The EEOC Revises Guidance on Religious Discrimination in the Workplace
On January 15, 2021, the Equal Employment Opportunity Commission (“EEOC”) revised its Compliance Manual on Religious Discrimination (“Guidance”). Although EEOC Guidance does not have the binding force of law or regulation, it offers employers important insight on how to treat existing laws and novel legal issues. The EEOC explained that religious discrimination charges have been increasing over the years and that the Guidance was designed to reflect developments in the case law since the Guidance was last updated in 2008.
Under Title VII of the Civil Rights Act, employers are prohibited from discriminating against an employee on the basis of a sincerely held religious belief, and must reasonably accommodate those beliefs provided that doing so does not impose an undue hardship on the employer. The Guidance thus focuses on four key areas: (1) coverage; (2) employment decisions based on religion; (3) harassment; and (4) reasonable accommodations.
Coverage: The Guidance makes clear that the EEOC will define “religion” broadly to include “all aspects of religious observance and practice as well as belief,” not just practices that are mandated or prohibited by a tenet of the individual’s faith. Religious beliefs are still entitled to Title VII protection even if they seem illogical or unreasonable to others or not part of a formal church or sect. Drawing on Supreme Court precedent, the EEOC has emphasized that it is not the role of the courts to gauge the reasonableness of the individual’s religious beliefs. However, if an employee requests a religious accommodation and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would still be justified in seeking additional supporting information.
In the Guidance, the EEOC also took an expansive view of one important exception to Title VII coverage for religious organizations. Under Title VII, a qualifying religious organization may defend against a claim of discrimination or retaliation by showing that it made the challenged employment decision on the basis of religion. An entity can only avail itself to the “religious organization” exemption if its “purpose and character are primarily religious.” The EEOC will consider the facts on a case-by-case basis, and no single factor is dispositive in determining if an entity is a religious organization under the exemption. So, for instance, the exemption allows a religious organization to prefer to employ individuals who share its religion, and may also support termination of an individual whose conduct or religious beliefs are inconsistent with those of the employer.
Employment Decisions: The EEOC instructs employers that they must treat religious beliefs like age, race, or other protected categories and ensure that an employee or applicant is not treated differently on that basis. Employers cannot adopt recruiting practices that indicate a preference for individuals of a particular religion nor adopt recruitment practices that have the purpose or effect of discriminating based on religion. The EEOC offers best practices to employers, including establishing neutral written criteria for evaluating candidates or employees and then carefully recording the accurate business reasons for hiring, discipline, or wage-based decisions. However, Title VII permits employers to hire and employ employees on the basis of religion if religion is “a bona fide occupational qualification that is reasonably necessary to the normal operation of that particular business or enterprise.”
Harassment: Like other forms of unlawful harassment, religious-based harassment can take several forms. It may involve outright coercion, or an economic “quid pro quo,” in which the employee is pressured to abandon, alter, or adopt a religious practice as a condition of employment. It could also involve a hostile work environment, in which the employee is subject to unwelcome statements or conduct so severe or pervasive that the employee objectively and subjectively finds the work environment hostile or abusive towards his or her religious beliefs. The Guidance reiterates that an employer will be liable for a supervisor’s harassment if it results in a tangible adverse action or if it does not result in an adverse action but the employee took advantage of corrective opportunities and the employer failed to reasonably address any harassing behavior. An employer may be liable for a non-supervisor or co-worker’s harassing behavior (1) if it unreasonably failed to prevent the harassment, or (2) if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action
Accommodations: Employers must make reasonable accommodations for an employee’s religious beliefs, so long as the accommodation does not pose an undue hardship on the employer. The Guidance explained that an undue hardship might result when the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Factors to be assessed when determining the hardship include the identifiable cost in relation to the size and operating costs of the employer and the number of individuals who will in fact need a particular accommodation.
The Guidance identifies several common scenarios that may require the employer to provide an accommodation for an employee’s religious beliefs, including: (1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers or changes in job assignment; and (4) modifying workplace practices, policies, or procedures. Workplace practices, policies, or procedures may include dress and grooming standards or safety policies.
For instance, if an employee requests an exemption from an employer’s policy that prohibits hats, but the hat presents a legitimate safety hazard in an industrial environment, the requested exemption may not be a reasonable accommodation. The Guidance encourages employers to engage in an interactive dialogue with the employee and identify possible accommodations that would allow the employee to maintain the religious practice without imposing an undue hardship on the business or its operations.
Although the Guidance does not have the binding force of law, it provides employers with a useful reference for how the EEOC might view a particular issue involving alleged religious discrimination in the workplace. Employers should consider the “best practices” outlined in the Guidance, particularly when evaluating an employee’s request for religious accommodations.