Religious Discrimination – What Every Business Owner Needs to Know

619763-LGSconundrumx-1382216657-586-640x480Under the Title VII of the Civil Rights Act of 1964, an employer may not discriminate against an employee on the basis of his or her religion. Employer must make reasonable accommodations for the religious observances of its employees unless it creates undue hardship on the business. As you can imagine, whether a requested accommodation is “reasonable” and whether providing such accommodation would create an “undue hardship” on a business, are often two hotly contested issues in religious discrimination cases.

Employee’s burden. An employee will be required to present evidence of the following in order to establish a case of religious discrimination:

(1) employee held a good faith religious belief;

(2) employee’s belief conflicted with an employment requirement;

(3) employer was informed of that belief; and

(4) employee suffered an adverse employment action for failing to comply with the conflicting employment requirement.

An employee who fails to establish one of the above elements cannot prevail on its claim of religious discrimination.  For example, earlier this year, I wrote about an employee whose claim for religious discrimination was dismissed because she failed to show that she told her employer (as opposed to her co-workers) that she could not perform a job function due to her religious beliefs.  Thus, she failed to show that her employer knew about her religious beliefs (third element above).

Employer’s burden. If an employee presents evidence of each element above, the employer may defend by showing that:

(1) it reasonably accommodated the employee; or

(2) it was unable to reasonably accommodate the employee’s needs without undue hardship.

The Fifth Circuit Court of Appeals recently addressed what constitutes an “undue hardship” for an employer as it relates to religious accommodation under Title VII. In Davis v. Fort Bend Countythe county fired its technical support supervisor, who skipped work to attend a church function.  A few days before the county’s scheduled upgrade of its computer system, Ms. Davis notified her supervisor that she would not be present during the update because she planned on attending a church service during that time.  Although Ms. Davis arranged for a replacement during her absence, the County fired her.

The Fifth Circuit explained that an undue burden may arise when: (1) an employer has to force one employee to substitute for another’s religious observance; or (2) an employee’s absence from the job leaves the employer short-handed.  Neither of these factors, however, were present in Fort Bend County, since Ms. Davis was able to find a volunteer employee to cover for her absence due to a church function.  Thus, the county was not left short-handed or suffered any costs associated with Ms. Davis’ absence. Therefore, the county failed to establish an undue hardship.

BOTTOM LINE FOR BUSINESS OWNERS: When an employee requests time off or asks for another accommodation due to his or her religion, whatever that religion might be, a business owner should consider whether granting such a request will create an undue hardship on the business.  If the answer is “no,” then the request should be granted.

The most commonly requested religious accommodations have to do with the dress and/or grooming requirements associated with certain religions.  An employer facing such a request, should read the U.S. Equal Employment Opportunity Commission Religious Garb and Grooming in the Workplace guide recently issued by the EEOC, which provides a lot of examples on how to handle specific requests.

Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice.  His practice includes commercial, intellectual property and employment litigation.  You can contact her directly at or (214) 722-7108.

An Employee Claiming Unlawful Discharge Based on Religious Beliefs Must Show That the Management and not Coworkers Knew About Such Beliefs – Explains the Fifth Circuit

The Fifth Circuit Court of Appeals is notorious for being pro-business and pro-employer, and its last week’s ruling in Nobach v. Woodland Village Nursing Center, Inc., et al. does little to change that reputation.

In this case, Kelsey Nobach, a nursing home activities aide was discharged by Woodland Village Nursing Center after she refused to pray the Rosary with a resident, which was a regularly scheduled activity when requested.  She sued Woodland for violating Title VII of Civil Rights Act of 1964 by unlawfully discharging her because of her religion. The jury found in Nobach’s favor and awarded her $69,584 with $55,200 being for emotional distress and mental anguish, but the Fifth Circuit Court of Appeals reversed.

On September 19, 2009, a certified nurse assistant (“CNA”), a non-supervisory employee with no responsibilities over Nobach, told Nobach that a resident requested that the Rosary be read to her. Nobach told the CNA that she could not read it because it was against her religion.

The resident complained to management, and five days later, the Woodland’s activities director called Nobach into her office and told her she was fired for failing to assist a resident with a prayer.  She told Nobach: “I don’t care if it’s your fifth write-up or not. I would have fired you for this instance alone.” Nobach—for the first time—then informed the director that performing the Rosary was against her religion, stating: “Well, I can’t pray the Rosary. It’s against my religion.” The director’s response was: “I don’t care if it is against your religion or not. If you don’t do it, it’s insubordination.” After Nobach was fired, she explained that she was a former Jehovah’s Witness and still adhered to many of their beliefs.

The Court explained that Title VII makes it unlawful for an employer to discharge an individual “because of such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). An employee may prove intentional discrimination “through either direct or circumstantial evidence.” Nobach argued that she offered direct evidence of Woodland’s discriminatory animus that motivated her discharge, which was evidenced by Woodland’s acknowledgement that she was fired for not praying the Rosary with the resident, and the Woodland’s director’s statement that she did not care if performing the Rosary was against Nobach’s religion, she still would have been fired because to refuse to perform the Rosary was insubordination.

The Fifth Circuit, however, found that Nobach failed to provide even one piece of evidence that showed that Nobach ever advised anyone involved in her discharge that praying the Rosary was against her religion. Nor did she claim that the CNA told any of Nobach’s supervisors that her refusal was based on her religion. The only time that Nobach actually advised her supervisor that her refusal to perform a job duty was motivated by her religious beliefs, was after she had already been discharged. As the Court said, “[i]n sum, she has offered no evidence that Woodland came to know of her bona-fide religious beliefs until after she was actually discharged.”

TAKEAWAY FOR EMPLOYEES:  When requesting a religious accommodation such as a deviation from a job duty that would violate their religious beliefs, employees must convey their request to their supervisors or the management and not just other coworkers.

TAKEAWAY FOR EMPLOYERS: When firing or letting go an employee, saying less is almost always better. It is possible that if the director who discharged Nobach used less inflammatory language instead of telling Nobach that she didn’t care if reading the Rosary was against her religion, Nobach would have been less likely to file a lawsuit. Firing an employee can get emotional, especially if there is a troubled history with the employee, however, it is important to remain cool and collected and not make any statements that the employee can later use as an ammunition to bring an unlawful discharge claim.

Leiza Dolghih frequently advises employers on how to handle troublesome employees, assists with responding to E.E.O.C. charges, and litigates employment disputes. For more information, e-mail