You're listening to HR Mixtape. Your podcast with the perfect mix of practical advice, thought-provoking interviews, and stories that just hit different so that work doesn't have to feel, well, like work. Now, your host, Joining me today is Scott Crook, the managing partner at Crook Legal Group. Scott specializes in labor and employment law, is recognized as a Mountain State super lawyer, and a member of Utah's legal elite. And he has a strong track record in civil litigation, probate, land use,
and water law. A graduate of the J. Reuben Clark Law School at Brigham Young University, Scott is known for his exceptional legal acumen and scholarly achievements. Scott, So we met each other through your son, and
we were having this conversation about the work that you do. And one of the things that came up was where you live in Utah, that there is a high Mormon population, which we all know, and it ends up where you end up having to do a lot of education, dealing with, supporting, advising around religious accommodations in the
workplace. So I thought we could start there. Maybe just give us a broad stroke on what are religious accommodations in Well, as you know, Title VII of the Civil Rights Act, of course, protects employees against general discrimination entirely. And as a component of that, of course, religion is identified as one of those things that deserves protection. Now, I do practice in Utah. I also am licensed in
Idaho. But states often have similar provisions, state laws often have similar provisions that actually may provide additional protections to Title VII. And it's actually the case that Utah provides a little bit broader protection than the federal statute does, but a religious accommodation derives from that religious protection, and similar to the accommodation
that you would provide to somebody who has a disability. Because religion, of course, requires practice, and sometimes what people practice can conflict with what an employer does, or maybe there's a policy provision that an employer has that ordinarily would not be a problem except for the religious practice of a particular employee.
So the law has required for some time that an accommodation be granted to What are some of the misconceptions that you've seen employers take when they're trying to understand what should qualify The fact is that many employers don't think they have to really accommodate religion at all.
And particularly now, I mean, as of course our society has developed and as the law has developed, there's an increased tension now, of course, between a lot of the newest legislation and court opinions about you know, sexual orientation, gender identity. And because of those, the development in the law, a lot of times there are some serious religious objections to what people are asked to do. at work because employers have a heightened sense of duty now to protect
a person because of their sexual orientation or gender identity. And sometimes the religious conflict there sometimes gets lost in that discussion. or it gets minimized because there's a belief that because now we have these other protections that the religious objection is really something that should be, for lack of a better word, subservient to the other objection. And that's not the case. You really do have to deal with that tension that is there, and it's not always easy
to do. I mean, it's hard to do on a personal level, sometimes for some people. It's also very difficult in the Well, you bring up a good point because the law protects both groups. So it's not an either or, it's how are we having the conversation? How are we And that's true. And the hard part is that depending on your particular, um, it can be, you know, religion or your particular, um, political
persuasion. Sometimes, you know, you, you are a, um, for lack of a better word, slave to your own thought process. And you have to broaden it and allow for the fact that when you work with people, you're gonna have differences of opinion. And you've got to So where does that difference of opinion change to be, I'm requesting a religious accommodation, right? Because a formal request for accommodation is different than just I have my opinion
Right, exactly. And this will come up. It does arise now more because of these increased changes or the increasing, I would say, evolution of the law. But it's been around for a while because there are still people who have differences in the biggest issues that have existed before have been around scheduling. You know, because there are people, for instance, you know, some religions worship on a different day than other religions. And so traditionally, a lot of employers
may have been off on Sundays or allowed people to. You know, they'd work around Sunday schedules. But often things became a problem because of that scheduling, where people wanted to have their holy day, or because of a religious holiday, they wanted to have some accommodation. And that's where it arose before. So this is not a first-time issue. We've had some time to work with it. And, um, really it comes to a head a bit, obviously when somebody tries, when an employer asks an employee to
do something and then that employee. raises the objection and says, look, you're asking me to violate a tenet of my religion. I would like to be accommodated. They don't have to use the word accommodation, obviously, and most people won't. They'll say, is there something you can do? And as soon as they do that, just like with the ADA, you don't have to use magic words.
