The Employment and Labour Relations Court at Nairobi (ELRC) recently handed down its judgment in Scoline Anyango v. Nairobi Women Hospital, [2023] KEELRC 1607 (Cause No. 1620 of 2018). The Supreme Court of the U.S. also handed down its judgment in Groff v. DeJoy, Postmaster General, 600 U.S. ___ (2023). Both cases dealt with the right of free exercise of religion in the workplace and they may shed some light on how employers should make decisions affecting employee’s exercise of religion in the workplace.
Scoline Anyango v. Nairobi Women Hospital
The Claimant, Scoline, is a practicing Seventh Day Adventist – Saturdays are considered as worship days for this Christian faith. Consequently, Seventh Day Adventists do not work on this day. In order to observe this practice, the Claimant stated that she asked the Respondent to excuse her from work on Saturdays.
The Claimant wrote an email to the Respondent’s management on 23rd February 2018 asking to be excused from the meeting of 24th February 2018 as the event coincided with her worship day and she had scheduled church activities on the same day. She also sent a text message to a member of the Respondent’s management on the subject. She informed the management that she had briefed a colleague who would present the revised budget at the meeting. Nevertheless, for failing to attend the budget approval meeting on her day of worship, the Claimant’s employment was terminated.
Groff v. DeJoy, Postmaster General
The Petitioner, Gerald Groff, is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest. In 2012, Groff took a mail delivery job with the United States Postal Service. Groff’s position generally did not involve Sunday work, but that changed after USPS agreed to begin facilitating Sunday deliveries for Amazon.
To avoid the requirement to work Sundays on a rotating basis, Groff transferred to a rural USPS station that did not make Sunday deliveries. After Amazon deliveries began at that station as well, Groff remained unwilling to work Sundays, and USPS redistributed Groff’s Sunday deliveries to other USPS staff. Groff received “progressive discipline” for failing to work on Sundays, and he eventually resigned. Groff sued under Title VII of the Civil Rights Act of 1964, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.”
What the Courts said
In Scoline
Terminating the Claimant’s employment violated the Claimant’s right of free exercise of religion. The Respondent did not show a valid reason upon which they terminated the said employment.
The Respondent violated the Claimant’s freedom of worship by demanding that she works on some Saturdays despite acknowledging that Saturday was the Claimant’s worship day. Yet, the Respondent protected Sunday as a rest day for the benefit of other employees whose worship day was Sunday. Accordingly, the Respondent’s handling of the Claimant’s worship day was discriminatory: this was a violation of the Claimant’s freedom of religion under the Constitution.
In Groff
Title VII of the Civil Rights Act of 1964 requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.
Courts must apply the test to take into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact considering the nature, size, and operating cost of an employer.
A hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice, cannot be considered “undue.” Bias or hostility to a religious practice or accommodation cannot supply a defense.
What this Means for You
Free exercise of religion is a constitutional right under the Constitution of Kenya. As an employer, you should make reasonable accommodations for the employee’s free exercise of religion in the workplace. This may include changing workplace regulations, or even employment contracts.