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You're listening to HR Mixtape. Your podcast with

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the perfect mix of practical advice, thought-provoking interviews, and

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stories that just hit different so that work doesn't have to feel,

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well, like work. Now, your host,

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Joining me today is Scott Crook, the managing partner at

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Crook Legal Group. Scott specializes in labor and

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employment law, is recognized as a Mountain State super lawyer,

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and a member of Utah's legal elite. And he has

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a strong track record in civil litigation, probate, land use,

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and water law. A graduate of the J. Reuben Clark Law

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School at Brigham Young University, Scott is known for

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his exceptional legal acumen and scholarly achievements. Scott,

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So we met each other through your son, and

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we were having this conversation about the work that you do. And

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one of the things that came up was where you live in Utah,

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that there is a high Mormon population, which we all know, and

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it ends up where you end up having to do a lot

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of education, dealing with, supporting,

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advising around religious accommodations in the

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workplace. So I thought we could start there. Maybe just

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give us a broad stroke on what are religious accommodations in

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Well, as you know, Title

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VII of the Civil Rights Act, of

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course, protects employees against general

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discrimination entirely. And as a component of

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that, of course, religion is identified as

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one of those things that deserves protection. Now, I

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do practice in Utah. I also am licensed in

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Idaho. But states

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often have similar provisions, state laws often

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have similar provisions that actually may provide additional protections

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to Title VII. And it's actually the case that Utah

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provides a little bit broader protection than the federal statute

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does, but a religious accommodation derives from

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that religious protection, and similar to the accommodation

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that you would provide to somebody who has a disability. Because

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religion, of course, requires practice, and

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sometimes what people practice can

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conflict with what an employer does,

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or maybe there's a policy provision that

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an employer has that ordinarily would

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not be a problem except for the religious practice of a particular employee.

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So the law has required

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for some time that an accommodation be granted to

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What are some of the misconceptions that you've seen employers take

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when they're trying to understand what should qualify

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The fact is that many employers

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don't think they have to really accommodate religion at all.

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And particularly now, I mean, as of

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course our society has developed and as the

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law has developed, there's

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an increased tension now, of

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course, between a lot of the newest legislation

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and court opinions about you

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know, sexual orientation, gender identity. And

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because of those, the

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development in the law, a lot of times there

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are some serious religious objections to what people

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are asked to do. at

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work because employers have

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a heightened sense of duty now to protect

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a person because of their sexual orientation or gender identity. And

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sometimes the religious conflict

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there sometimes gets lost in

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that discussion. or it gets minimized because

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there's a belief that because now we have these

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other protections that the religious objection is

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really something that should be, for

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lack of a better word, subservient to the other objection. And

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that's not the case. You really do have to deal with

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that tension that is there, and it's not always easy

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to do. I mean, it's hard to do on a personal level, sometimes for

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some people. It's also very difficult in the

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Well, you bring up a good point because the law protects both

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groups. So it's not an either or, it's

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how are we having the conversation? How are we

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And that's true. And the hard part is that depending on

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your particular, um, it can be,

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you know, religion or your particular, um, political

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persuasion. Sometimes, you know, you,

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you are a, um, for

5:40

lack of a better word, slave to your own thought process.

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And you have to broaden it and

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allow for the fact that when you work with people, you're

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gonna have differences of opinion. And you've got to

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So where does that difference of opinion change

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to be, I'm requesting a religious accommodation, right? Because

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a formal request for accommodation is different than just I have my opinion

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Right, exactly. And this will come up. It

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does arise now more because of these increased

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changes or the increasing, I would say,

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evolution of the law. But it's been around for a while because

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there are still people who have differences in the biggest issues

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that have existed before have been around scheduling. You

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know, because there are people, for instance, you know,

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some religions worship on a different day than

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other religions. And so traditionally, a lot of employers

6:45

may have been off on Sundays or allowed people to. You

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know, they'd work around Sunday schedules. But

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often things became a problem because of that scheduling, where

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people wanted to have their holy day, or because of

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a religious holiday, they wanted to have some accommodation.

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And that's where it arose before. So this

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is not a first-time issue. We've

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had some time to work with it. And,

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um, really it comes to a head a bit, obviously when

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somebody tries, when an employer asks an employee to

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do something and then that employee. raises

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the objection and says, look, you're asking me to violate

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a tenet of my religion. I would like to be accommodated. They

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don't have to use the word accommodation, obviously, and most people won't.

