In Florida, how should a manager or business owner respond if an employee requests time off on October 31 to observe the Wiccan holiday of Halloween?
This can be a dangerous area for employers. While it may be a knee-jerk reaction to refuse to allow the employee to take the day off work, it would be wiser for an employer to explore whether it should grant the employee’s request. This essentially gets into whether the employer has a duty to accommodate the employee’s request for an accommodation to her religious belief.
Can I fire a witch who refuses to work on Halloween?
An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion. This means that it is not wise to just Google what are the religious observances of Wiccans to determine whether your employee’s request is a sincerely held religious belief.
What does the EEOC recommend Florida employers do?
Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the EEOC recommends that Florida employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief. The EEOC Compliance Manual states, “[i]f, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.”
This article reminds employers that the EEOC is looking at religious accommodations in addition to accommodations for a disabled worker. If you need any assistance in relation to analyzing handling such accommodation requests, please email or call the Law Office of David Miklas, P.A. at 1-772-465-5111 before you take that action to make sure that it is legal.
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Factors that an EEOC investigator in Florida will look at to determine whether an employee sincerely holds the religious belief at issue include:
- whether the employee has behaved in a manner markedly inconsistent with the professed belief (such as never mentioning her Wiccan religious beliefs to anyone, and previously working on Halloween);
- whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons (the employee discussing wanting to attend a Halloween dance or concert);
- whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
- whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
Florida employers must remain mindful that none of the above factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. Examples might be that the employee may have experienced certain events in her life, including the birth of a child or the death of a parent that strengthened her religious beliefs.
Well, that is possible, but the way that the EEOC and courts will analyze this will be to examine this on a case-by-case basis, focusing on whether the employee’s belief is sincere.
The EEOC Compliance manual notes that “the ‘sincerity’ of an employee’s stated religious belief is usually not in dispute. Nevertheless, there are some circumstances in which an employer may assert as a defense that it was not required to provide accommodation because the employee’s asserted religious belief was not sincerely held.”
This is a dangerous area for Florida employers and they should seek competent legal counsel if they are thinking about challenging the sincerity of the employee’s religious belief.
The EEOC Compliance Manual addresses Religious Discrimination, noting that Title VII provides that “it shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual, or his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.”
The EEOC Manual notes that, for covered employers, religion includes “all aspects of religious observance and practice, as well as belief” and that Title VII has been interpreted to protect against requirements of religious conformity and as such protects those who refuse to hold, as well as those who hold, specific religious beliefs.
What if the employer thinks that the employee is faking this weird religious belief just to get the day off from work?