Requests for religious accommodation can present difficult questions for employers — particularly multi-state employers subject to different state and local requirements. How much information can an employer request? How should an employer evaluate the request? What accommodations must be considered? And what should an employer do if the employee rejects the accommodation offered?
Two recent Ninth Circuit decisions provide useful guidance. In Weiss v. The Permanente Medical Group, Inc., the court addressed what an employee must tell an employer to establish a religious conflict. In Cherry v. Washington Department of Fish & Wildlife, the court addressed the employer’s obligations after that conflict is identified.
Although these decisions are currently binding only in the Ninth Circuit, together they provide a practical framework that can be useful for employers nationwide when confronting requests for religious accommodation.
Step 1: Acknowledge the Request and Identify the Conflict
When an employee raises a religious accommodation issue, employers should avoid immediately deciding whether the request will be granted or denied. The first step is to understand the conflict.
Title VII requires covered employers to reasonably accommodate employees’ sincerely held religious beliefs and practices unless doing so would impose an undue hardship. As confirmed in Weiss, an employee does not need to provide a detailed explanation of religious doctrine to justify a request for accommodation. Instead, the employee must only provide enough information for the employer to understand that an actual conflict exists between the employee’s religious belief or practice and a workplace requirement.
When presented with a request for a religious accommodation, an employer can ask the employee to identify the workplace requirement that conflicts with the employee’s religious belief or practice and to identify the accommodation the employee is requesting. Employers should avoid turning the initial conversation into an investigation of the employee’s religion, however.
Step 2: Ask Only the Questions Necessary to Evaluate the Request
Employers sometimes become concerned when an employee’s request appears inconsistent with the employee’s past conduct or when the employer is unfamiliar with the asserted religious practice. Weiss provides an important caution in this circumstance. The existence of a religious conflict and the sincerity of the employee’s belief are separate issues. The employer’s role is not to determine whether the employee’s religious interpretation is correct or whether the employee’s religion actually requires the practice.
That does not mean an employer can never request additional information. But questions should be focused on information reasonably necessary to understand the request and evaluate the accommodation — not on testing the employee’s theology. If additional information is needed, the Company should explain why it is needed and ask targeted questions. Companies should avoid broad requests for personal or religious history that are not necessary to evaluate the accommodation.
Step 3: Identify Potential Accommodations
Once the employer understands the conflict, it should identify possible ways to eliminate or reduce it. Depending on the circumstances, potential accommodations may include schedule or shift changes, changes in duties, remote work, reassignment, leave, dress or grooming modifications, or other workplace arrangements.
The employer should consider both the employee’s requested accommodation and alternatives that may address the conflict without creating an undue hardship. In Cherry, the Ninth Circuit held that the employer must take the initial step of proposing a reasonable accommodation that eliminates the religious conflict and reasonably preserves the employee’s employment status. Simply inviting employees to participate in a reassignment process is not necessarily sufficient. Employers should identify actual options to accommodate the employee and determine whether they would address the conflict.
Step 4: Present a Specific Accommodation Proposal
In Cherry, the Ninth Circuit distinguished between engaging in a process and actually proposing an accommodation. The employer in Cherry had offered employees the opportunity to pursue reassignment, but the record did not establish that the process was reasonably likely to result in a position that eliminated the conflict while preserving the employees’ compensation and other employment conditions. The employer should therefore be able to answer a straightforward question: What accommodation did we actually offer this employee?
And when answering the question, the employer should be able to say something more specific than “we considered the request” or “we engaged in the interactive process.” Instead, and employer should present the proposed accommodation in writing, identify when it will begin, explain how it addresses the religious conflict, and any material changes to the employee’s work.
Step 5: Give the Employee an Opportunity to Respond
The accommodation process is should be interactive, consisting of something more than the employer unilaterally imposing an outcome on the employee. Under the Ninth Circuit’s framework, once the employer proposes a reasonable accommodation, the employee has a corresponding obligation to cooperate in good faith. The employee is not necessarily entitled to the accommodation he or she prefers. Cherry emphasizes an important sequencing point: the employee’s duty to cooperate arises after the employer has proposed a possible accommodation.
If the employee rejects the proposed accommodation, an employer can ask why, and then determine whether the employee is proposing an alternative that would address the religious conflict. Companies should document the employee’s response and the employer’s consideration of any alternative.
Step 6: Evaluate Undue Hardship Based on Actual Facts
If the employer believes an accommodation cannot be provided, it should identify the specific burden that makes the accommodation unreasonable. Employers should avoid simply stating that an accommodation would create an undue hardship, keeping in mind that the concept of reasonable accommodation necessarily implies that the employer will permit something other than “business as usual” and that “undue hardship” is more than mere inconvenience. Instead, employers should identify actual operational, financial, staffing, safety, or other impacts. For example, if the burden involves staffing, the Company should quantify the staffing impact where possible. If it involves cost, identify the actual cost. If it involves safety or other legal requirements, identify the specific requirement and why the accommodation would interfere with it.
Cherry illustrates why this matters. The Ninth Circuit found it significant that the employer could not provide sufficient information demonstrating that its reassignment process was likely to produce reasonable accommodations.
For multi-state employers, the analysis may differ by location. An accommodation that is workable at one facility may create different operational or legal issues at another.
The Bottom Line
The recent Ninth Circuit decisions offer an important lesson for employers: religious accommodation requests should be treated as a process — not simply a yes-or-no decision. Weiss cautions employers against unnecessarily probing the validity or theology of an employee’s religious beliefs. Cherry emphasizes that employers must take an affirmative step toward an actual accommodation rather than merely offering an undefined process.
For employers, particularly those with multi-state workforces, the practical roadmap is straightforward: identify the conflict, ask only necessary questions, consider concrete accommodations, make a specific proposal, give the employee an opportunity to respond, evaluate undue hardship based on facts, and confirm the law applicable to the employee’s location before making the final decision.
If you are facing a request for religious accommodation, contact Michael Manoukian or your regular Lathrop GPM attorney.