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They'll say, is there something you can do? And as soon as they do that,

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just like with the ADA, you don't have to use magic words.

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You just have to ask for some assistance,

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and that's enough to create a duty on the employer's part

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What are some examples of accommodation requests that

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you've seen come through? I am sure our audience listening could

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could provide a slew of that, but if they haven't ever encountered this,

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Well, first of all, the one I just mentioned is

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alternative schedules. And those can

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be a weekly ask. Like somebody says, well,

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I need to do that. Like I worship

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on Saturdays usually, and so they ask for an accommodation to

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not have to work on a Saturday. Of course, it's now more likely

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that you're gonna have people working on Sundays. So

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those also come up where somebody, you know, where people are

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open on Sunday, they will have a request for that. That's something that

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happens quite a bit. You also have requests

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for changes to dress

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codes. Certain

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religions require people to wear certain headdresses and other

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things that often may violate a dress code,

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so those kinds of things come up. Sometimes it even has

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to do with tattooing, like you might have a a

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policy that says there should be no visible tattoos, but there may be some

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religions where people have tattoos as

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a part of their religion. And then, of course, the

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more recent ones are where employees

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ask as an accommodation or

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ask because of their sexual orientation or gender identity

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that they be addressed by particular pronouns. And

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those things are now the things that are really causing the

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greatest problem where people who say, well, I

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have a sincere religious belief that

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I should address people. I shouldn't, you know, that I

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believe gender is immutable and that it

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was given by God. And so it's a violation of my religion

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to call somebody by a different pronoun

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than is their actual gender.

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It's interesting to hear that. You know, you don't know

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because we we just got on the call, but I just today

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gave a presentation on, you know, supporting the LGBTQIA plus

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community. And so there's there's definitely a

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need to educate, but there's also the

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legality of religious accommodations. And so that

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navigating those is very important to support all our employees. So

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not dismissing anyone. example. Could

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you kind of dive into a little bit on religious

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accommodation when it comes to, is it a reasonable

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accommodation? Is it an undue hardship? And

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I'd love if you could dig into that pronoun thing a little bit, because I'm

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curious, What does the law say on that? You know,

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my gut is, right, and I'm not a lawyer, you are, that that

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particular item isn't necessarily one

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that we would want to accommodate. But what

11:24

All right, well, that's sort of a big question, so I'll try and

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remember everything, but let me start with this.

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So as you know, and as those

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in the HR community know, in about six—well, it's

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almost been a year now—the Supreme Court

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issued a ruling, the United States Supreme Court issued a ruling that defined

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what meant undue hardship under Title VII to

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mean something different from what had been interpreted by

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the EEOC and other courts for a long time. They've

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been in place based on some dicta that

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was included in

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a previous Supreme Court decision

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that If an employee

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asks for religious accommodation, an employer was

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required to provide that accommodation only

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if the effect on the employer was not de

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minimis, which is not a, that's not a hard standard

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to meet. All the employer would have to say is, oh yeah, this is going to cause us

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a little bit of harm, and so we don't have

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to accommodate. Well, the Supreme Court, last year

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said, no, that's not the correct interpretation of

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what undue hardship means. And, you

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know, despite the fact that many people think that the Supreme Court is, you

12:54

know, politically ideological, it's often not. And

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in this case, it was a unanimous decision. So what

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they said was that Undue

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hardship means there has to be some substantial effect

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on the employer's business. And I didn't quote the exact

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standard, but it's substantial harm, which

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means the employer's business has to be impacted significantly

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before it doesn't have to accommodate. And they've

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said, essentially, we're going to allow

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this to be developed over time as to what

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that means and they refuse and of course the

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ADA has been in the law for such a long time

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which has a similar standard that

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They said, you know, they were invited by the parties to

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adopt, one of the parties to adopt the ADA standard. And

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the court said, well, we don't really need to do that. The EEOC guidance is

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helpful under the ADA. And

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it probably is a good guide, but we're going to let this develop separately.

