By Christopher T. Vrountas, Esq. and Allison C. Ayer, Esquire, Vrountas, Ayer & Chandler, P.C.
Just before Thanksgiving, the Equal Employment Opportunity Commission (“EEOC”) published proposed new guidance regarding religious discrimination in the workplace. The 100+ page guidance explains an employer’s obligations regarding religion discrimination mostly by giving common examples of how religion and workplace rules tend to collide and if and how the scenarios violate the law. In fact, the EEOC guidance provides over 50 different examples to help employers understand workplace scenarios which implicate Title VII’s prohibition against religious discrimination. The format of the guidance offers critical insight into how the EEOC views religious discrimination claims. As real-life examples often provide a helpful way to understand confusing legal standards, the guidance also provides practical ways to deal with these issues in day-to-day operations.
While some might assume the guidance would be pro-employer because it is timed right before the end of a Republican administration, it actually trends the opposite way, suggesting that employers have significant duties to accommodate religious beliefs and practices. This likely stems from the political influence of advocates for religious freedom who make up such a large part of President Trump’s support.
With that said, the guidance makes abundantly clear that religion is an extremely thorny issue and employers must be cautious and open-minded when religion and work intersect. For this reason, employers should review the guidance in its entirety. In the meantime, here are some of the highlights:
What is Protected Religion?
Given that Title VII protects an employee’s religion, not social, political, or economic philosophies, or mere personal preferences, the EEOC guidance begins by discussing what constitutes protected “religion”. See 42 U.S.C. § 2000e(j). Title VII’s protections apply whether or not religious views are mainstream or non-traditional, and regardless of whether they are recognized by any organized religion or based on a belief in God or gods. Protected religion also encompasses moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views, and it covers employees who are NOT religious or who do not engage in religious practices. Moreover, although the religious belief/practice for accommodation must be “sincerely held,” the fact that belief deviates from commonly followed tenets of religion does not necessarily mean the standard is not met. The employers’ opinion of the logic or reasonableness of a religious view is largely irrelevant in evaluating religious discrimination. Here are some examples from the guidance:
What Type of Conduct is Prohibited? Discrimination Affecting Terms/Conditions and Harassment
The proposed guidance also uses examples to demonstrate that Title VII prohibits religious discrimination in any of the terms and conditions of employment. Generally, this means that an employer may not refuse to recruit, hire or promote individuals and may not impose different work requirements on an employee because of that employee’s religious beliefs or practices. Employers also cannot discipline or discharge employees because of their religion. This is true even when the employment decision is based on customer preference.
Title VII’s prohibition against religious discrimination also covers harassment. As with any other claim of this type, the conduct must be “sufficiently severe or pervasive ‘to alter the conditions” of the employee’s employment and create an abusive working environment,” and it must be unwelcome. An isolated, unwelcome comment about religion will not be enough to violate Title VII. But the proposed guidance also makes clear that there can be religious harassment whether or not religion is specifically mentioned during the harassment.
These are some of the examples offered by the EEOC to drive these concepts home:
Providing Religious Accommodations
The EEOC guidance spends a great deal of time explaining employers’ obligation to give religious accommodations unless it would cause “undue hardship.” See 42 U.S.C. § 2000e-2(a)(1), (2). Typically, this plays out when an employer advises an applicant or employee of its policies and practices, and in response the person indicates that an accommodation is needed for religious reasons. Some common religious accommodations include: scheduling changes, voluntary substitutes, shift swaps, change of job tasks, or transfers, and modifications to work places policies and procedures, including in particular grooming and dress code policies, use of employer facilities for prayer time, employer identification procedures and/or other forms of religious expression in the workplace.
There are no “magic words” an employee needs to use to ask for a religious accommodation. Moreover, there ae scenarios where an employer is on notice of the need for a religious accommodation even if the applicant or employee does not specifically state that an accommodation is needed. In such circumstances, it would violate Title VII for an employer to fail to provide a reasonable accommodation unless it proves that doing so would pose an undue hardship. Once the employer is aware of the employee’s religious conflict, the employer should promptly obtain the information it needs to determine whether a reasonable accommodation is available without posing an undue hardship on the employer’s business. This typically involves the employer and applicant/employee cooperatively sharing information necessary to process the accommodation request, much like the “interactive process” required when processing requests for accommodations for disabilities.
Establishing “undue hardship” in the context of religious accommodations under Title VII is easier than the standard under the ADA for assessing accommodations requested for disabilities, as the Title VII standard involves merely the imposition of something “more than a de minimis cost” on the employer’s business. The employer still has the burden of persuasion to prove the standard is met based on the “the particular factual context of each case.” Relevant factors may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation. Notably, even if an employee’s proposed accommodation would pose an undue hardship, the employer is obligated to explore alternative accommodations.
Here are some of the examples from the guidance:
Employer Best Practices
While the guidance provides many other examples to help employers understand their duties not to discriminate on the basis of religion, there are some general best practices to help employers avoid running afoul of the law and facing religious discrimination claims:
The deadline for public comment on the guidance is December 17, 2020. If finalized, the guidance would supersede the EEOC’s 2008 Compliance Manual on Religious Discrimination. With that said, there exists a very real possibility that the incoming Biden administration would prepare its own proposed guidance to supersede these materials. Employers should nevertheless make efforts to comply with the guidance as it offers a strong indicator of whether the EEOC would find liability for religious discrimation. So as always when it comes to the law, ask your lawyer when you have any specific issue to address, and stay tuned!