Can Employers Restrict Free Exercise in the Workplace?

On October 18, 2019, a Bengali-American man (whose name has not been made public) filed a discrimination complaint against the New York State Department of Motor Vehicles (DMV), his place of work, for failing to accommodate his schedule to reflect Friday congregational prayer. As an observant Muslim, the employee voiced his sincerely held belief that he must attend the Jumu’ah congregational prayer each Friday.

The employee has worked as a Motor Vehicle Representative (MVR) at the DMV since January 2019, performing various duties that include providing customer service, processing driver’s license and identification card applications, verifying legal documents, and administering written, oral, and visual tests for obtaining a driver’s license. He is required to work at least 3.75 hours each day, as well as mandatory overtime hours as needed. Upon being hired, the man was scheduled to work from 9:15 a.m. – 1 p.m., and he regularly clocked additional hours from 1 p.m. – 4:30 p.m. Each employee receives a daily 45-minute lunch break and a 15-minute office break during his/her shift. Shortly after being hired, the employee asked the DMV for a religious accommodation to extend his 45-minute lunch break on Fridays to an hour, which the DMV approved. The employee would instead report to work at 8:45 a.m. on Fridays and work until 12:30, at which point he was allowed a 45-minute lunch break and a 15-minute office break to attend congregational prayer; he was expected to return at 1:30 p.m. to work his additional hours. However, the DMV employed a caveat: this accommodation would only be granted for three months. The DMV failed to provide any rationale for this limitation.

The DMV did not report any scheduling or staffing inconveniences during these three months. As the accommodation neared its expiration, the employee requested an extension. He also modified his request; this time, the employee asked for a one-hour break to observe congregational prayer on Fridays from 1:30 p.m. – 2:30 p.m. instead of 12:30 p.m. – 1:30 p.m. Muslims use a lunar calendar to determine prayer times, and so the congregational prayer had shifted by an hour. The DMV denied his request. The DMV representative responded with: “We cannot accommodate your request to leave during the day on Fridays for your religious observance. An essential function of your position is to work certain hours. Altering your schedule poses an undue hardship on the operational needs of the office.” The employee also sent in a request for a schedule accommodation during the month of Ramadan, in which he must fast from sunrise to sunset. This request was also denied.

The employee claims that he was discriminated against on the basis of religion. In response, he filed an affidavit with the Council on American-Islamic Relations - New York, a civil rights group. “Because I am observing my faith at work, my job is at risk,” the employee admitted. “I believe I am being punished and retaliated against because I am observing my religious practice of attending congregational prayer.” Such discrimination violates the New York State Human Rights Law, which “makes it illegal for an employer to discriminate against an employee or job seeker” based on several identifiers, including religion.

Although the employee was given an accommodation for three months without any claim of “undue hardship” by the agency, the DMV argued that requests must be considered on a case-by-case basis to avoid the potential for such hardships to occur. After his requests were denied, the DMV changed the employee’s regular hours to 10:45 a.m. – 2:30 p.m. Even though he is no longer granted an accommodation, the employee continues to leave every Friday at 1:30 p.m. to attend his congregational prayer. He sends in a one-hour leave request each week, which is always denied. After leaving for prayer, the employee is not allowed to clock back in for the remainder of the day, so he cannot complete any of his usual overtime hours, which are deemed mandatory. The employee also claims that the manager has threatened him for “taking unauthorized lunch breaks” when clocking out for prayer, even though he has been submitting requests.

The First Amendment begins with, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Is this refusal to allow a religious accommodation a violation of the employee’s free exercise rights? Since the employee was previously granted a three-month accommodation, I do find this to be a violation of the Free Exercise clause, and I do not find the DMV’s short justification convincing. Since his denial, the employee has been forced to choose between his religion and making a living for himself. He has chosen to continuing practicing his religion, therefore giving up hours of work, which puts him at a financial disadvantage and worsens his relationship with the agency.

As precedent, a 1959 Pennsylvania blue law restricting commerce within the state on Sundays burdened merchants who were Orthodox Jews, for they also had to close their store on Saturdays, their sabbath. Justice Brennan’s concurring and dissenting opinion in Braunfeld v. Brown claims that the Orthodox Jew merchants suffered a state-imposed burden since they cannot both compete successfully with other merchants while also practicing their religion. The same issue can be applied here; the employee faces a state-imposed burden on his wages by not being able to work his overtime hours. Although mandatory, it is unclear as to whether these hours must be worked at a set time during the week. If there is no set time, he could choose to work all his overtime hours earlier in the week; however, this would still be burdensome to his schedule.

Similarly, in Sherbert v. Verner, Seventh-Day Adventist Adell Sherbert filed for unemployment benefits but was denied because she refused to work on Saturdays, her sabbath. Here, the Court claimed that the “appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable.” There exists no compelling state interest to override the DMV employee’s free exercise rights, leading me to believe that the denial is solely religion-based. The three-month accommodation did not create any problems, and it appears to be easy to move staff schedules around, considering this employee’s schedule has been adjusted multiple times. I find it to be a stronger burden on the DMV to not allow the employee to clock back in after attending prayer. I think it would be less burdensome for the DMV to find someone to cover his one-hour break in comparison to the three-hour shift that he is no longer working. The agency has been able to get a one-hour break covered in the past, so I cannot imagine it being different now that the break is pushed back by an hour.

While the employee did agree to the responsibilities and hours of the job, he is only asking for his 15-minute office break to be combined with his lunch break each Friday, which can easily be accommodated for. He still fulfills his 3.75 hours on Fridays, and so he should be allowed to work additional hours and to take his break without any pushback.

This is not the first time a Muslim has been restricted from attending Jumu’ah. In O’Lone v. Estate of Shabazz, the Court ruled such free exercise limitations constitutional when applied to prisoners. While it can be argued that we give up some of our rights as state employees, to what degree can employers restrict their employee’s free exercise rights? This cannot be easily answered, but I do think that employees should be able to freely exercise their religion in the workplace through expression of clothing and through accommodations to leave for prayer and observance of religious holidays. Free exercise should be restricted when it involves overt acts of discrimination toward a person or a group. Overall, the employee’s free exercise to leave for prayer is protected under the First Amendment, and I think that the DMV should extend his accommodation.