Written by attorney Robert M Fortgang

Reasonable Accommodations Under Title VII and Massachusetts - M.G.L. 151§4

I received a call from an employer engaged in retail sales regarding an employee who has represented that an expansion of her existing job responsibilities to include selling lottery tickets, would be against/offensive to the precepts of her religion. Given the liability that this employer may be exposed to under either state or federal law, I felt it prudent to exert a modest amount of effort at the outset to defuse this situation before it takes on a life of its own and becomes a real problem. ISSUE: What is an employer's obligations to an employee who proclaims that selling lottery tickets is offensive to her religious beliefs? THE LAW. The official Guidelines promulgated by Equal Employment Opportunity Commission, state that under Title VII an employer has an obligation to make "reasonable accommodations" to the religious needs of employees where such accommodations can be made without "undue hardship." Similarly, Massachusetts law prohibits an employer from imposing upon an individual as a condition of obtaining or retaining employment any terms or conditions, compliance with which would require such individual to violate or forego the practice of, his or her creed or religion as required by that creed or religion . Thus under both state and federal law, the employer must make "reasonable accommodation to the religious needs of such individual, which is defined as such accommodation to an employee's or prospective employee's religious observance or practice as does not cause undue hardship in the conduct of the employer's business. However, said "reasonable accommodation" must not cause undue hardship in the course and conduct of the employer's business. In analyzing a claim of undue hardship, inquiry must be made into the nature and operations of the employer's business to ascertain whether any of the conditions which might constitute an undue hardship are present, and must focus on whether the employer could have exercised its managerial discretion in such a way that the employee's religious obligations could have been reasonably accommodated. CASE LAW. Case law interpreting relevant statutes have identified a three part inquiry in any case involving allegations of religiously-based discrimination. Initially, the complainant must prove that the employer required the complainant to violate a religious practice. Then the complainant must demonstrate he or she gave the employer the required notice of the religious obligations and/or the offensive job duties. After the complainant has demonstrated this, the burden shifts to the employer to prove that accommodation of the complainant's religious obligations would impose on the employer an undue hardship. Significantly, in addressing the issue of undue hardship, the trier of fact will focus upon whether the employer could have exercised its managerial discretion in such a way that the employee's religious obligations could have been reasonably accommodated. APPLYING THE LAW TO THIS MATTER. In the instant matter, a company employee has represented that the selling/distributing of lottery tickets would be contrary to her religious belief as a Jehovah Witness. As the employee has already identified herself as a Jehovah Witness and has represented that the selling of lottery tickets would be offensive to her religion, I believe she has necessarily placed upon the employer, at a minimum, an obligation of attempting to identify a reasonable accommodation for her religion. While the employer could insist upon more detailed information concerning this particular religious prohibition, our research reveals an abundance of case law involving the Jehovah Witness sect with respect to other workplace issues. WHAT THIS EMPLOYER SHOULD DO. Consistent with relevant case law and applicable statutes, I believe that an employers' representative must sit down with this employee and work constructively with that individual to identify a satisfactory resolution of this matter. The very act of working with the employee, successful or not, will go a long way in demonstrating that this employer is committed to being an Equal Employment Opportunity Employer and that it was committed to finding a reasonable accommodation for this particular employee. Certain resolutions could include: scheduling this employee to work at times when another employee could be assigned to sell the lottery tickets, a different job, or a transfer to a different store. Certainly, the employer should seek the employee's input on any possible solution, as well. The employer should document everything.

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