EEOC Publishes Proposed Religious Discrimination Guidance for Public Comment

December 10, 2020

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:

  • An employee practices the Kemetic religion, based on ancient Egyptian faith, and affiliates himself with a tribe numbering fewer than ten members explains that it would be a sin to cover his tattoos intentionally because doing so would signify a rejection of the Egyptian god of the sun. This can be religious practice even if no one else subscribes to it. BUT
  • An employee who refuses to cover a tattoo of her favorite band because she feels so passionately about it that it is essentially her only religion need not be accommodated because her beliefs about the band do not relate to “ultimate concerns” about life, purpose, death, humanity’s place in the universe, right and wrong, or any moral or ethical belief system. According to the EEOC, her beliefs about the band are a personal preference that is not religious in nature.

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:

  • Promotion. An employee who practices Buddhism is rejected for promotion in favor of a non-Buddhist candidate who was less qualified. The company advises the employee that he was not selected because “we decided to go in a different direction.” But, the vice president confides to coworkers that a Christian manager was selected instead because he could make better personal connections with the firm’s clients, many of whom are Christian. This suggests pretext for religious discrimination, according to the EEOC.
  • Discipline. A retail store manager does not discipline an employee who is frequently 10-15 minutes late for her shift to attend Mass at a Catholic church, but he does discipline a newly hired clerk who is Muslim, and arrives 10 minutes late due to his attendance at services at the local mosque. While the employer can require similarly situated employees to be punctual, it discriminates based on religion by applying different discipline standards to employees of different religions.
  • Other Terms and Conditions. A secretary is allowed to display a Bible on her desk at work, but another secretary is asked to put the Quran out of view because, his coworkers “will think you are making a political statement, and with everything going on in the world right now we don’t need that around here.” Such disparate treatment constitutes religious discrimination.
  • Termination. Weeks after a coffee shop hires a cashier who wears a turban as part of his Sikh religion, the work crew from the construction site near the shop no longer comes in because they believe the cashier is Muslim.  The EEOC says that it would violate the law for the coffee shop to terminate the employee based on customer preference and regardless of whether he was actually Muslim, Sikh, or any other religion.
  • Religious Harassment. If they occur with enough frequency, it could be religious harassment for an employee to persist with talking to another employee about her prospects for salvation after she tells the employee he has “crossed the line.”  Even if the employee has willingly talked with this work colleague for months about religion, the employee should stop having non-work-related conversations with her after she expresses that the conduct is unwelcome…BUT it is not harassment if an employee is offended by conversations he overhears between coworkers, one of whom is a Buddhist, discussing meditation techniques.  Such conversations do not constitute religious harassment, particularly given that they do not insult other religions and they were not directed at him.

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:

  • Religious Garb. An applicant for a rental car sales position is an observant Sikh.  She wears a chunni (religious headscarf) to her job interview. The applicant does not ask whether she would be permitted to wear the headscarf if she were hired, but the manager suspected the headscarf was a religious garment, presumed it would be worn at work, and refused to hire her because the company requires sales agents to wear a uniform with no additions or exceptions (including a headscarf). According to EEOC guidance this is religious discrimination unless the employer can demonstrate that no reasonable accommodation was possible absent undue hardship. The failure to conduct an interactive process type discussion in particular prevents the employer in this case from even knowing whether an accommodation would even be made, let alone whether any would be reasonable or an undue hardship.
  • Grooming Rules. Employee wears long hair pursuant to his Native American religious beliefs. He applies for a job as a server at a restaurant which requires its male employees to wear their hair “short and neat,” in order to provide a certain image to its customers. When the restaurant manager informs applicant that if offered the position, he will have to cut his hair, he explains that he keeps his hair long based on his religious beliefs and offers to wear it held up with a clip or under a hair net. The manager refuses this accommodation and denies him the position based on his long hair.  Since the application could have been accommodated, without undue hardship, by wearing his hair in a ponytail or held up with a clip, the employer will be liable for denial of reasonable accommodation and discriminatory failure to hire. BUT….an employee who alleges she was terminated from her job as a steel mill laborer because of her religion (Pentecostal) after her requested accommodation to wear a skirt instead of pants in violation of the mill’s dress code was not discriminated against because the dress code was essential to the safe and efficient operation of the mill and evidence proved that the code was imposed following several accidents in which skirts worn by employees were caught in the same type of mill machinery that employee operated.
  • Workplace Practices. A server at a restaurant informs her manager that she would not be able to join other waitresses in singing “Happy Birthday” to customers because she is a Jehovah’s Witness whose religious beliefs do not allow her to celebrate holidays, including birthdays. There were enough servers on duty at any given time to perform this singing without affecting service. The manager refused any accommodation. If the server files a Title VII charge alleging denial of religious accommodation, the EEOC will find in favor of the employee because the restaurant could have accommodated her with little or no expense or disruption.
  • Time/Place for Prayer. An employee whose assigned work area is a factory floor rather than an enclosed office asks his supervisor if he may use one of the company’s unoccupied conference rooms to pray during a scheduled break time. The supervisor must grant this request if it would not pose an undue hardship, for example if the only conference room is used for work meetings at that time. However, the supervisor is not required to provide the employee with his choice of the available locations and can meet the accommodation obligation by making any appropriate location available that would accommodate the employee’s religious practice, for example, by offering an unoccupied area of the work space rather than the conference room.

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:

  • Avoid openly questioning the credibility of a stated religious belief and ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. Only when an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.  Employers should avoid cross-examining an employee about the legitimacy of a religious belief and instead work cooperatively to try to identify an accommodation that does not create an undue hardship.
  • Develop, prepare and publish formal procedures to help prevent religious discrimination. Employers should have a well-publicized and consistently applied anti-discrimination/anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for reporting harassment; and (4) contains an assurance that complainants will be protected against retaliation. Employers may also wish to consider developing procedures for processing requests for religious accommodations.
  • Promptly address issues. Once an employer is on notice that an employee objects to religious expression by another employee or that an employee believes he/she has been discriminated against on the basis of religion, the employer should investigate and, if appropriate, take steps to ensure that the expression in question does not become sufficiently severe or pervasive to create a hostile work environment.  Employers also should individually assess each request for a religious accommodation and avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate.
  • Communicate with and train employees. Employers should train their staff on religious discrimination just like they would other forms of harassment.  It is about creating a culture of acceptance and openness.  Employers should inform employees and applicants that they will make reasonable efforts to accommodate religious practices, and they should train managers and supervisors on how to recognize religious accommodation requests from employees and to consider alternative available accommodations if the particular accommodation requested would pose an undue hardship.
  • Establish cooperation when assessing accommodation requests. An employer is not required to provide an employee’s preferred accommodation if there is more than one reasonable alternative. An employer must, however, consider the employee’s proposed method of accommodation and, if it is denied, explain to the employee why it is not being granted.  When necessary, an employer should 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.
  • And ALWAYS Treat all applicants/employees the same regardless of their religious views. In all matters, employees should make employment decisions neutrally and without any hostility to religion or religious viewpoints or to a lack of religiosity of an applicant or employee.

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 discrimination.  So as always when it comes to the law, ask your lawyer when you have any specific issue to address, and stay tuned!