Another Religious Accommodation Issue, Quirky Question # 122

Quirky Question # 122:

I read the religious discrimination question posed to your colleague in Seattle.  We have a slightly different issue.  All of our employees are required to wear identification tags when they are in our buildings.  The IDs have their pictures on them.  One of our employees recently advised us that it violated his religious beliefs to have his photo taken or to include his photo on the ID tag he wears.  He has asked us to accommodate his religious beliefs by foregoing our requirement of photo IDs.  We believe that the photo IDs serve a number of important purposes at our company.  Must we accommodate his request to provide him special treatment on this issue.

Dorsey’s Analysis:

You pose an interesting question regarding whether you are obligated to accommodate one of your employee’s religious beliefs by allowing him to disregard your policy requiring to display his photo on your company ID tag.  As a prefatory comment, I’d start with a refrain you’ve heard from me in previous Blog analyses – much of employment law involves a balancing act between two (or more) competing societal interests.  If an employer and employee cannot amicably resolve how these conflicting interests should be reconciled, courts will assume the responsibility for sorting out which societal interest should predominate.  At times, general principles can be articulated that will have widespread application.  At other times, however, the governing principles will be entirely dependent on the specific facts of a case.

Let me illustrate the above observation with an example.  In general, as you may have seen from my other Blog pieces addressing accommodating genuine religious beliefs, courts often focus on whether the requested accommodation would cause the employer an undue hardship.  But that general principle can be dramatically affected by the specific facts of a particular case.

You did not describe the nature of your business.  If, for example, your company manufactured hockey sticks, and there were not significant theft or security issues that mandated your company’s use of photo IDs, the accommodation sought by your employee might seem reasonable.  If, however, your company was a private security contractor with responsibility for guarding spent nuclear fuel rods, the requirement that every employee wear an identification card, with his or her picture, may be absolutely essential.  Accommodating an employee’s religious beliefs in this job environment would involve a dramatically different calculus than it would for a hockey stick manufacturer.

A recent case from the Eastern District of Pennsylvania, Cherry v. Sunoco, Inc., No. 07-cv-2235 (August 17, 2009), involved some of these issues.  The plaintiff, John Cherry, worked as a refinery operator at Defendant Sunoco’s Philadelphia refinery.  When he was hired in early 2001, he informed his employer of his religious beliefs, which were grounded on the Church of the True and Living God, a sect of Hebrew Israelites, that apparently prohibits its members from posing for pictures or photographs or from carrying such pictures or photographs on one’s person.  At the time of Cherry’s hiring, Sunoco was willing and able to accommodate his religious beliefs, and issued him an employee ID without a photograph.

Even after the events of September 11, 2001, the defendant employer still was able to accommodate plaintiff’s religious beliefs and did not compel him to pose for or carry a photo ID.  Sunoco did require plaintiff to report to security when he came into work, and, at times, plaintiff’s supervisor would have to verify his identity if the security guard on duty did not recognize him.

In the post-9/11 world, however, Congress began implementing various statutes to enhance our nation’s security.  Among the statutory provisions enacted by Congress was the Maritime Transportation Safety Act (MTSA), with the US Coast Guard adopting regulations to “implement portions of the maritime security regime.”  Sunoco, and specifically its Philadelphia Refinery where plaintiff worked (a port facility), was required to comply with the Coast Guard regulations by mid-2004.  Defendant developed a Facility Safety Plan that required all employees at the Philadelphia refinery to carry a photo ID.  At that point, plaintiff’s religious beliefs, which the defendant employer had accommodated for several years, became problematic.

Sunoco insisted that plaintiff pose for and begin wearing a photo ID.  Plaintiff refused, re-explaining his religious beliefs, and proposing several alternative solutions (e.g., fingerprinting; iris scan; escort to job location).  After checking with the Coast Guard as to whether any of these accommodations would suffice, and being informed that the photo ID requirement could not be waived, the defendant first suspended and later terminated plaintiff’s employment.

Upon his discharge, plaintiff sued under Title VII and the Pennsylvania Human Rights Act for religious discrimination.  As discussed in other Blog analyses, to establish a prima facie case, a plaintiff claiming religious discrimination must demonstrate that he: a) held a sincere religious belief that conflicted with a job requirement; b) notified his employer of the conflict; and c) was disciplined for failing to comply with the conflicting requirement.  The district court found that Cherry had established a prima facie case.  Once a prima facie case is established, the employer may demonstrate that it made good faith efforts to accommodate the employee’s religious beliefs or that doing so would cause it an undue hardship.  Because Sunoco acknowledged that it made no effort to accommodate the plaintiff’s religious beliefs once the MTSA and the Coast Guard regulations went into effect, the central issue in the Cherry case became whether Sunoco could accommodate plaintiff’s religious beliefs without experiencing an undue hardship.

As the trial court pointed out, “Under hardship is requiring the employer ‘to bear more than a de minimis cost’ in order to accommodate the employee’s religious practice.  Economic, as well as non-economic costs can impose an undue hardship on employers.  The Supreme Court has strongly suggested that ‘the undue hardship test is not a difficult threshold to pass.’”

Relying on analogous precedent, the district court concluded that it would constitute an undue hardship for an employer to require it to violate a valid criminal statute, thereby exposing its administrators to criminal prosecution and the possible consequences associated with prosecution.  Because the MTSA and the Coast Guard regulations mandated that all of the port facilities’ employees carry and display a photo ID and because there were potential criminal consequences for violating that requirement, the court concluded that it would cause the employer an undue hardship to accept any of the accommodations proposed by the plaintiff-employee.

The Cherry decision is instructive, though it may not be dispositive of the parallel situation your company is confronting.  To summarize, there are several critical issues you should examine when you are being asked to accommodate an employee’s religious beliefs.  First, are the religious beliefs sincere?  Second, do the employee’s religious beliefs conflict with some work requirement?  Third, has the employee notified your company of the conflict?  Fourth, can you accommodate the employee’s religious beliefs?  Fifth, would accommodating those beliefs cause your company an undue hardship (recognizing that establishing an undue hardship should not be limited to an economic calculus, and may not be a difficult burden to satisfy)?  The Cherry decision also demonstrates the importance of considering whether the work requirements or rules to which the employee has objected for religious reasons are based upon any external variables (e.g., federal statutes, state statutes, criminal law proscriptions, common law principles, significant public policies, etc.).  It may be that the most compelling justification for rejecting the employee’s request for an accommodation is grounded upon a source external to the employer rules and requirements.

Again, however, it may be perfectly appropriate to accommodate your employee’s request for a religious accommodation, including the specific request relating to your employee’s desire to avoid having his or her picture taken or wearing a photo ID.  As is evident in the Cherry case, despite a large workforce (over 1500 employees at the Philadelphia facility), Sunoco was able to accommodate its employee’s request to avoid using a photo ID for the several years preceding the passage of the MTSA and the Coast Guard regulations that altered the ID equation for port facilities.  It could be that your company has equally compelling justifications for requiring employees to display a photo ID and it could be that allowing your employee to disregard this requirement would cause your company an undue hardship.  But, before you leap to that conclusion, consider the mix of issues carefully.  You may discover that this request can be accommodated relatively easily with virtually no hardship, undue or otherwise, to your company.

Dorsey & Whitney

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