You just have to ask for some assistance, and that's enough to create a duty on the employer's part What are some examples of accommodation requests that you've seen come through? I am sure our audience listening could could provide a slew of that, but if they haven't ever encountered this, Well, first of all, the one I just mentioned is alternative schedules. And those can be a weekly ask. Like somebody says, well,
I need to do that. Like I worship on Saturdays usually, and so they ask for an accommodation to not have to work on a Saturday. Of course, it's now more likely that you're gonna have people working on Sundays. So those also come up where somebody, you know, where people are open on Sunday, they will have a request for that. That's something that happens quite a bit. You also have requests for changes to dress
codes. Certain religions require people to wear certain headdresses and other things that often may violate a dress code, so those kinds of things come up. Sometimes it even has to do with tattooing, like you might have a a policy that says there should be no visible tattoos, but there may be some religions where people have tattoos as
a part of their religion. And then, of course, the more recent ones are where employees ask as an accommodation or ask because of their sexual orientation or gender identity that they be addressed by particular pronouns. And those things are now the things that are really causing the greatest problem where people who say, well, I have a sincere religious belief that I should address people. I shouldn't, you know, that I believe gender is immutable and that it
was given by God. And so it's a violation of my religion to call somebody by a different pronoun than is their actual gender. It's interesting to hear that. You know, you don't know because we we just got on the call, but I just today gave a presentation on, you know, supporting the LGBTQIA plus community. And so there's there's definitely a need to educate, but there's also the legality of religious accommodations. And so that navigating those is very important to support all our employees. So
not dismissing anyone. example. Could you kind of dive into a little bit on religious accommodation when it comes to, is it a reasonable accommodation? Is it an undue hardship? And I'd love if you could dig into that pronoun thing a little bit, because I'm curious, What does the law say on that? You know, my gut is, right, and I'm not a lawyer, you are, that that particular item isn't necessarily one
that we would want to accommodate. But what All right, well, that's sort of a big question, so I'll try and remember everything, but let me start with this. So as you know, and as those in the HR community know, in about six—well, it's almost been a year now—the Supreme Court issued a ruling, the United States Supreme Court issued a ruling that defined what meant undue hardship under Title VII to mean something different from what had been interpreted by
the EEOC and other courts for a long time. They've been in place based on some dicta that was included in a previous Supreme Court decision that If an employee asks for religious accommodation, an employer was required to provide that accommodation only if the effect on the employer was not de minimis, which is not a, that's not a hard standard to meet. All the employer would have to say is, oh yeah, this is going to cause us a little bit of harm, and so we don't have
to accommodate. Well, the Supreme Court, last year said, no, that's not the correct interpretation of what undue hardship means. And, you know, despite the fact that many people think that the Supreme Court is, you know, politically ideological, it's often not. And in this case, it was a unanimous decision. So what they said was that Undue hardship means there has to be some substantial effect
on the employer's business. And I didn't quote the exact standard, but it's substantial harm, which means the employer's business has to be impacted significantly before it doesn't have to accommodate. And they've said, essentially, we're going to allow this to be developed over time as to what that means and they refuse and of course the ADA has been in the law for such a long time which has a similar standard that They said, you know, they were invited by the parties to
adopt, one of the parties to adopt the ADA standard. And the court said, well, we don't really need to do that. The EEOC guidance is helpful under the ADA. And it probably is a good guide, but we're going to let this develop separately. So, so a person comes in, asks for an accommodation. An employer then has to do an analysis and that is would providing this accommodation significantly
impact the business. So, and they were very clear, the Supreme Court was also very clear that said, um, a other employees, um, opinions about and reactions to the religious sentiment expressed would not be considered a substantial harm. It has to be to the business. So, for instance, this is where you're likely to have that kind of tension, and that is when somebody says, hey, I want you to address me by he, him, or she, her, and that's not their biological
sex. Well, in some workplaces, that would be fully accepted, and you would think, hey, that's not a big deal, so we're gonna do that, but then you might have some religious employee who says, look, I just really can't because this would hurt my sincere religious belief. And then, you know, nine out of 10 employees are mad at this person, and it becomes very disruptive. The court says that's not,
you can't consider that. What you have to consider is what the actual cost is in allowing a religious person to not use him, and maybe provide an accommodation. So the most, the usual accommodation that's required is that people just say, well, either use their first name or address them by their last name. Um, and don't use any, you know, don't use miss, mrs, mr, or anything. And that will solve the problem. And that wouldn't cost any money, although it may make other people mad or
employees may be disrupted. That's not enough. It's got to be, you actually have to have some economic Have you seen cases, and this is where my brain is spinning because I have not run into this particular accommodation request in my practitioner career, but I suspect that there are HR people who run into this and they do make the case that it is an undue hardship. based on things like retention, based on engagement levels that might have
a direct impact on their productivity and their bottom line. Have you seen that at all in legislation or in cases that have kind of gone through some of these requests? Well, the answer is I have not in my own practice yet. And that's I think it's just because of the development now of the law. It just hasn't reached that maturity yet. I'm Scott, this is very fascinating and complicated. And I
want to highlight again, because I think you called it out. This is a topic where we're going to have to see how the lawsuits play out to get more and more definition and how we can, as HR people and as people who are in that middle of making sure that our business objectives are met, and we support our employees and create the safe environments and follow Title VII and EEOC and, you know, ADA, it's complicated for
