Thorny religious issues highlighted in new manual EEOC provides clarity regarding workplace bias based on religion.

By: Morin I. Jacob
National Law Journal, January 12, 2009
As a culture with rules to maintain order, we make judgments about whether beliefs and practices labeled as religious will be protected under the law.

If a religion calls for certain followers to go nude at all times, does the law require an employer to accommodate this religious practice? Digambara, a subsect of the Indian religion called Jainism, expects certain believers to not wear any clothing, but instead to "wear" the environment. Digambara ascetics have only two possessions: a peacock feather broom and a water gourd. Is this religious practice entitled to legal protection in the workplace under Title VII of the Civil Rights Act of 1964?

The U.S. Equal Employment Opportunity Commission (EEOC) has issued a new compliance manual intended to help employers answer such questions.

There has been a sharp increase in claims of discrimination and harassment based on religion by all ethnic and religious groups. Since the early 1990s, the EEOC has seen the number of complaints of discrimination and harassment based on religious beliefs more than double.

One possible explanation is the quickly increasing number of groups from diverse religious backgrounds living in the United States. Another is that employees are better educated and more aware of their legal rights to be free from harassment, discrimination and retaliation in the workplace.

In 2008, the EEOC decided to respond to this rise in charges of discrimination and harassment filed by employees holding religious beliefs. Whatever the reason for the increase in religious discrimination and harassment claims, the EEOC was compelled to provide better guidance for employers.

In July 2008, the EEOC unanimously voted to issue Compliance Manual 12, addressing workplace discrimination, harassment and retaliation based on religion. The new 12 was drafted primarily to benefit employers, but it also will be a tool for investigations by EEOC staff into employee claims based on religion.

Section 12 includes a comprehensive review of the relevant provisions of Title VII, which seeks to ensure that individuals enjoy the freedom to exist, advance and succeed in the workplace, regardless of their religious beliefs and values. Notably, 12 does not set forth new law or modify existing EEOC regulations on religious discrimination, harassment and retaliation. Instead, 12 consolidates recent Title VII case law and the EEOC's position regarding issues surrounding religion into one document.

In addition to 12 of the Compliance Manual seeking to highlight and clarify the law surrounding religion under Title VII, it also provides practical tips for employers to assist with workplace issues involving an employee's right to religious freedom balanced against the employer's need to maintain a productive work environment. Some of these will be explored further below.

Section 12 helps employers define what practices constitute "religion" that may require a religious accommodation. The U.S. Supreme Court has defined religion broadly under Title VII to include not only traditional, organized religions such as the monotheistic faiths (Christianity, Islam and Judaism), but also religious beliefs that are held by a few people or even one person. Although the courts broadly interpret religion so as to resolve doubts about certain practices and beliefs in favor of being characterized as "religious," this is not without limit. For example, the courts have held that religion must normally concern "ultimate ideas" about "life, purpose, and death." U.S. v. Meyers, 95 F.3d 1475, 1483 (10th Cir. 1996); Africa v. Commonwealth of Pa., 662 F.2d 1025, 1032 (3d Cir. 1981).

Furthermore, the courts have held that personal preferences, political, economic, philosophical and social beliefs are not entitled to protection under Title VII. EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 56 (1st Cir. 2002); Cordero Jimenez v. University of Puerto Rico, 371 F. Supp. 2d 71, 75 (D.P.R. 2005); EEOC Compliance Manual, No. 915.003 12, p. 8 (July 22, 2008).

Case-by-case analysis

An employer must look at each employee's acts on a case-by-case basis to determine whether the activity is religious and thus entitled to Title VII protection. In order for a practice that an employee engages in to be "religious," the act must be motivated by religious faith. For example, a particular practice, such as a restricted diet, may be engaged in by a secular person for health reasons and by another person for religious purposes. The focus is on the reason for the act, not the act itself. Typical religious practices include but are not limited to praying, wearing or displaying religious symbols or clothing, refraining from certain activities or attending worship services.

Section 12 aims to help employers understand which religious beliefs must be accommodated in the workplace. In addition to a religion being about "ultimate ideas" and for practices to be motivated by religious faith, a religious belief must be "sincerely held" to require a religious accommodation. U.S. v. Seeter, 380 U.S. 163, 185 (1965).

Section 12 stresses that employers must assume that an employee's request for religious accommodation is based on a sincerely held religious belief. This is because of the broad definition of religion, which is so expansive that it assumes that employers are incapable of knowing about all valid beliefs and practices that exist and warrant accommodation.

