A reader writes:
I’m a manager who has an employee who recently (late last year) accepted a promotion that involves travel. It would be a maximum of one overnight monthly, but more typically one overnight per quarter. She accepted the position knowing that this level of travel would be required.
However, she told me last week that she will no longer travel because her husband told her no and her religion tells her to obey her husband. I said the role requires travel and she accepted the role just a few months ago knowing that, so I’m not sure if I accommodate her dislike of travel and keep her in the same role. She says it has to be accommodated because it’s her sincerely-held religion.
I also know her husband recently took away her car because “queens don’t drive.” He drives her to and from work every day. When he arrives to pick her up, which is early every day, she gets really antsy until she’s released to leave because she can see his car from her desk window. She can no longer attend external meetings alone because she doesn’t have transportation, which has created problems already (she was going weekly to external meetings maybe 10 miles away), but technically her job description doesn’t say she needs her own car so my boss thinks we can’t enforce that.
Currently, we’re working around her “dislike” of travel and taking other people from her team. But it’s not really fair that she got a raise and promotion, and these people didn’t, but they have to do the travel requirements of her job. Several of them have said if they don’t get the salary boost we normally give to routine travelers, they don’t want to travel.
I think I should tell her travel is a nonnegotiable and offer to return her to her previous position and salary if she cannot or will not accept the responsibilities of the new position. My boss thinks that once she’s invoked “religious preference,” our hands are tied, but agrees that it’s becoming increasingly difficult to try to accommodate inability to travel, whether locally or overnight. What are our options here?
I think you need an employment lawyer to guide you through this, so I talked to two on your behalf.
First, a warning: I’m going highly legal with this answer, because the law is ultimately the thing that’s going to determine how you should handle this.
Also, some brief background on U.S. law on religious accommodations at work: Under Title VII of the Civil Rights Act of 1964, which applies to employers with 15 employees or more, if an employee asks her employer to accommodate a sincerely held religious belief, the employer must attempt to accommodate that request, if it can do so without “undue hardship.”
But your situation is sticky for a number of reasons, so let’s turn to the lawyers.
The first employment lawyer, who’s a regular commenter here, said this:
This is very detail-based and in real life, it would require hours of discussion and research to know. All we can do is to guess. To get an idea of what we’re dealing with, look here.
My feeling is that this is not actually a religious accommodation, but you need to be careful. You should consider talking to a local attorney, because you’ll be pushing back on an accommodation claim and that always carries a degree of risk.
That said, I would not tolerate this. There are no specifics here, but “listening to your husband” is unlikely to be viable: obviously you don’t have to give a third party that much control over one of your employees. (Lucky for you, by the way. “My religion prevents travel” would be harder to deal with than “my religion says husband is boss, and he says no travel.” Usually the test involves a “sincerely held religious belief,” and typically those don’t change at the whim of a spouse.)
My approach would be that when you hired her, there was an expectation that she would have to get from point A to point B. She needs to be able to do that. If it wasn’t in the written description but has effectively been required forever, change the description. You gave her a promotion that requires travel, so take the promotion away. This is what I would say verbally.
In writing, I would be a lot more cautious with my wording. I would lay out the test for religious accommodations, how to engage in the interactive process. How to work with the employee to find another suitable position, etc. Then I would work with her, and the expected result would be that she ends up giving up the manager position. Remember, you don’t have to accommodate everything.
Regarding the “When he arrives to pick her up, which is early every day, she gets really antsy until she’s released to leave because she can see his car from her desk window,” I would not tolerate that. “When your husband arrives early you act unprofessional and antsy. This is not acceptable. It is no different from any employee who checks out before the work day is over and it needs to stop.”
Also, on a verbal basis you might want to consider a domestic violence referral or applicable state leave laws because this level of control is, to put it mildly, unusual.
I also talked with Bob Cooper of law firm Buchalter. His take:
There are really two questions at issue here: (1) Is the employee’s request based upon a sincerely held “religious” belief if it based solely upon her husband’s religious or moral beliefs? And (2) If so, is the employer left without a remedy other than to suck it up and pay the employee for travel she now refuses to perform?
The first question is a more difficult one, since it is not clear that the husband’s preference that his wife refrain from all travel or from driving a car to perform her duties stem from actual, sincerely held religious beliefs … Although it may be tempting to disregard the husband’s beliefs and the employee’s belief that she must obey him as nothing more than sexism, the law is now so broad and murky that challenging the authenticity of these things as “sincerely held religious beliefs” is fraught with peril.
But the answer to the second question provides the remedy to this situation. Accommodating the employee’s self-imposed travel ban is one thing, but paying her for work that she refuses to perform is quite another. Whether it means returning her to her former position, or paying her less since she is no longer performing the essential duties of the position she accepted, religious conviction does not entitle employees to a windfall for work they refuse to perform. It might be better to pay the salary difference to those employees willing to travel.
I asked Bob whether the fact that the travel is only one overnight a few times a year might indicate that it’s not what the law would consider an essential function of the position, and thus if legally it wouldn’t be considered an undue hardship for the employer to accommodate the request. Also, more broadly, isn’t this giving her husband unacceptably broad control over how the employer is able to manage this employee and assign work to her? His response:
If the travel is only one overnight a few times a year, you are correct that there is a good argument that it is not an “essential” function of the position, or at least one that can’t be easily accommodated. That is why the preference would be to keep her in the promoted position, accommodate her professed religious belief not to travel, but also determine whether the position being performed without traveling merits less pay, since other employees are forced to pick up the slack.
Secondly, you are also correct that there is a concern in giving the employee’s husband too much say over how the employer chooses to conduct its own business, simply because his wife is an employee. You could stand firm on this and fight this battle, and potentially win it. But given the morass that is our federal law on this subject, I would advise to reach for the practical solution and determine whether the position merits less pay if it does not include travel. This way, the employer is still dictating its own business affairs, but remains in a legally unassailable position.
So, there you have it, letter-writer. But this is just to get you started. These lawyers are not your lawyers, and you’re going to need one of your own to guide you through this.
my employee is refusing to travel because her husband said she can’t was originally published by Alison Green on Ask a Manager.