Published in the Union Leader
By: Andrew R. Hamilton
By: Andrew R. Hamilton
Q: An employee has requested to take off three weeks in September to perform Hajj, a religious pilgrimage to Mecca required of all Muslims. September is our busiest time of the year, do I have to give him the days off?
A. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees (or prospective employees) on the basis of race, color, religion, sex or national origin. An employer must make reasonable accommodations of an employee’s religious observances, practices and beliefs, unless doing so would place an undue hardship on the conduct of the employer’s business. An undue hardship is considered anything more than a de minimis or minor expense or inconvenience to the employer.
Accommodation requests most often come up in the context of work schedules, dress and grooming, or religious expression or practice while at work. When an employee approaches his employer with an accommodation request, the employee must make clear both the need for the accommodation and the fact that his request is because of a conflict between his work and religious obligations. Once the employer is presented with such a request, she must either: (1) provide a reasonable accommodation that eliminates the conflict without unnecessarily hindering the employee’s conditions of employment; or (2) show that no accommodation is possible without an undue hardship.
In this situation, the employee has made it clear that he is requesting time off to carry out a religious observance or practice that conflicts with his work duties. Whether the employer must grant the request depends on a number of facts including:
•Can the employee convince his colleagues to voluntarily cover his duties while he is away or can the employer rearrange employees’ schedules to cover any gaps without burdening these other employees? If so, such accommodations appear reasonable and the employer would be required to grant the request.
•Has the employer allowed other employees to take time off during this “busy season” in the past? If so, it is unlikely that allowing this request would be an undue hardship.
•What costs would the employer incur if she allowed her employee’s request? If the employer has to hire an additional employee or pay overtime to cover the employee’s absence, such costs are likely more than de minimis and the employer would not have to undertake such an undue hardship.
•Can the employee fulfill his religious observance at a different time, outside of the busy season? Accommodation is a two-way street: Title VII requires that both employee and employer work together to ensure that both parties’ legitimate needs be met.
Although Hajj is performed at a specified time each year, other religious pilgrimages may be undertaken throughout the year. Sometimes the only way the employer may learn this is through respectful and thoughtful discussion with her employee. In the end, the key to resolving sensitive issues such as religious accommodations is communication and creativity.
Andrew Hamilton can be reached at [email protected]
Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
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