Employers and the Faithful Find It Hard to Work It Out

As Prabhjot S. Kohli sees the matter, he has clearly been a victim of religious discrimination.

Two years after immigrating to Baltimore from India, Kohli applied for a job as a manager with Domino’s Pizza. As a former sales manager for a large Indian pharmaceutical company, he had sterling qualifications. Still his interviewer told him, “I’ve got a problem here.

“Domino’s wants cleanshaven people,” the interviewer said, “and you’ve got a beard.”

As a Sikh, whose religion requires that its adherents not cut their hair, Kohli felt trapped. He offered to wear a net over his beard, but Domino’s declined to alter its rule.

“After two years of being in this country, I found the best job, and it was slipping away,” he recalled. He went to court, charging a violation of his rights.

Domino’s sees the matter very differently. “Consumers tell us that they would prefer not to have their food cooked or served to them by men with beards and that they would not frequent a place if that were the case,” company Vice President Tim McIntyre said.

“That’s what consumers want and expect from us, and we’re not prepared to give that up for one individual,” he added, noting that other fast-food companies enforce similar no-beard strictures.

“This is not a civil rights issue” as race would be, he said. “The color of a person’s skin is not a choice, it’s something we’re born with. . . . Religion is a choice.”

But is it?

“That’s not a view that any adherent of a religious faith could share,” said Abba Cohen, Washington representative of the Orthodox Jewish group Agudath Israel--one of several members of a broad-based coalition of religious organizations seeking to change the nation’s laws about faith and the workplace.

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“When it comes to people’s religions, we don’t view that as a ‘choice.’ Religion is part of what people are, who they are,” Cohen said.

Disputes over religion and the job remain far less common than claims of racial or sexual discrimination, but while no definitive statistics exist, they appear to be on the increase, according to government officials, representatives of religious groups and lawyers who defend businesses.

The nation is “increasingly diverse; we’re also a society that is increasingly both legal-conscious and rights-conscious,” said Roberto L. Corrada, a professor at the University of Denver College of Law who has studied the issue extensively.

Add in a passel of new groups devoted to pressing the rights of the religious, and an increase in litigation comes as no surprise.

Already in America, religious differences add both fire and weight to disputes on everything from abortion policy to holiday-season displays of Christmas trees, creches and menorahs on public land.

Yet it is in the workplace, where most adult Americans spend the majority of their waking hours, that issues of religious coexistence most directly affect people’s lives. Disputes over religion on the job are an indicator of how Americans are coping with a central aspect of a rapidly changing society.

Society is coping quite well, argue representatives of the nation’s leading business organizations. Despite examples such as Kohli’s, they say, religious disputes seldom lead to litigation and are generally handled informally. The status quo works.

Representatives of religious organizations that seldom agree on much else--Orthodox and liberal Jews, conservative Christians and Seventh-day Adventists, Muslims and Sikhs--say just the opposite.

Religious disputes on the job seldom get to court because “people who need accommodations . . . have felt, correctly, that the law isn’t really on their side,” said Richard Foltin, legislative director and counsel for the American Jewish Committee.

Federal law requires companies to make “reasonable accommodations” for workers’ religious needs. But the Supreme Court has interpreted that standard to require companies to make accommodations only if doing so will not cost them any significant amount of money. Anything more than a minimal expense would be an “undue burden” on employers, the court has said.

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A few states, including California, provide a somewhat higher degree of protection to religious workers than the federal government does. In most disputes, however, if talks fail, the employer wins.

That may be about to change. Congress is considering legislation sponsored by Indiana Sen. Dan Coats, a conservative Republican, and Massachusetts Sen. John F. Kerry, a liberal Democrat, to require companies to do more to accommodate religious needs of workers. At the White House, President Clinton’s aides are also wrestling with the issue, seeking to find a legislative proposal he can offer.

Because the effort involves religion, it has drawn support from conservatives who normally oppose government regulation of business. Moreover, in a time when politicians want to emphasize their appreciation of “values,” the idea has considerable appeal.

“Congress wants to do something for God,” said Steven McFarland of the Christian Legal Society.

But as they delve into the issue, lawmakers are finding that “there are some complex issues out there,” said one administration official who is studying the matter.

Kohli’s case raises one of those complexities:

Is religion truly a “choice”--a category to which the law has traditionally given little protection--or is it something more intrinsic to a person’s identity, deserving of greater accommodation?

The fact that white customers might prefer not to do business with blacks was once used as a defense of segregation in employment, but society for more than a generation has held that justification to be out of bounds. Should a customer’s desire not to have pizza served by a bearded man be treated any differently if the beard is demanded by a person’s faith?

If so, if customer preference is not allowed to override religious needs, how far should that principle extend?

