New EEOC Guidance on Religious Discrimination
August 2, 2008
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2008
Applicants and employees should "enjoy the freedom to compete, advance and succeed in the workplace irrespective of their religious beliefs," according to new guidance on religious discrimination issued by the U.S. Equal Employment Opportunity Commission (EEOC) on July 22, 2008.
The EEOC’s guidance includes a new Compliance Manual Section regarding workplace discrimination on the basis of religion, a Best Practices booklet, and a companion Question-and-Answer fact sheet. While the agency’s advice creates no new law, it provides a helpful summary of the EEOC’s views on the scope of protection of religious practices and required accommodations.
Broad Scope of Religion – Under Title VII of the Civil Rights Act of 1964, religion includes not only traditional, organized religions, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.
Prohibition on Disparate Treatment and Harassment - Title VII’s prohibition against disparate treatment and harassment based on religion is generally the same for other protected categories. "Disparate treatment violates the statute whether the difference is motivated by bias against or preference toward an applicant or employee due to his religious beliefs, practices, or observances – or lack thereof."
Reasonable Accommodations Required - Title VII requires an employer, once on notice that a religious accommodation is needed, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an "undue hardship."
Undue Hardship is a Lower Standard - Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a "more than de minimus" cost or burden. This is a lower standard for an employer to meet than undue hardship under the Americans with Disabilities Act (ADA) which is defined in that statute as "significant difficulty or expense." Examples of more than de minimus costs or burdens are:
- The regular payment of premium wages,
- The hiring of additional employees,
- A diminishment in efficiency,
- An interference with employee job rights and benefits,
- An impairment to workplace safety, and
- An inconsistency with a bona fide seniority system or collective-bargaining agreement.
Common Accommodations – Depending on whether they represent an undue hardship under the circumstances, employers have accommodated employee’s religious beliefs and practices in these common ways:
Schedule Changes, Voluntary Substitutes and Shift Swaps – If a swap or substitution would result in the payment of premium wages, the frequency of the arrangement will be relevant to determining if it poses an undue hardship.
Changing Job Tasks or Providing a Lateral Transfer – If an accommodation in an employee’s current job is not possible, the employer “needs to consider whether lateral transfer is a possible accommodation.” Whether such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a collective-bargaining agreement or seniority system.
Making an Exception to Dress and Grooming Codes – The EEOC notes that there may be limited situations in which the need for uniformity of appearance is so important that modifying the dress code would pose an undue hardship and a case-by-case determination is advisable.
Use of Work Facility for Observance – The EEOC notes that if the employer allows employees to use the facilities at issue for non-religious activities not related to work, it may be difficult for the employer to demonstrate that allowing the facilities to be used in the same manner for religious activities is not a reasonable accommodation or poses an undue hardship.
Accommodations Related to Union Dues and Agency Fees – Employees objecting to joining or financially supporting a labor union on religious grounds can be accommodated by allowing the equivalent of the union dues or agency fees to be paid to a charity agreeable to the employee, the union, and the employer.
Accommodating Prayer, Proselytizing and Other Expression - In determining whether permitting an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, relevant considerations may include the effect such expression has on co-workers, customers, or business operations.
Bottom Line - Religious discrimination charge filings with the EEOC nationwide have risen substantially over the past 15 years, doubling from 1,388 in fiscal year 1992 to a record level of 2,880 in fiscal year 2007.
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 360 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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