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So, so a

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person comes in, asks for an accommodation. An

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employer then has to do an analysis and that

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is would providing this accommodation significantly

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impact the business. So, and they were

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very clear, the Supreme Court was also very clear that said, um, a

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other employees, um, opinions

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about and reactions to the

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religious sentiment expressed would

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not be considered a substantial harm. It has to

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be to the business. So, for instance, this is where you're

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likely to have that kind of tension, and that is when somebody says, hey,

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I want you to address me by he, him,

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or she, her, and that's not their biological

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sex. Well,

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in some workplaces, that would be fully accepted, and you would

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think, hey, that's not a big deal, so we're gonna do that, but

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then you might have some religious employee who

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says, look, I just really can't because this would

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hurt my sincere religious belief. And

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then, you know, nine out of 10 employees are mad at

15:34

this person, and it becomes very disruptive. The court says that's not,

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you can't consider that. What you have to consider is what the actual cost

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is in allowing

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a religious person to not use him, and maybe

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provide an accommodation. So the

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most, the usual accommodation that's required is that people just say,

15:59

well, either use their first name or address them

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by their last name. Um, and don't use

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any, you know, don't use miss, mrs,

16:10

mr, or anything. And that will solve the problem. And

16:14

that wouldn't cost any money, although it may make other people mad or

16:18

employees may be disrupted. That's not enough. It's

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got to be, you actually have to have some economic

16:26

Have you seen cases, and this is where my

16:29

brain is spinning because I have not run into this particular accommodation request

16:33

in my practitioner career, but I suspect that

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there are HR people who run into this and they do make the case that

16:40

it is an undue hardship. based on things like

16:44

retention, based on engagement levels that might have

16:47

a direct impact on their productivity and their bottom line. Have

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you seen that at all in legislation or in cases that

16:55

have kind of gone through some of these requests?

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Well, the answer is I have not

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in my own practice yet. And that's I think it's just

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because of the development now of the

17:11

law. It just hasn't reached that maturity yet. I'm

17:17

Scott, this is very fascinating and complicated. And I

17:20

want to highlight again, because I think you called it out. This is

17:24

a topic where we're going to have to see how the lawsuits

17:28

play out to get more and more definition and

17:32

how we can, as HR people and as people

17:36

who are in that middle of making sure that our

17:39

business objectives are met, and we support our employees and create the

17:42

safe environments and follow Title VII and EEOC and,

17:46

you know, ADA, it's complicated for

17:49

sure. And that's why working with lawyers such as yourself, you know,

17:53

is that added piece of review that we definitely are

17:56

going to need. How have you handled or how have you coached

18:00

HR people? Because I have heard this. I have not said this myself, but

18:03

I've heard this from other practitioners when

18:07

they've received accommodation requests, specifically religious

18:11

ones, that, oh, hey, I

18:14

don't believe that this person practices this. It's just

18:17

a request because they don't like A, B and C. That's

18:24

really hard to hear because I think it's very unfair for somebody to make any

18:27

assumption on somebody's religious beliefs, but we always know in

18:30

HR, there are always friends, people who are going to push the

18:34

edges of anything that we do. What advice do you have

18:38

It's interesting because that's always,

18:41

I mean, that's not an unusual reaction. Like, and the

18:45

other thing is it's actually. It

18:49

can be much more nuanced than that. So most of the time, people

18:53

don't go, oh, that person doesn't believe that. They

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usually say, well, that's really not a core tenet of their religion. Like,

19:03

for instance, in the case of, you

19:07

know, you may have a person like, you said,

19:11

I live in Utah where there's a lot of members of the

19:14

Church of Jesus Christ of Latter-day Saints, or Latter-day Saints. And,

19:21

you know, some of them may work on

19:24

Sunday. Some of them may say, no, I

19:28

really don't want to work on Sunday because members of

19:31

the church believe that's a

19:35

sacred day. And some people will not

19:39

want to work. So the question is, do you get to make the

19:42

judgment based on that person, based on your

19:45

experience, whether that's really a core tenet of

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the religion? And that is not a thing you should do. Now,

19:54

there may be more extreme examples, and that's usually where the law is

19:57

fleshed out. Someone comes in and says, well, I believe

20:03

in some outrageous religious

20:07

thing that you've never heard before. Outrageous in the sense that it

20:10

just seems so weird to you. Your

20:14

first reaction should not be, that is

20:17

not a true religious thing. It

20:20

should be, okay, this person sincerely believes it. Now, that's

20:23

not to say that if you have actual evidence

20:28

of somebody who is lying about that, that you couldn't You

20:33

can deny, of course you can, but first reaction should

20:36

not be, well, is that really a religious belief? And secondly, is

20:39

it really a core tenet? And that's really where most people go, is to say,

20:43

well, I know other Latter-day Saints, and they work on Sunday just fine,

20:46

and therefore, that's not really what you believe. And that's

20:51

not how you should approach it, because it's an individualized assessment.

