EEOC Issues New Compliance Manual on Religious Discrimination
October 22, 2008
In response to a significant rise in the number of religious discrimination charges filed with the Equal Employment Opportunity Commission (EEOC), on July 22, 2008, the EEOC issued a new Compliance Manual on religious discrimination. The new Compliance Manual does not reflect a change in the EEOC’s policies on religious discrimination, but instead offers a more comprehensive explanation of those policies. The Compliance Manual provides detailed guidance on five topics relating to religious discrimination: coverage issues, the disparate treatment analysis, the harassment analysis, the reasonable accommodation analysis and related forms of discrimination. It also includes best practices for employers and employees, legal citations and more than 50 examples that emphasize the agency’s policies.
In addition to the Compliance Manual, the EEOC also issued two supporting documents: “Best Practices for Eradicating Religious Discrimination in the Workplace” and “Questions and Answers: Religious Discrimination in the Workplace.” The Best Practices document is a compilation of the best practices identified throughout the Compliance Manual. The Questions and Answers document succinctly summarizes the Compliance Manual. Many of the principles addressed in the Compliance Manual and its supporting documents are described below.
Protections Under Title VII
Title VII of the Civil Rights Act of 1964 protects employees and job applicants from discrimination based on religion. It also requires employers to reasonably accommodate employees’ sincerely held religious beliefs, observances and practices when requested, unless accommodation would impose an undue hardship on business operations. Employers also must take steps to prevent religious harassment of their employees. An employer may not retaliate against an individual for opposing religious discrimination, for filing a discrimination charge, or for testifying or participating in any way in an investigation, proceeding, or litigation
under Title VII.
The EEOC provides an expansive definition of religion. The protections under Title VII apply regardless of whether the religious views in question are traditional and mainstream, or are new, uncommon, not part of a formal church or sect, are only subscribed to by a small number of people, or even if they seem illogical or unreasonable to others. The protections also apply to individuals who profess no religious beliefs.
A belief is considered to be “religious” if it is “religious in the person’s own scheme of things.” Religious beliefs include those that are theistic, as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Beliefs, however, are not protected merely because they are strongly held. They must typically concern “ultimate ideas” about “life, purpose, and death.” Personal preferences and social, political, or economic philosophies are not protected religious beliefs. But, an employee’s belief or practice can be recognized as religious even if the individual is affiliated with a religious group that does not espouse or recognize the individual’s belief or practice.
Religious practices include matters such as attending services, praying, wearing religious clothing, displaying religious objects, following certain dietary restrictions, proselytizing, or refraining from participating in certain activities. Determining whether a practice is religious focuses on the employee’s motivation, not on the nature of the activity. Thus, the same practice may be performed by one person for religious reasons and by another for secular reasons.
Covered Employers
Employers covered by Title VII include private-sector and state and local government entities that have 15 or more employees. Certain exemptions exist for specially-defined “religious organizations” and “religious educational institutions,” as well as for employees who perform essentially religious functions – those whose primary duties consist of engaging in church governance, supervising a religious order or conducting religious ritual worship or instruction, regardless of whether the person is an ordained member of the clergy.
Unlawful Discrimination
Employers are prohibited from discriminating against employees and job applicants on the basis of religion. This prohibition includes taking any action based on the discriminatory preferences of others, including co-workers or clients.
Employers may not recruit individuals of a particular religion nor adopt recruitment practices that have the purpose or effect of discriminating based on religion. Employers also may not refuse to hire an applicant because he or she may need a reasonable accommodation. Employers may hire and employ individuals on the basis of religion only if religion is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”
The prohibition against religious discrimination covers all facets of employment. Employers may not discipline or discharge employees because of their religion, or discriminate with respect to compensation, terms, conditions or privileges of employment because of religion.
Unlawful Harassment
There are two basic types of conduct that constitute actionable harassment. First, an employer may not require or coerce an employee to abandon, alter or adopt a religious belief or practice as a condition of employment. This type of harassment arises when an employer intends to make an employee conform to or abandon a religious belief or practice.
The second type of harassment occurs when an employee is subjected to unwelcome statements or conduct that is based on religion and that is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive. A hostile work environment based on religion may occur because of verbal or physical harassment or as a result of the unwelcome imposition of religious views or practices on an employee. While the adverse treatment must be based on religion, it can occur regardless of whether the harassment is motivated by the religious belief, observance or lack thereof, of the harasser or the employee.
An employer is automatically liable for a supervisor’s harassment if it results in a tangible employment action. If there is no tangible action, the employer may be able to avoid liability or limit damages if it can establish that: (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. An employer is liable for harassment by a co-worker only if the employer knew or should have known about the harassment and failed to take immediate and appropriate corrective action. With respect to harassment by non-employees, an employer is liable only if it knew or should have known about the harassment, could control the harasser’s conduct or otherwise protect the employee, and failed to take prompt and appropriate corrective action.
Reasonable Accommodation
Employers must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on the employer. While the sincerity of an employee’s stated religious belief generally cannot be disputed, an employer may seek supporting information if it has an objective basis for questioning those beliefs.
A reasonable accommodation is any adjustment to the work environment that will allow the employee to practice his or her religion. Although an employer is not required to confer with an employee after receiving a religious accommodation request, as a practical matter an employer should have a discussion with the employee in order to properly evaluate the accommodation request. Similarly, supervisors should be trained on how to recognize accommodation requests and about the types of accommodations that may be reasonable.
The accommodation that is provided by an employer must be reasonable. An accommodation is not reasonable if it only lessens, rather than eliminates, the conflict between religion and work. However, where there is more than one reasonable accommodation, an employer is not required to give the employee his or her requested accommodation. Examples of reasonable accommodations that are discussed in the Compliance Manual and the Questions and Answers include: scheduling changes, voluntary substitutions or shift swaps, job reassignments and lateral transfers, modification of workplace practices, policies and procedures, such as grooming requirements or the use of employer facilities for prayer during break time, excusing union dues or agency fees and excusing an employee from employer-sponsored programs for religious reasons. In particular, the Compliance Manual discusses how to handle difficult situations such as accommodation requests that implicate security concerns and requests to express religious views by displaying religious icons or proselytizing in the workplace despite complaints by other employees or customers.
Undue Hardship
The undue hardship defense under Title VII is defined very differently from the undue hardship defense for disability accommodations under the Americans with Disabilities Act (ADA). Under Title VII, “undue hardship” is defined as “more than de minimis” cost or burden – a substantially lower standard than the “undue hardship” defense under the ADA.
An employer can show undue hardship, and therefore avoid the obligation to accommodate an employee, if accommodating the employee’s religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or if the proposed accommodation conflicts with another law or regulation. However, if an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.
Conclusion
The EEOC’s decision to issue the Compliance Manual, Best Practices, and Questions and Answers suggests the agency intends to focus on religious discrimination claims. Although the Compliance Manual is intended to be a resource for employers, employees and practitioners by offering the EEOC’s view on religious discrimination and accommodation, it does not, and cannot, address the myriad complicated and fact-specific situations that employers face when dealing with employees of various religions. Moreover, many courts have offered additional guidance concerning religious issues in the workplace, particularly requests for accommodations. We therefore recommend you seek advice from legal counsel when analyzing issues concerning the effect of your employees’ religious beliefs and practices on the workplace.
For more information, contact:
Naomi Katz
312.578.6581
naomi.katz@hklaw.com
Laura Garofalo
312.715.5722
laura.garofalo@hklaw.com
toll free: 1.888.688.8500
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