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Attorney Blog, Human Resources

It’s Halloween, can I have off work? It’s part of my religion.

Attorney Harrison Oldham

Yes folks, it’s that time of year again. Thursday, October 31 is right around the corner. The day that is commonly known as is once again upon us. While chatting with my wife this evening, she had a great question; what happens if an employee asks off of work to observe the day of as part of their religion?

As you may, or may not know, Halloween originated with the ancient Celtic festival of Samhain. The Celts, who lived about 2,000 years ago, mostly in the area that is now Ireland, the United Kingdom and northern France, celebrated their new year on November 1. This day marked the end of summer and the harvest and the beginning of the dark, cold winter.  Celts believed that on the night before the new year, the boundary between the worlds of the living and the dead became blurred. On the night of October 31, they celebrated Samhain, when it was believed that the ghosts of the dead returned to earth.

By the 9th century, the influence of Christianity had spread into Celtic lands, where it gradually blended with and supplanted older Celtic rites. In 1000 A.D., the Church made November 1 All Souls’ Day, a day to honor the dead. All Souls’ Day was celebrated similarly to Samhain, with big bonfires, parades and dressing up in costumes as saints, angels and devils. The All Saints’ Day celebration was also called All-hallows or All-hallowmas and the night before it, the traditional night of Samhain in the Celtic religion, began to be called All-Hallows Eve and, eventually, Halloween.

Although in 2019 Halloween has drifted significantly from its religious origins, there are certainly still portions of the US employment population that celebrate it as a holiday. For instance, for Wicca, Neopaganism, and other nature-based traditions, Halloween is recognized as a religious festival. According to Wikipedia, a 2014 Pew Research Center’s Religious Landscapes Survey included a subset of the New Age Spiritual Movement called “Pagan or Wiccan,” reflecting that 3/4 of individuals identifying as New Age also identified as Pagan or Wiccan and placing Wiccans and Pagans at 0.3% of the total U.S. population or approximately 956,000 people of just over 1,275,000 individuals. Even, maybe somewhat surprisingly, the US military recognizes the Pagan and Wiccan religion.  Again, according to Wikipedia, a 2007 Pentagon count showed over 1,500 self-identified Wiccans in the Air Force and 350 in the Marines. Additionally, Pagan advocates in 2012 estimated the military’s total pagan population at 10,000-20,000.

So, how should an employer react if an employee requests time off to observe the holiday of Halloween?

Although this may seem ironic or comical, let’s think about it from a legal point of view. If an employee requests a day off to observe a part of their religion, it could also be termed an “accommodation” and failure to provide that accommodation, could be considered religious discrimination.

The EEOC Compliance Manual addresses Religious Discrimination, noting that Title VII provides that “it shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual, or his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.”

The EEOC Manual notes that, for covered employers, religion includes “all aspects of religious observance and practice, as well as belief” and that Title VII has been interpreted to protect against requirements of religious conformity and as such protects those who refuse to hold, as well as those who hold, specific religious beliefs. Finally, because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the EEOC recommends that employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief.

So, what should an employer do if they receive a request to be off of work to observe a religious celebration on October 31? First of all, don’t joke about it and take it seriously. Secondly, consider complying with the request. Thirdly, and finally, speak with knowledgeable local employment counsel! It’s better to receive a treat than a trick on this spooky Halloween!

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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