What is “religion”? May an employer question the sincerity of an employee’s alleged religious beliefs? The U.S. Supreme Court has defined "religious belief" as a belief that is: "religious" in the employee’s own scheme of things and sincerely held by the employee. Thus, the law’s protection extends beyond "traditional" religions.
One of the best examples of an attempt at a broad interpretation of the “sincerely held belief” standard is that of Bruce Anderson, an Orange County bus driver who was suspended and later fired from his job with the Orange County Transit Authority (OCTA) in 1996. The OCTA was running a promotion in conjunction with Carl’s Jr., which required all bus drivers to pass out coupons for free burgers to passengers. Anderson refused on the grounds that he was a vegetarian and “could not support the slaughtering of cows.”
The case eventually settled out of court, but according to at least one recent EEO attorney blogger, Ronda Higgins Thornton, Anderson’s “ethical beliefs would have been upheld as sincerely held” and the “OCTA should have attempted to make a reasonable accommodation before terminating him.” Attorney Thornton opines that a “reasonable accommodation in this case could have been allowing Anderson to place the coupons in a manner that passengers could pick them up without Anderson having to pass them out or transferring him to [a] non-driver position during the promotion.”
However, on the issue of “sincerely held religious belief,” I believe the better reasoned opinion is that of employment attorney Alan J. Reinach, set forth in the California Labor & Employment Law Review (March 2009 issue), in the cover article titled Religious Accommodation in California: How the Fair Employment and Housing Act Protections Compare to Title VII.
Attorney Reinach wrote:
"Employers may also challenge the sincerity of a particular belief. Sincerity questions rarely arise in actual litigation, since most cases involve terminations, and the willingness to suffer loss of a job is itself compelling evidence of sincerity. Courts also understand that they are not competent to evaluate the content of religious belief and thus are deferential to religious claims — even claims well outside the mainstream — if they do not seriously burden the employer. For example, in EEOC v. Red Robin, the court respected the plaintiff’s claim that his tattoos were religious, expressing service to the sun god Ra, notwithstanding how unorthodox and uncommon the practice. However, in Friedman . . . the court did not find veganism sufficiently religious to require a pharmaceutical manufacturer to accommodate a job applicant’s refusal to receive a mumps vaccine derived from chicken embryos. The court discussed federal cases extending conscience protections broadly, especially in the arena of conscientious objection to military service, but refused to regard veganism as providing the sort of comprehensive world view necessary to qualify as a religion."
Religious discrimination cases are very interesting to investigate and there is usually some way to bring the sides together at the end of the investigative process so as to avoid litigation. Here are some of the main issues that an investigator must look into:
- Does the complainant sincerely hold a religious belief that conflicts with employment requirements?
- Has the complainant informed his/her supervisor of the conflict?
- Has the complainant been penalized for failing to comply with employment requirements?
- Is the complainant’s belief or practice of a religious nature?
According to Attorney Thornton, “factors that may undermine an assertion of sincerely held beliefs are whether the employee behaves in a manner inconsistent with the professed belief and whether the benefit is likely being sought for secular reasons.” Accordingly, it is important to also investigate factors, which might also undermine the complainant’s assertion that he/she sincerely holds the professed belief(s).
And finally, could the employer have accommodated the religious belief without imposing an undue hardship on the employer?
The Supreme Court has defined "undue hardship" as expending more than a minimal effort or expense. This is much more favorable for employers than the standard under the Americans with Disabilities Act (ADA). Since that ruling, however, the Equal Employment Opportunity Commission (EEOC) and many courts have applied a more stringent test.