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Discrimination During the Holidays

| December 24, 2020

With the winter holidays upon us, it’s important to review what employers can and cannot require when it comes to allowing employees time off to observe religious holidays. In many instances, employers may be swamped by leave requests for the same days. However, it’s important to also recognize that employees may have a right to time off in order to observe religious holidays that are not as widely celebrated. If you have questions concerning holiday leave for your employees, a Maryland employment attorney can help you navigate these issues. 

Understanding the Law

Under Title VII of the 1964 Civil Rights Act, you cannot treat your employees differently because of their religion. However, this does not necessarily mandate that you allow time off for religious holidays. Instead, you may need to make a reasonable accommodation to allow your employees to observe religious holidays. 

What is a Reasonable Accommodation? 

Conflicts typically arise when an employee requests time off from work that does not follow your business’s holiday schedule. What may constitute a reasonable accommodation is not always clear, but the EEOC has stated that you are not required to allow time off if the accommodation would cause an “undue hardship:” 

  • It would be unreasonably costly
  • It would compromise workplace safety
  • It would compromise workplace efficiency
  • It would infringe on the rights of other employees
  • It would require other employees to do more than their fair share of burdensome or dangerous work

Using these criteria, examples of where you may deny a leave request could include the following: 

  • A pool facility would not be able to staff the minimum number of lifeguards required by local ordinance. 
  • A restaurant would not have enough wait staff during the dinner rush to properly serve customers. 
  • A shipping facility may not have enough employees to make deliveries on time. 

While this rule provides employers with a great deal of latitude, we would encourage you to proceed cautiously. Rather than risk a discrimination claim, you want to be flexible and make accommodations where you can. A Maryland employment attorney can help you address these concerns in general as well as help you navigate a specific situation. 

What Employers Can Do to Make Reasonable Accommodations

If an employee is requesting time off for a religious holiday, here are some things you can consider doing in order to accommodate the request:

  • Swap the holiday for another day or shift that they are scheduled to be off
  • Ask for volunteers from other employees to take the requesting employee’s shift
  • Ask if you can modify the requesting employee’s schedule to leave early or come in late so that they can attend church or otherwise observe their religious practices

Review Your Leave Policy

It also helps to have a well-developed leave policy with a neutral basis for determining who will get which holidays off. Holiday vacation may be determined by seniority or on a rotating basis. That said, you should be careful that your policy does not have a disparate impact on people who are religious. For example, a policy that requires every employee to work one weekend per month could be considered discriminatory against those who attend church on Sundays if it would prevent them from doing so. 

To further reduce the likelihood of a discrimination claim, your leave policy should also include clear instructions for what employees must do in order to request time off. Requiring employees to make an advance request for leave will help you determine what options you may have if you cannot easily grant their request. A Maryland employment attorney can help you develop a leave policy that is fair to everyone. 

Denying Requests

Of course, employers routinely receive questionable requests for time off for religious purposes. If you have good reason to believe that the request is not sincere, you may not have to grant it. The EEOC has identified some factors that may justify denying the request:  

  • The employee has behaved in a manner markedly inconsistent with the religion they are claiming. 
  • The timing is suspicious. 
  • There is a secular benefit that would result from the request. 

For example, if an employee previously requested the day off to attend a concert and is denied, the employer may reasonably deny a subsequent request based on religious grounds. That said, these factors can obviously raise additional problems – employers generally should not be questioning the sincerity of an employee’s religious beliefs or practices. 

Contact Maryland Employment Attorney J.W. Stafford

The holidays present a number of challenges for Maryland employers. From developing anti-discrimination policies to helping you proceed in the face of a sensitive issue, Maryland employment attorney J.W. Stafford can provide the guidance you need. To schedule a consultation, call us at 410-514-6099 or contact us online to discuss your needs and how we can help.