EEOC Issues Compliance Manual on Religious Bias Claims

Religious discrimination charges filed with the Equal Employment Opportunity Commission have increased 100 percent over the past 15 years. This steady increase of charges, among other factors, spurred the EEOC to issue a new compliance manual on religious discrimination last summer.

The guidance in the revised compliance manual does not change EEOC policy. Rather, 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 for 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 obligation 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, the extent of an employer's obligation to accommodate religious beliefs and practices, disparate treatment in employment decisions, and religious harassment in the workplace.

Statutory Definition of Religion

The EEOC interprets "religion" very broadly under Title VII. In addition to the more traditional theistic religions such as Christianity, Judaism, Islam, Hinduism and Buddhism, "religion" also includes, as the manual notes, "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." 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.

Religious Accommodation

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 job application process. Once an employer has been put on notice, its 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 accommodate an employee's request if doing so would pose an undue hardship on the employer. While the undue hardship standard under Title VII—"more than a de minimis cost"—is lower than the standard for accommodation 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 an 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. One example given by the EEOC (and taken directly from a federal court decision), for example, is of a man who practiced the Kemetic religion, which is based on an ancient Egyptian faith, and did not want to cover small wrist tattoos that he received during a religious ceremony, as his employer had requested, because "doing so would signify a rejection of Ra," the Egyptian god of the sun. 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 also provides "Best Practices" in both the manual and a stand-alone document, "Best Practices for Eradicating Religious Discrimination in the Workplace." These EEOC-endorsed 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, avoiding assumptions and stereotypes about what constitutes a religious belief or practice, and about what accommodation is appropriate.
• When faced with a request for accommodation that cannot be promptly implemented, consider offering alternative methods of accommodation on a temporary basis, while exploring permanent solutions. In this situation, an employer should also keep the employee apprised 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 whether there are any exceptions for religious accommodation or other avenues to allow for the accommodation. Employers should also consider seeking a voluntary modification to a collective bargaining agreement to accommodate an employee's religious needs.
• Adopt flexible leave and schedule policies 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, thus making it easy for them to take religious holidays off if the company is open for business.
• Adopt and publicize a policy permitting voluntary substitutions or shift swaps between employees with substantially similar qualifications.
• Make an effort 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."

Examples of when a secular employer can reasonably require an employee to be of a certain religion are very limited because employers that are not religious organizations must rely on the bona fide occupational qualification (BFOQ) defense to justify a religious preference. The defense is a narrow one and is rarely successful.

Generally, religion can be considered a BFOQ when membership in a certain religion is reasonably necessary to the performance of a job. For example, a company selling religious books might be allowed to hire only salespeople of the particular religion involved (although it is questionable whether this argument would be successful). The company, however, could not refuse to hire a janitor because of his religion, as it would not be "reasonably necessary" to the operation of its business.

There are only a few cases where an employer has successfully defended itself against a religious discrimination claim using a BFOQ as its defense. In 1983, for example, a federal appeals court upheld an employer's decision not to hire a non-Muslim pilot who would not convert to Islam because the company flew to Saudi Arabia; at the time, non‑Muslim employees caught flying into Mecca would, under Saudi Arabian law, be beheaded. In another case, Loyola University of Chicago, though deemed not to be a religious organization under Title VII, was found to be justified in insisting that there be some Jesuit presence in its philosophy department since the university was founded by Jesuits, continues to have a Jesuit tradition, and requires all undergraduates to take philosophy.

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 help employers avoid claims of disparate treatment based on religion, the EEOC provides the following suggestions as "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 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 based on religion that is so severe or pervasive 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 help employers avoid religious harassment claims, the EEOC provides the following suggestions as "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 the attention of management; and (4) contains an assurance that individuals who complain 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 the company allows other types of personal expression that are not harassing or disruptive.
• Take steps to end conduct that may become sufficiently severe or pervasive as 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 types of religious expression, they should avoid expressions that might—due to their supervisory authority—reasonably be perceived by subordinates as coercive, even when not so intended.

Faegre & Benson summer associate Joe Wearmouth contributed to this article.

The EEOC'S compliance manual section on religious discrimination can be accessed on the commission's Web site at http://eeoc.gov/policy/docs/religion.html.

The stand-alone document, "Best Practices for Eradicating Religious Discrimination in the Workplace,"can be accessed at http://eeoc.gov/policy/docs/best_practices_religion.html.