20:55

Just like if somebody has rheumatoid arthritis under

20:59

an ADA scenario, Some people with rheumatoid arthritis

21:03

can tolerate certain types of things, like

21:07

maybe they don't have it advanced to a certain point, so

21:11

they don't need an accommodation for, let's

21:14

say, you know, they need an ergonomic chair or whatever. Would

21:21

you ever say to somebody, I'm sorry, because this person has

21:24

rheumatoid arthritis and doesn't need an ergonomic chair, you don't need

21:27

one, because that's really not something you need. I mean, if

21:31

you kind of bring it back to that level, you can see

21:34

why that's not a good practice to

21:38

try and isolate what is a real core religious belief and what is not.

21:42

Well, and you bring up such a good point that just

21:46

like anything, when we are doing accommodations, we should not

21:49

be making the assumption the person is or is not being truthful.

21:54

We need to do our due diligence. And there are definitely scenarios where

21:59

we have tangible evidence that goes against what's

22:02

being requested. We definitely run into accommodations

22:07

in the performance space as well. When you're dealing with somebody who's going

22:10

down the road performance improvement plan and then all of a sudden they

22:13

raise their hand and say hey I have this medical thing going on. And so

22:17

you have to navigate that just just like this. You know as we kind

22:20

of wrap up our conversation here, what are

22:24

the legal consequences for employers who don't offer

22:32

Well, it's just like the legal consequence of any

22:35

other failure to follow Title

22:40

VII or any state or local law related

22:43

to discrimination. They can be significant, and

22:48

that is simply you'd be

22:51

entitled to the lost wages of that employee if

22:56

they, for instance, were terminated without providing the accommodation. Plus

23:02

any other actual damages, which can

23:05

be shown, and those generally are like, you know, if

23:09

someone had some, had to get some psychological counseling

23:13

or something, you're going to be paying for that. And then the, the other thing is

23:16

that, you'll be subject to what

23:19

are called under the employment law compensatory

23:23

damages, which are more like pain and suffering. Now, from

23:27

a federal perspective, those are capped depending on the

23:30

size of the employer. But

23:35

state laws often don't have those caps. And so you can

23:38

get a lot more money or be

23:41

subject to a lot more liability. And

23:45

then the other thing is if it's egregious enough, you'd

23:48

be subject to punitive damages, which is bad. And

23:53

they have caps as well, but that also increases the

23:57

amount. I mean, there's just significant liability. Even

24:01

if we just look at the money, right? I

24:04

mean, if you only look at the money, it's bad. But

24:08

even beyond that, if you get, I mean, the reputational injury for

24:11

not being accommodating to somebody who is reasonable is,

24:16

I mean, can put a person out of business, an employer

24:19

can lose business. And that can

24:23

happen very quickly. So it always pays. Um,

24:28

to treat every request very

24:33

carefully and to not, to not minimize, um,

24:37

the request and to do it timely and to work with people

24:41

generally, as everyone knows who

24:44

works in the HR field, there are unreasonable people, right.

24:48

And, and some people who will never be happy no matter what

24:51

you do. But I would say the vast majority of

24:54

people who come to request accommodations. Just

24:58

are doing it and often, often they do it reluctantly, but

25:02

they're doing it because they really want to keep working. They

25:07

like what they're doing or else they wouldn't come

25:10

and ask you to accommodate them. They'd just

25:14

go and find another job. So that's a good way to

25:17

look at it when people ask for it is, look, this person wants

25:20

to work for us enough that they've asked for us to accommodate them.

25:25

So let's try and work out a solution that can work for everyone.

25:28

You know, as you work through policies and process

25:32

in your organization, make sure that you are sharing

25:36

that it's a safe place to ask for the accommodation in the first place, that

25:40

you value and you're listening to what your employees have to

25:43

say, because we don't want to have any employee feel like

25:46

they can't come and ask for an accommodation if they need one. Scott, I

25:50

really appreciate everything you shared with us. And I'm

25:53

looking forward to seeing what happens in legislation over the

25:56

next few years on this topic. So thanks for jumping on the podcast with me today.

26:00

No problem. And I'm always glad to see movements

26:04

in the law because it keeps me employed, right? But

26:09

I actually like to see things to be able to help employers with

26:14

the issues and to

26:23

I hope you enjoyed today's episode. You can find show notes

26:26

and links at TheHRMixtape.com. Come back