Recently, a Macy’s employee was fired because she refused to allow a teenage transgender customer use of the women’s dressing area. Natalie Johnson, who worked at a Macy’s in San Antonio, Texas, watched the teenager shop in the women’s department. When Johnson saw the teenager in the women’s dressing room, she told the teen “You’re a man,” and that the teen could not change in the women’s area.
Macys’ confronted Johnson and reminded her that the company’s policy permits individuals to use the dressing room of the gender they identify with. Johnson said she would not comply with the policy because it was contrary to her religious beliefs. As a result, Macy’s fired her and Johnson subsequently filed a complaint against the company with the U.S. Equal Employment Opportunity Commission.
While the outcome of Johnson’s complaint remains to be seen, the situation between her and Macy’s highlights the difficulty employers have balancing conflicts between workplace policies and an employee’s religious beliefs. In order to navigate through these often murky situations, employers should keep the following points in mind.
1. Religious beliefs must be accommodated. Both federal and state discrimination laws require employers to accommodate their employees’ sincerely held religious beliefs, practices and observances unless providing the accommodation would create an undue hardship. The accommodation will usually require the employer to make an exemption from, or adjustment to, the particular workplace policy so that the employee can practice his or her religion. This can include changing a work schedule, transferring an employee to a different position, or exempting them from a dress and grooming policy.
2. Employees must request accommodation. Second, an employee who seeks a religious accommodation must also make the employer aware of the need for an accommodation and that it is being requested because of a conflict between work and religion. Once the employer is aware of a request for an accommodation, the employer and employee should discuss whether an accommodation is available and can be accomplished without imposing an undue burden on the employer’s business operations. While holding a discussion is not required under the law, it is a good practice to do so. For example, it may be difficult for an employer to argue an accommodation would have created an undue burden for it when no discussion about possible accommodations ever took place.
3. Employers do not have to tolerate business disruptions. Although employers are required to accommodate employees’ religious beliefs, they are not required to accommodate disruptions to business operations which can include a refusal to assist customers. For example, in Noesen v. Medical Staffing Network, a pharmacist who refused on religious grounds to fill birth control prescriptions was offered the accommodation of not processing such prescriptions. The store also arranged for other employees to handle customer inquiries about birth control so that the pharmacist would not have to handle them. However, despite this accommodation, the pharmacist refused to perform general customer service functions including signaling other pharmacy staff to assist the customer. For example, when the pharmacist answered telephone calls from customers or physicians about birth control, he put them on hold and refused to alert other pharmacy staff that someone was holding. He also walked away from customers at the counter and refused to tell anyone that a customer needed assistance. The Court held that the store’s firing of the pharmacist was justified because his refusal to perform general customer service duties was unreasonable and placed an undue hardship on the employer.
4. Obligation to accommodate is ongoing. An employer’s obligation to accommodate an employee’s religious beliefs is ongoing. An employee’s religious beliefs and practices may grow or lessen during the course of his or her employment. This might result in requests for different or additional accommodations or in the discontinuance of an accommodation.
Finally, evaluating whether an accommodation would impose an undue hardship requires a case-by-case determination. Employer’s should consider the facts of each situation including the employee’s job duties, the nature of the employer’s business, and the size and operating costs of the employer.