CHRO Connects: “Gotta Have Faith? Religion in the Workplace”

Deputy Director Cheryl Sharp was a panelist on April 8, 2015 at a community forum entitled, “Gotta Have Faith? Religion in the Workplace.” Held at Shipman & Goodwin, the event also featured Steven Sheinberg of the Anti-Defamation League, Gabe Jiran of Shipman & Goodwin, and moderator Daniel Schwartz , also of Shipman & Goodwin. The speakers discussed issues related to rights and responsibilities regarding religion at work. The forum was a great success, enabling those representing complainants, respondents, and the government to come together and share their unique perspectives on the current state of the law.

One of the most fruitful discussions came when discussing an employer’s responsibility regarding interview questions and religion. The issue was whether an employer should ask during an interview if an applicant had religious beliefs that may require a workplace accommodation. While this is precisely what is at issue in the yet-to-be-decided U.S. Supreme Court case EEOC v. Abercrombie & Fitch Stores, Inc., the speakers presented their views on best practices. They echoed Justice Sotomayor’s position during oral argument that an employer should ask if an employee would be able to abide by workplace policies that might conflict with various religious practices.

Deputy Director Sharp pointed out that if employers delved into an applicant’s religion too much during an interview then that could open them up to a discrimination claim. Without a consistent policy to ask or not to ask, an employer could be liable for disparate treatment if they only questioned some applicants about their religion and not others: even if such a practice were consistently applied, it could be grounds for a disparate treatment claim if the employer hired one applicant over another on the basis of religion. The trouble is that even if the interviewer did not intend to discriminate, bringing up a person’s religion and then refusing to hire them could give rise to an inference of discrimination. This is particularly so when one interviewer brought religion up while others didn’t. As a best practice then, Deputy Director Sharp recommended not bringing religion into the interview at all unless it is volunteered by the applicant. She added that employers should make sure their policies are followed consistently by all interviewers. If employers are concerned about possibly having to provide a religious accommodation, they should ask the employee if they have any issue complying with the employer’s policies only after an offer of employment is made.

Other topics of the event included the speaker’s thoughts on how the case EEOC v. Abercrombie & Fitch Stores, Inc. would be decided, what constituted an “undue burden” for an employer with a duty to accommodate a sincerely held belief, and the origin and future of Religious Freedom Restoration Acts like the controversial one recently passed in Indiana.