RELIGIOUS REFUSALS TO DO WORK
QUESTION: When can an employee demand that he or she not be required to perform certain tasks? ANSWER: When performance of the work conflicts with the employee’s religious convictions and it is reasonable for the employer to accommodate the employee the agency likely would be required to let the employee avoid the task.
EEOC recently settled a suit against a private sector employer that included a $110,000 payment to the employee. The company manufactured many things, including parts for submarines. The employee, a Jehovah’s Witness, asked not to be assigned to work on any weapons of war due to his religious opposition to war. The employer decided that was not reasonable and fired him. On the brink of a federal trial, it decided otherwise.
This isn’t the first time EEOC has stood up for an employee’s right to ask to be relived of performing religiously objectionable tasks. There are cases dealing with the right of employee’s who refuse to support abortion activity in any way getting reassigned. EEOC’s Compliance Manual states, “When an employee’s religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee’s religion. Whether or not such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a CBA or seniority system.” The EEOC manual lists the following as examples of how this issue should be addressed:
EXAMPLE 42— Restaurant Server Excused from Singing Happy Birthday
Kim, a server at a restaurant, informed her manager that she would not be able to join other waitresses in singing “Happy Birthday” to customers because she is a Jehovah’s Witness whose religious beliefs do not allow her to celebrate holidays, including birthdays. There were enough servers on duty at any given time to perform this singing without affecting service. The manager refused any accommodation. If Kim files a Title VII charge alleging denial of religious accommodation, she will prevail because the restaurant could have accommodated her with little or no expense or disruption.
EXAMPLE 43— Pharmacist Excused from Providing Contraceptives
Neil, a pharmacist, was hired by a large corporation that operates numerous large pharmacies at which more than one pharmacist is on duty during all hours of operation. Neil informed his employer that he refused on religious grounds to participate in distributing contraceptives or answering any customer inquiries about contraceptives. The employer reasonably accommodated Neil by offering to allow Neil to signal to a co-worker who would take over servicing any customer who telephoned, faxed, or came to the pharmacy regarding contraceptives.
EXAMPLE 44— Pharmacist Not Permitted to Turn Away Customers
In the above example, assume that instead of facilitating the assistance of such customers by a co-worker, Neil leaves on hold indefinitely those who call on the phone about a contraceptive rather than transferring their calls, and walks away from in-store customers who seek to fill a contraceptive prescription rather than signaling a co-worker. The employer is not required to accommodate Neil’s request to remain in such a position yet avoid all situations where he might even briefly interact with customers who have requested contraceptives, or to accommodate a disruption of business operations. The employer may discipline or terminate Neil for not meeting legitimate expectations.
The employee should be accommodated in his or her current position if doing so does not pose an undue hardship. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. For example, if a pharmacist who has a religious objection to dispensing contraceptives can be accommodated without undue hardship by allowing the pharmacist to signal a co-worker to assist customers with such prescriptions, the employer cannot choose instead to accommodate by transferring the pharmacist to a different position. Moreover, if the pharmacist cannot be accommodated within his position, the employer cannot transfer the pharmacist to a position that entails less pay, responsibility, or opportunity for advancement unless a lateral transfer is unavailable or would otherwise pose an undue hardship.
While this issue has not yet received much visibility among federal employees, it can only be a matter of time before the issues of abortion, war, medical care, homosexuality, etc. generate cases among us.
(This was originally posted on December 4, 2011.)
As we have said, FEDSMILL’s advice (or EEOC’s for that matter) should not be relied upon as legal advice. If your union confronts a close call, contact the union attorney for a more certain answer relative to the facts you are dealing with.