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Accommodating employees' religious beliefs

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Would you fire Neil Noesen? His employer, Medical Staffing Network, assigned him to work at a Wal-Mart pharmacy. Once there, he advised the pharmacy manager that he could not dispense birth control medication because he was Roman Catholic and it was against his religion.

Companies today are being faced with a surge of employees who are conscientious objectors to some part of the employer's business on the basis of their religion. Stories range from taxi drivers refusing to transport customers who are carrying liquor to cashiers refusing to service customers purchasing pork.

Ordinarily, an employer would rightly have little reason to tolerate such conduct. But when the refusals are based in an employee's religious beliefs, an employer cannot simply demand compliance. Title VII's duty to reasonably accommodate religious beliefs can require an employer to take steps to allow an employee to continue working in spite of his refusal to sell.

There are three general rules to remember when faced with a request for an accommodation of an employee's religious beliefs.

First, no matter how strange they may seem to you, courts have been extremely reticent to find an individual's religious beliefs are phony. Don't ignore a request because of questions about the good faith.

Second, just saying "no" is a recipe for disaster. While the law does not mandate that you honor the employee's most desirable accommodation, a good faith effort to accommodate is required. If you don't even try to find a reasonable accommodation for an employee, or only do lip service to the employee by ignoring the motivation for the request, don't expect kind treatment in the courts.

Third, undue hardships exist, so you're not powerless. A common concern among employers facing the religious accommodation issue is dealing with a tidal wave of requests for accommodation for newly religious employees. But that scenario describes pretty exactly what an undue hardship would be. If all your employees request Fridays off for religious reasons, and the business requires staffing on the weekends, it would be an undue hardship for the business to close for lack of employees.

In Noesen's case, the pharmacy manager relieved him of the duty of filling birth control prescriptions, taking orders for birth control from customers or physicians, handling customers' birth control orders and performing checks on birth control orders.

But these accommodations were not enough. When a call would come in concerning birth control, Noesen would simply walk away from the phone and not inform anyone else in the pharmacy of the call. He also walked away from customers at the counter seeking information on birth control and would not tell anyone else that the customer was waiting.

The manager offered to relieve him of counter duty, but could not relieve him from telephone duty as the high volume of calls mandated that all employees answer the telephone. Noesen refused to work under these conditions and the manager terminated his employment. Suit was filed alleging that the manager violated Title VII's religious accommodation requirement.

The court had little trouble rejecting the pharmacist's claims. Noesen's requested accommodation were called "a demand that (the employer) insulate him from any interaction, no matter how brief, with any person seeking birth control." Accommodations that require other employees to assume a disproportionate share of the workload were, the court held, unreasonable as a matter of law.

Each request for accommodation based upon religious beliefs will turn on the facts of the specific case. And sometimes even small differences in facts can lead to substantially different outcomes. It's usually a smart idea to consult with labor or employment counsel before saying "no" to any religious-based request -- even one that at first sounds extreme.

Hoffman is the managing partner of the San Diego office of Fisher & Phillips LLP (www.laborlawyers.com), a national law firm that exclusively represents management in labor and employment matters.

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