Accommodating other things is comparatively simple, McIntyre said. In the case of a disability, for example, “it’s clear, we can request a doctor’s letter,” he said. “But anyone can walk into one of our restaurants and say they have a sincere religious belief that they must wear torn jeans and a Grateful Dead T-shirt.”

There are other issues as well. A Senate committee looking into religion and the workplace recently heard testimony from a Massachusetts woman who was fired from her job at a dog-racing track after refusing to work on Christmas Day.

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Such disputes over days off are the most common type of religious dispute to arise. Often they can be accommodated with job swaps and flexible schedules, employment law experts say.

But “as every company is getting leaner and meaner, I don’t know that there are a lot of extra bodies around” to provide that sort of flexibility, said Lawrence Z. Lorber, a prominent Washington attorney who advises many businesses on labor law issues.

Sometimes, Foltin said, supervisors refuse to accommodate, not for economic reasons but simply to avoid complicating their lives.

“If you’re running a business, you want to have as few special situations as necessary,” he said.

But seemingly uniform rules seldom have a uniform impact, he argued. “Who is it who has to make the accommodations? Minorities, because in nearly all cases the structures that exist are going to reflect the needs of the majority.”

Lawmakers are clearly sympathetic to the dilemmas of religious workers caught between the demands of their jobs and of their faiths. But translating that sympathy into law could be a problem.

For example, Lorber said, suppose a company has two workers who ask for a day off, one for religious reasons, the other for a pressing personal concern?

If a private company voluntarily decides to favor the religious worker, it now has the right to do so. But if the law requires the company to grant a preference to a religious claim, would that violate the Constitution’s ban on establishment of religion?

Corrada, who favors new legislation to increase the rights of religious workers, nonetheless acknowledged that the proposal may be constitutionally suspect.

“I don’t think you can require accommodations that coerce other employees; that would probably be unconstitutional,” he said. Short of that line, Corrada said, there is more the government can do--New York, for example, requires companies to provide religious days off unless a particular worker’s presence is “essential”--but exactly where the line can be drawn remains uncertain.

An even tougher issue is raised by a recent case in Sacramento, where a fundamentalist Christian is suing a city hospital, claiming that he was fired for discussing religion with co-workers during his lunch break.

The worker, Terrence Silo, had been put on probation early in his job as a file clerk after he repeatedly tried to evangelize fellow workers. He “agreed that he had overdone it” and stopped, said his attorney, Steven Burlingham.

Then “one day on his lunch hour, he talked with a woman about God.” The woman did not object at the time, said Burlingham, but complained later, and Silo was fired.

The hospital maintains that he was fired for other reasons, but a jury recently found in Silo’s favor, agreeing with Burlingham’s argument that the hospital had overreacted. The case is now on appeal.

In a diverse society, should people be allowed free expression of their religious beliefs on the job, or should they leave those beliefs at home in the interest of a harmonious workplace?

Particularly for conservative Christians, many of whom accept evangelism as a central part of their faith, the right of free expression on the job has become a rallying cry.

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Often, however, that expression upsets others whose faiths are different. In Silo’s case, the woman he talked with apparently found his evangelism annoying.

In another recent case, a woman had taken a religious vow to wear a particularly graphic antiabortion button. She was disciplined after co-workers objected. A court eventually resolved the issue by ruling that she could wear the button but only if she kept it covered during work hours.

Yet another dispute involves a Washington-area firm where a worker recently set off an internal e-mail war with a seemingly innocuous message urging everyone to wear costumes for Halloween.

“Halloween is for pagans, agnostics, devil worshipers, Satanists and those who practice witchcraft,” one outraged co-worker fired back, suggesting that those who indulged in such practices would “live eternity in hell.”

Those sorts of disputes lead some personnel experts and lawyers who advise businesses to counsel a total ban on religious speech on the job.

A few years ago, the federal Equal Employment Opportunity Commission waded into the debate, trying to craft a set of guidelines that would help companies draw a clear line between free religious expression and religious harassment. After receiving a deluge of outraged mail, much of it from conservative Christians who feared the regulations would restrict speech too much, the agency gave up in dismay.

As Congress prepares to reenter the fray, the contending sides appear no closer to resolution.

“If you talk about the football game in the coffee room, can you talk about religion? My answer would be, ‘No,’ ” Lorber said. In a society as diverse as ours, “it causes disruption and tension.”

“You have a lot of senators saying: ‘You don’t check your religion at the workplace door,’ ” he said. “I’d say, ‘Yes, you should.’ ”

That approach, McFarland said, is “not desirable or productive.”

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Polls show that “80% of Americans say religion is ‘very’ or ‘substantially’ important to them,” he noted, arguing that companies should not try to “sanitize the workplace of religion.”

“I’m not talking about turning your workplace into a religious revival,” he said, “but you don’t have to ban religious speech. That’s just overkill.”