When there is doubt by the employer, the courts have recognized certain factors to help determine whether an employee's religious beliefs are sincerely held: whether the employee has behaved in a manner that is contradictory to the edicts of the employee's espoused religious faith; whether the employee previously requested the same accommodation for secular purposes and is now making the same request but for purported religious reasons; whether the requested accommodation sought has a benefit for secular purposes; and any other evidence suggesting that the employee is not seeking an accommodation for religious purposes.

Section 12 provides guidance to employers regarding when they must provide religious accommodations. An accommodation is not an absolute, even when an employee espouses a sincerely held belief. Religious practices, observances and beliefs that are sincerely held must be accommodated if the accommodation does not pose an undue hardship on the employer. The burden is placed squarely on the employee to provide sufficient information that there is a conflict between a religious belief or practice and a job duty so that an accommodation is necessary. In addition, the onus is on the employee to make a request for an accommodation; there is no obligation for the employer to offer an accommodation absent a request.

Common examples of requests include modifications of work schedules to allow for attendance at worship services (such as church on Sunday mornings or Shabbat services on Friday evenings), allowing certain employees to be exempt from certain dress code or grooming rules (such as Sikhs who wear turbans or Muslim women who choose to wear head scarves), or exempting certain employees from certain activities that violate their religious beliefs (such as Jehovah's Witnesses attending birthday or holiday celebrations or Muslim employees attending events where alcohol is served).

The new Compliance Manual explains the standard that an employer must show to demonstrate that an undue burden or hardship exists that exempts the employer from the requirement that a religious accommodation must be provided to an employee. EEOC Compliance Manual, No. 915.003, 12, at 56-63 (July 22, 2008).

More than de minimus

An employer must be able to demonstrate "more than a de minimis" cost or burden to make the requisite showing under Title VII. Notably, this is a less stringent requirement for employers to meet than the "undue hardship" requirement for mental or physical disability accommodations. But the burden of showing undue hardship under Title VII still remains on the employer. Section 12 identifies the following factors for employers to consider in determining whether an undue hardship or burden exists: the cost in relation to the operating costs and size of the employer, and the number of people requesting the accommodation.

The following specific examples are identified in 12 as instances when the cost may be deemed more than de minimis for the employer, thereby allowing the employer to reject the request for an accommodation: when an accommodation requires regular payment of overtime wages; when it affects the rights of other employees who have earned job preference rights based on seniority; when it diminishes the efficiency of workers in other jobs; when it infringes other employees' job rights or benefits; when it has detrimental effects on workplace safety; when other employees are forced to carry the burden of the accommodated employee's hazardous or onerous work; and when the proposed accommodation conflicts with other existing laws. EEOC Compliance Manual, No. 915.003, 12, at 58-60 (July 22, 2008).

The Compliance Manual also addresses harassment on the basis of an employee's religious beliefs. The analysis is the same as the test for harassment on the basis of other proscribed Title VII grounds (race, sex, age, etc.). Quid pro quo harassment on the basis of religion occurs when the employee is required or coerced to adopt, change or abandon a religious practice or belief as a condition of employment. Hostile work environment religious harassment exists when the employee is subjected to unwelcome statements or conduct based on religion that is so severe or pervasive that the employee reasonably finds the work environment abusive.

Section 12 provides a thorough discussion of the elements of both types of harassment and provides tips to help avoid harassment claims. EEOC Compliance Manual, No. 915.003, 12, at 29-45 (July 22, 2008).

For example, 12 states that the employer should have a publicized anti- harassment policy, should allow religious expression to the same extent that other personal expression is allowed that is not harassing or disruptive, and should immediately intervene when first aware of abusive or insulting conduct (even when no complaint has been made by an employee) to avoid further escalation of an incident.

In addition to discrimination and harassment based upon religious beliefs, retaliation because an individual engages in a protected activity also is prohibited by Title VII and discussed in the new Compliance Manual. EEOC Compliance Manual, No. 915.003, 12, at 90-91 (July 22, 2008).

Tips to avoid retaliation

The EEOC considers a request for a religious accommodation to be a protected activity, and thus an employee cannot be retaliated against for making such a request. The Compliance Manual provides employers with tips to avoid retaliation claims. For example, employers are encouraged to train supervisors to be aware of their anti-retaliation obligations under Title VII. Employers also are encouraged to document the legitimate business reasons for disciplinary or performance-related actions taken against an employee, and then communicate those reasons to the employee so that the likelihood of a retaliation claim is reduced.

Employers should evaluate all requests for religious accommodation made by employees before they deny them, to avoid potential liability. Although ยง 12 does not change the existing law in this area, it provides much-needed guidance regarding a pervasive form of harassment, discrimination and retaliation. It would behoove employers to analyze their existing anti-harassment and anti-discrimination policies to determine whether modifications to these policies are necessary in light of the new tools provided by the EEOC.

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