” Id.

However, “it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 97 S. Ct. 2264, 2275, 53 L. Ed. 2d 113 (1977). Also, the “Congress recognized that because of business necessity and the legitimate rights of other employees, it could not impose a duty on the employer to accommodate at all costs.” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 313 (4th Cir. 2008). Hence, the Court opined that, “the combination of vacation days, floating holidays, shift swaps, and unpaid leave time could be structured in a way to permit most employees the opportunity to meet all of their religious observances.” Id. at 307, 316.

Accordingly, “employers must be given leeway to plan their business operations and possible accommodative options in advance, relying on an accommodation’s predictable consequences along the way.” Id. at 307, 317.  Hence, “an employer is not required to accommodate an employee’s religious need if it would impose personally and directly on fellow employees.” Id. “Taken together, these standards ensure that while an employer must actively attempt to accommodate an employee’s religious expression or conduct, it is not required to do so at all costs.” Id. at. 307, 314-15.

For instance:

[t]he discharge of an employee who for religious reasons had refused to work on Sundays was there held by the Court of Appeals not to be an unlawful employment practice because the manner in which the employer allocated Sunday work assignments was discriminatory in neither its purpose nor effect; and consistent with the 1967 EEOC guidelines, the employer had made a reasonable accommodation of the employee’s beliefs by giving him the opportunity to secure a replacement for his Sunday work.

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 73, 97 S. Ct. 2264, 2271, 53 L. Ed. 2d 113 (1977)(emphasis added).

However, “‘[i]f the employee establishes a prima facie case, the burden then shifts to the employer to show that it could not [reasonably] accommodate the plaintiff’s religious needs without undue hardship.’” E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307, 312 (4th Cir. 2008) (quoting Chalmers, 101 F.3d at 1019; see also 42 U.S.C. § 2000e(j)).

To satisfy its burden:

the employer must demonstrate either

(1) that it provided the plaintiff with a reasonable accommodation for his or her religious observances or

(2) that such accommodation was not provided because it would have caused an undue hardship—that is, it would have ‘result[ed] in ‘more than a de minimis cost’ to the employer.

 

Id. (quoting Philbrook, 479 U.S. at 67, (quoting Hardison, 432 U.S. at 84)).

In sum if the plaintiff has established a prima facie case, then “the burden is on the employer to show either (1) that it has provided the plaintiff with a reasonable, though not necessarily a total, accommodation or (2) that such reasonable accommodation was not possible without causing undue hardship to the conduct of its business.” Id. at 307, 315. Therefore, there is the “importance of bilateral cooperation between an employer and employee in their search for a reasonable accommodation.” Id. at 307, 316.

Maryland’s Anti-Discrimination law

(a) An employer may not:

(1) fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual’s compensation, terms, conditions, or privileges of employment because of:

(i) the individual’s race, color, religion, sex, age, national origin, marital status, sexual orientation, gender identity, genetic information, or disability unrelated in nature and extent so as to reasonably preclude the performance of the employment; ***

(2) limit, segregate, or classify its employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual’s status as an employee because of:

(i) the individual’s race, color, religion, sex, age, national origin, marital status, sexual orientation, gender identity, genetic information, or disability unrelated in nature and extent so as to reasonably preclude the performance of the employment; ***

Md. Code Ann., State Gov’t § 20-606

In Makovi v. Sherwin-Williams Co., 316 Md. 603, 639, 561 A.2d 179, 197 (1989), when the employee alleged handicap discrimination, “[t]he Court of Special Appeals held that Article 49B did not create a private cause of action of that type ; the administrative remedy had to be followed.” Id. “Like its federal counterpart, the original version of the Maryland statute declared discriminatory employment practices to be unlawful. It provided for limited enforcement through an administrative agency.” Id. “The General Assembly of Maryland responded to Title VII by enacting the Maryland Fair Employment Practices Law.” Id. at 181.

Code of Fair Employment Practices

Article III – Cooperation with the Maryland Commission on Human Relations and United States Equal Employment Opportunity Commission

  1. In accordance with the requirements of applicable federal and State law governing equal employment opportunity, the State Personnel and Pensions Article, and this Executive Order, all heads of departments and units in the Executive Branch shall cooperate fully with the Maryland Commission on Human Relations, the United States Equal Employment Opportunity Commission and any other federal or State agency investigating discrimination and duly comply with any validly adopted rules, regulations, and orders for effectuating the State’s policies against discrimination and resolving complaints of discrimination.
  2. Every attempt shall be made to resolve complaints of discrimination within a department or unit; however, employees who file complaints of discrimination with agency Fair Practices Officers or Equal Employment Opportunity Officers

shall be advised of their right to file a complaint with the Maryland Commission

on Human Relations and the United States Equal Employment Opportunity Commission. [1]

“It is well settled that the list of unlawful employment practices enumerated in Article 49B, § 16 does not create causes of action. [N]o common law cause of action for employment discrimination; FEPA does not establish private cause of action.” Maryland Comm’n on Human Relations v. Downey Commc’ns, Inc., 110 Md. App. 493, 531, 678 A.2d 55, 74 (1996). “There are no provisions in FEPA that authorize direct civil lawsuits, either by aggrieved individuals or the Commission, for claims of employment discrimination prohibited by § 16. Instead, the complainant must file a FEPA claim with the Commission and pursue the administrative remedies.” Id. at 79.

State Personnel and Pensions Article 

Fair opportunities for employees and applicants for employment

***Discriminatory personnel actions prohibited

(b)(1) Except as provided in paragraph

(2) of this subsection or by other law, all personnel actions concerning a State employee or applicant for employment in State government shall be made without regard to:

***

(x) religious affiliation, belief, or opinion;

Md. Code Ann., State Pers. & Pens. § 2-302

The Secretary shall adopt regulations that provide for work schedules to allow an employee whose religious beliefs require absence from work to perform optional, compensatory work outside of the employee’s regular work hours to offset the absence.

Md. Code Ann., State Pers. & Pens. § 9-802

“In Maryland, in a statutory employment discrimination action, the plaintiff [employee] must prove that the employer committed a discriminatory employment act in violation of § 16.” Brandon v. Molesworth, 104 Md. App. 167, 187-88, 655 A.2d 1292, 1302-03 (1995) aff’d in part, rev’d in part, 341 Md. 621, 672 A.2d 608 (1996). Accordingly, “[i]n order to prevail in such an action, the plaintiff must prove that he or she is a member of a class protected by the Act and that the employer’s decision to discharge was made because of the employee’s membership in that class.” Id. (citing Art. 49B, § 16(a)). Therefore, “[a] critical issue in discrimination cases, therefore, is whether, and the extent to which, the employer discharged the employee because of a discriminatory animus or intent.” Id.

In sum, the above appears to indicate that Maryland law and executive orders in large part track federal law. Although little to no direct law is available at the state level, the general proposition that the Maryland law tracks Title VII is a strong indicator that federal case law is likely carries persuasive precedent.

CONCLUSION

Based on the foregoing, it appears that, if the employer has fulfilled the obligation of providing reasonable accommodation to the prospective, then it has fulfilled its duty under the statutes.

[1] http://www.transgenderlaw.org/ndlaws/EO_MD_2007.pdf