In the wake of the United States Supreme Court’s ruling in the Hobby Lobby case, holding that the Religious Freedom Restoration Act provides protection to closely held corporations to refuse, for religious reasons, to provide birth control methods and services to employees under the Affordable Care Act’s contraceptive mandate, the issue of accommodating an employee’s religious beliefs has also been called into question.
In light of that, my colleague Jarad Lucan returns to the blog this morning with this post on reviewing Connecticut’s Fair Employment Practices Act’s (“CFEPA”) religious antidiscrimination provisions.
Let’s start with a “simple” proposition.
Generally speaking, Connecticut’s anti-discrimination laws make it illegal for an employer to discriminate against an employee because of that employee’s religious belief or practice.
While not explicit in the statutory framework, it is also illegal for an employer to refuse to accommodate an employee’s religious belief or practice that may run contrary to an employment requirement, unless such accommodation would cause an undue burden on the operation of the employer’s business.
Sounds simple enough, right?
So what’s the problem? Well for most employers, the problem is determining whether an employee’s religious belief is bona fide. In other words, is the employee’s religious belief “sincerely held?”
Indeed, if a religious belief is not sincerely held, then an employer does not have to provide an accommodation.
For example, an employer may rightfully question the sincerity of an employee’s request to wear a beard as an accommodation from the employer’s grooming policy based on his religious belief, if the employee is a long time employee, has never changed his religion, and has never worn a beard in the past.
While there is no bright line test (there rarely is in employment law) for determining the sincerity of an employee’s religious belief, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance in this area. As a reminder, Connecticut courts often look to federal antidiscrimination decisions and guidance when interpreting the CFEPA.
According to the EEOC, when questioning an employee’s belief, employers should begin with the assumption that any request for accommodation is based on a sincerely held religious belief, even if the employer is unfamiliar with the particular belief or practice.
If the employer has an objective basis to inquire about the employee’s sincerity, the employer may seek additional corroborating information, according to the EEOC. Such additional information does not have to be in a specific form, and it may be a written first-hand explanation without third-party verification. When third-party verification is needed, the third-party does not have to be a religious official or member, but can be another who is aware of that employee’s belief.
Employers are cautioned, however, not to demand unnecessary or excessive evidence to support an employee’s claim that he or she has a sincerely held religious belief. An employer who improperly demands information may be liable for denying a reasonable accommodation request, and may have its actions challenged as retaliatory or as a pattern of harassment.
After receiving information from the employee, an employer may seek to provide an employee with an accommodation or deny a request for an accommodation based on a determination that the employee’s asserted religious belief is not sincerely held.
Although there are only a handful of court decisions dealing with the issue of sincerity, the following factors, may help determine the sincerity of an employee’s religious belief:
- Whether the employee has behaved in a manner markedly inconsistent with the professed belief;
- Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
- Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
- Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
Of course, no factor is dispositive, and as always, an employer should seek additional guidance from a legal professional before making any determination that may lead to a claim of religious discrimination.