Religious Discrimination

Religious discrimination by employers is unlawful under the Massachusetts Fair Employment Practices Act (FEPA) and Title VII of the Civil Rights Act of 1964, which prohibit companies from discriminating against employees because of religion in conditions of employment including hiring, hiring, promotion, and work assignments. State and federal law also prohibit employers from segregating employees on the basis of religion such as, for example, isolating a worker who wears religious clothing from customers based on concerns, whether actual or perceived, of losing business. Employers must also reasonably accommodate an employee’s religious beliefs through, for example, schedule changes unless the company can show that doing so would impose an undue hardship.

To pass constitutional muster, statutes prohibiting religious discrimination must strike a delicate balance between the freedoms guaranteed under the Free Exercise and Establishment clauses of the First Amendment. The Supreme Judicial Court’s ruling in Pielech v. Massasoit Greyhound highlights the thin line that separates these constitutional mandates. There, employees claimed that their former employer violated the Fair Employment Practice Act by requiring them to work on Christmas Day in contravention to their religious beliefs.

As background, in earlier religious discrimination cases like Lewis, New York & Mass. Motor Services, and Kolodziej, the SJC closely examined whether a particular religion’s dogma imposed an obligation that was consistent with the employee’s accommodation request. If so, it was then the employer’s burden to prove that it denied the accommodation because it posed an undue hardship on the company’s business. Many cases, however, were dismissed on the basis that a particular religion did not formally require the accommodation at issue.

This changed in Pielech v. Massasoit Greyhound where the SJC made clear that such an inquiry, as required under the prior version of Section 4(1A) of the Fair Employment Practices Act, violates the Establishment Clause of the First Amendment:

We conclude that G.L. c. 151B, s. 4(1A), construed as we have concluded it must be construed, would require our courts in this case to determine what actions and beliefs are required of adherents to the Roman Catholic faith. These are not proper matters for the courts to decide. For this reason, in addition to its preference of religious beliefs and practices that are shared by organized churches over those not so shared, we conclude that s. 4(1A) violates the establishment clause of the First Amendment.

In response to the Pielech decision, the Massachusetts legislature revised Section 4(1A) to no longer require an employee to provide evidence that the accommodation in question aligns with a religion’s formal requirements. Rather, under the revised version, “the words ‘creed or religion’ mean any sincerely held religious beliefs, without regard to whether such beliefs are approved, espoused, prescribed or required by an established church or other religious institution or organization.” Notably, before passing the revised version, the legislature first sought guidance from the SJC as detailed in Opinion of the Justices to the House of Representatives, which advised that the statute should no longer be limited to persons whose practices and beliefs mirrored those required by the dogma of established religions.

Although the legislature’s revisions to the Fair Employment Practices Act made it more similar to Title VII, differences still exist. For example, FEPA applies to employers with six or more employee whereas Title VII has a higher threshold and only applies to companies with at least fifteen employees. In addition, FEPA sets a notice requirement and specifically acknowledges an employer’s discretion to require an employee to make up missed time:

[A]ny employee intending to be absent from work when so required by his or her creed or religion shall notify his or her employer not less than ten days in advance of each absence, and that any such absence from work shall, wherever practicable in the judgment of the employer, be made up by an equivalent amount of time at some other mutually convenient time.

Under both Title VII and FEPA, an employer is only required to reasonably accommodate an employee’s religion if the accommodation does not pose an undue hardship. The employer, however, has the burden of showing that the accommodation in question poses an undue hardship.

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