- EEOC Issues New Compliance Manual on Religious Bias Claims
- August 20, 2008
- Law Firm: Faegre & Benson LLP - Minneapolis Office
Religious discrimination charges filed with the Equal Employment Opportunity Commission have increased by 100 percent over the past 15 years. This, among other things, spurred the EEOC to issue a new compliance manual on religious discrimination.1
Guidance in the revised compliance manual does not change EEOC policy. It is intended to update and consolidate, into one comprehensive document, Title VII case law and the EEOC’s views regarding religious discrimination issues. The manual makes clear that the standards for a religious harassment claim are the same as any other type of protected class harassment under Title VII—although unique and challenging situations can arise with respect to religion in the workplace.
To comply with the law, employers need to understand their obligations to accommodate individual religious beliefs and their duty not to engage in harassment based on religion.
Among the topics covered in the compliance manual, and summarized below, are the statutory definition of religion, extent of employers’ obligation to accommodate religious beliefs and practices, disparate treatment in employment decisions, and religious harassment in the workplace.
Statutory Definition of Religion
The EEOC gives “religion” a very broad definition under Title VII. In addition to the more traditional theistic religions such as Christianity, Judaism, Islam, Hinduism and Buddhism, “religion” also includes new or uncommon religions as well as non-theistic beliefs. As long as a belief is religious in an individual’s own personal setting and occupies in the life of its possessor a place parallel to that filled by God, it is protected. Social or political philosophies, as well as mere personal preferences, however, are not protected religious beliefs.
According to the EEOC, Title VII requires employers to provide a reasonable accommodation when an employee puts the employer on notice of a religious need. Such needs most frequently arise when an individual’s religious beliefs, observances, or practices conflict with a specific task or requirement of the job or the application process. Once put on notice, the employer’s duty usually entails making a special exception from, or adjustment to, the particular requirement so the employee or applicant will be able to practice his or her religion and perform his or her job.
Employers may refuse to provide a reasonable accommodation if doing so would pose an undue hardship. While the undue hardship standard under Title VII, “more than a de minimis cost,” is lower than the standard required by the Americans with Disabilities Act, “a significant difficulty or expense,” the employer still retains the burden of showing an undue hardship.
Employers are required to accommodate only those religious beliefs that are “sincerely held.” Although generally the employee’s asserted belief will be unquestioned, circumstances may arise in which an employer will have an objective basis for disputing the employee’s sincerity. In these situations the employer would be justified in seeking additional supporting information. The definition of religion, however, is broad and protects beliefs with which the employer may be unfamiliar. Consequently, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.
To avoid reasonable accommodation claims based on religion, the EEOC has published “Employer Best Practices”2 in conjunction with its new compliance manual. These best practices include the following suggestions:
- Inform employees that the employer will make reasonable efforts to accommodate employees’ religious practices and develop an internal procedure for processing religious accommodation requests.
- Individually assess each request and avoid assumptions or stereotypes about what constitutes a religious belief or practice or what accommodation is appropriate.
- When faced with a request for a religious accommodation that cannot be promptly implemented, consider offering alternative methods of accommodation on a temporary basis, while a permanent accommodation is being explored. In this situation, an employer should also keep the employee apprised of the status of the employer’s efforts to implement a permanent accommodation.
- Do not assume that an accommodation will conflict with the terms of a seniority system or collective bargaining agreement without first checking if there are any exceptions for religious accommodation or other avenues to allow for the accommodation. Employers should also feel free to seek a voluntary modification to a collective bargaining agreement to accommodate an employee’s religious needs.
- Adopt flexible leave and schedule policies and procedures that allow employees to meet their religious and personal needs without requesting a religious accommodation. For example, some employers have policies allowing alternative work schedules and/or a certain number of “floating” holidays for each employee.
- Adopt and publicize a policy permitting voluntary substitutions or shift swaps between employees with substantially similar qualifications.
- Make efforts to accommodate an employee’s desire to wear a yarmulke, hijab or other religious garb.
Disparate Treatment in Employment Decisions
Title VII prohibits disparate treatment in employment decisions based on religion. As a result, employers that are not religious organizations may hire or promote employees 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 on disparate treatment based on religion extends beyond the initial hiring decision. In addition to prohibiting employers from disciplining or discharging employees because of their religion, Title VII also prohibits discrimination with respect to compensation, terms, conditions or privileges of employment.
To avoid disparate treatment based on religion claims, the EEOC provides the following suggestions in its “Employer Best Practices:”
- Establish written objective criteria for evaluating candidates for hire or promotion and apply those criteria consistently to all candidates.
- Ask all applicants for a particular job the same questions that directly relate to the position in question.
- Promptly and thoroughly record business reasons for disciplinary or performance-related actions and share these reasons with the affected employee.
Religious Harassment in the Workplace
Two types of conduct constitute religious harassment under Title VII. First, requiring or coercing an employee to abandon, alter or adopt a religious practice as a condition of employment may constitute religious harassment. This type of harassment focuses on the employer’s or supervisor’s intent to make the 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 are based on religion and are so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable, otherwise known as a hostile work environment.
To avoid religious harassment claims, the EEOC provides the following suggestions in its “Employer Best Practices:”
- Have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that provides multiple avenues for raising a complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective actions.
- Allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
- Take steps to end conduct that may become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of other employees’ objections.
- Although supervisors are permitted to engage in certain religious expression, they should avoid expression that might—due to their supervisory authority—reasonably be perceived by subordinates as coercive, even when not so intended.
1 The new compliance manual section on religious discrimination may be accessed on the commission's Web site at http://eeoc.gov/policy/docs/religion.html.
2 The list of EEOC recommended “Employer Best Practices” all may be accessed on the commission's Web site at http://eeoc.gov/policy/docs/best_practices_religion.html.