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Religion in the Workplace: A Primer for In-House Lawyers

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By Jonathan R. Tung, Esq. on August 15, 2016 1:57 PM

There are a number of things that should not be discussed casually at the office: politics, compensation, and of course, religion. Employees will inevitable bumble into these topics, which is usually okay. But things start getting dicey when the employer starts making decisions based on the political information he or she learned over the water cooler.

In-house counsel should be equipped with a solid understanding of religious discrimination in the workplace in order to best advise their corporate clients.

Religious Affiliation

Public employers cannot discriminate against persons based on certain key factors which have come to be known as the "suspect classifications": race, alienage, national origin, religious affiliation, and a handful of others. But it wasn't until the Civil Rights Act when similar limitations on discriminatory conduct began to apply to private employers, too.

Currently, private employers who have more than 15 employees cannot harass prospective or current employees based on religion, cannot take any adverse employment actions based on religion, cannot retaliate, and cannot deny reasonable accommodations without proving an undue burden.

When the rubber meets the road, it's probably best not to engage employees in discussions about religious subjects. Why make things more complicated than necessary?

Discrimination Starts From Within

Suits usually start because one of two situations. First, an employ is withheld from advancement she would have otherwise rightfully have earned because of religious affiliation. Or second, the employer creates a hostile and discriminatory work environment (or negligently disregards such an environment). If the employer fails to address the discriminatory element, a bad case of employment legal issues could get a whole lot worse, quickly.

Accommodations for employees to practice their religious beliefs need not be onerous to the company pocketbook. Courts have found that costs beyond a de minimus sum generally constitute an "undue burden." In terms of dollars and cents, this means that the company will certainly not be required to build a wing in the building for those to retire and pray.

Hobby Lobby: the Small Corporation Exception

So much of the law is about push and pull. Some small business owners may feel dismayed by what they might feel are unfairly onerous restrictions on how they do business with respect to religious discrimination laws.

The law is constantly in flux, most recently demonstrated in the famous Hobby Lobby decision of 2014 in which SCOTUS ruled that certain closely held corporations could refuse to pay for health insurance (contrary to the ACA) if used to pay for contraception if the refusal was based on religious reasons. To understand the nuances, you may want to read this case in full if you haven't already.

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