sure. And that's why working with lawyers such as yourself, you know, is that added piece of review that we definitely are going to need. How have you handled or how have you coached HR people? Because I have heard this. I have not said this myself, but I've heard this from other practitioners when they've received accommodation requests, specifically religious ones, that, oh, hey, I
don't believe that this person practices this. It's just a request because they don't like A, B and C. That's really hard to hear because I think it's very unfair for somebody to make any assumption on somebody's religious beliefs, but we always know in HR, there are always friends, people who are going to push the edges of anything that we do. What advice do you have It's interesting because that's always, I mean, that's not an unusual reaction. Like, and the other thing is it's actually. It
can be much more nuanced than that. So most of the time, people don't go, oh, that person doesn't believe that. They usually say, well, that's really not a core tenet of their religion. Like, for instance, in the case of, you know, you may have a person like, you said, I live in Utah where there's a lot of members of the Church of Jesus Christ of Latter-day Saints, or Latter-day Saints. And, you know, some of them may work on
Sunday. Some of them may say, no, I really don't want to work on Sunday because members of the church believe that's a sacred day. And some people will not want to work. So the question is, do you get to make the judgment based on that person, based on your experience, whether that's really a core tenet of the religion? And that is not a thing you should do. Now, there may be more extreme examples, and that's usually where the law is
fleshed out. Someone comes in and says, well, I believe in some outrageous religious thing that you've never heard before. Outrageous in the sense that it just seems so weird to you. Your first reaction should not be, that is not a true religious thing. It should be, okay, this person sincerely believes it. Now, that's not to say that if you have actual evidence of somebody who is lying about that, that you couldn't You can deny, of course you can, but first reaction should
not be, well, is that really a religious belief? And secondly, is it really a core tenet? And that's really where most people go, is to say, well, I know other Latter-day Saints, and they work on Sunday just fine, and therefore, that's not really what you believe. And that's not how you should approach it, because it's an individualized assessment.
Just like if somebody has rheumatoid arthritis under an ADA scenario, Some people with rheumatoid arthritis can tolerate certain types of things, like maybe they don't have it advanced to a certain point, so they don't need an accommodation for, let's say, you know, they need an ergonomic chair or whatever. Would you ever say to somebody, I'm sorry, because this person has rheumatoid arthritis and doesn't need an ergonomic chair, you don't need
one, because that's really not something you need. I mean, if you kind of bring it back to that level, you can see why that's not a good practice to try and isolate what is a real core religious belief and what is not. Well, and you bring up such a good point that just like anything, when we are doing accommodations, we should not be making the assumption the person is or is not being truthful.
We need to do our due diligence. And there are definitely scenarios where we have tangible evidence that goes against what's being requested. We definitely run into accommodations in the performance space as well. When you're dealing with somebody who's going down the road performance improvement plan and then all of a sudden they raise their hand and say hey I have this medical thing going on. And so
you have to navigate that just just like this. You know as we kind of wrap up our conversation here, what are the legal consequences for employers who don't offer Well, it's just like the legal consequence of any other failure to follow Title VII or any state or local law related to discrimination. They can be significant, and that is simply you'd be entitled to the lost wages of that employee if
they, for instance, were terminated without providing the accommodation. Plus any other actual damages, which can be shown, and those generally are like, you know, if someone had some, had to get some psychological counseling or something, you're going to be paying for that. And then the, the other thing is that, you'll be subject to what are called under the employment law compensatory
damages, which are more like pain and suffering. Now, from a federal perspective, those are capped depending on the size of the employer. But state laws often don't have those caps. And so you can get a lot more money or be subject to a lot more liability. And then the other thing is if it's egregious enough, you'd be subject to punitive damages, which is bad. And they have caps as well, but that also increases the amount. I mean, there's just significant liability. Even
if we just look at the money, right? I mean, if you only look at the money, it's bad. But even beyond that, if you get, I mean, the reputational injury for not being accommodating to somebody who is reasonable is, I mean, can put a person out of business, an employer can lose business. And that can
happen very quickly. So it always pays. Um, to treat every request very carefully and to not, to not minimize, um, the request and to do it timely and to work with people generally, as everyone knows who works in the HR field, there are unreasonable people, right. And, and some people who will never be happy no matter what you do. But I would say the vast majority of people who come to request accommodations. Just are doing it and often, often they do it reluctantly, but
they're doing it because they really want to keep working. They like what they're doing or else they wouldn't come and ask you to accommodate them. They'd just go and find another job. So that's a good way to look at it when people ask for it is, look, this person wants to work for us enough that they've asked for us to accommodate them. So let's try and work out a solution that can work for everyone.
You know, as you work through policies and process in your organization, make sure that you are sharing that it's a safe place to ask for the accommodation in the first place, that you value and you're listening to what your employees have to say, because we don't want to have any employee feel like they can't come and ask for an accommodation if they need one. Scott, I really appreciate everything you shared with us. And I'm looking forward to seeing what happens in legislation over the
next few years on this topic. So thanks for jumping on the podcast with me today. No problem. And I'm always glad to see movements in the law because it keeps me employed, right? But I actually like to see things to be able to help employers with the issues and to I hope you enjoyed today's episode. You can find show notes and links at TheHRMixtape.com. Come back