WORKPLACE LAW -
New EEOC Guidelines re Religious Discrimination

Question:

I heard that the Equal Employment Opportunity Commission (EEOC) has issued new guidelines on religious discrimination in the workplace. As an employer with employees who practice numerous religions, what do I need to know about these guidelines?

Answer:

The EEOC did in fact issue new guidelines on July 22, 2008 regarding religious discrimination which can be found in Section 12 of the EEOC Compliance Manual. These new guidelines were a response to an increase in the number of filings of religious discrimination charges during a time when the United States is becoming more and more religiously diverse. In addition to the guidelines, the EEOC issued a question and answer fact sheet and a best practices booklet which serve to further educate the public. These three documents can be obtained online at http://www.eeoc.gov.

However, as a preface, I should explain that these documents are not the law, but instead serve to inform those interested as to the EEOC’s positions regarding religious discrimination. The governing law can be found in Title VII of the Civil Rights Act of 1964 and corresponding regulations. Among other things, Title VII prohibits employers with 15 or more employees from discriminating in employment based on religion. The following is a brief description of the three new EEOC documents.

First, Section 12 of the EEOC Compliance Manual contains new guidance, instructions, and examples to be used by employers in complying with the law and when analyzing religious discrimination charges. Within these guidelines, the EEOC stresses the necessity of communication between employers and employees in this arena. These guidelines focus on Title VII and on EEOC policies regarding religious discrimination, accommodation, and harassment. Specifically, the guidelines state that a reasonable accommodation must be granted unless it imposes an undue hardship on the employer’s business operations. The terms “reasonable accommodation” and “undue hardship” are both addressed in depth.

Furthermore, these new guidelines educate employers as to the coverage of Title VII, employment decisions regarding religion, employer liability for prohibited conduct, and related forms of discrimination. The 55 examples contained in these guidelines give hypothetical fact patterns, followed by the EEOC’s stance on whether or not the fact patterns give rise to a Title VII claim. One hypothetical explores a situation where the president of a company posts a job announcement at the Hindu Temple he attends and asks other members of the temple to refer only Hindu friends or family members. The EEOC makes it clear that the President is engaging in unlawful discrimination by limiting recruitment to Hindus. When an employer is presented with a situation in which there may be Title VII liability, the employer can utilize this and other examples for guidance as to what actions to take and what actions not to take.

The second document, the “Question and Answer Fact Sheet,” explains the EEOC’s viewpoint on a variety of issues including what constitutes a religion, when employers must accommodate employees, the effect of accommodations on other employees, and how the laws interrelate. For example, one question asks, “What is religion under Title VII?” The answer that follows explains that the definition of religion includes not only theistic beliefs, but also non-theistic moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. Another question and the accompanying answer address what employers should do if an employee complains about a co-worker’s accommodation. In addition, the question and answer fact sheet sets forth a long list of accommodations that are commonly granted by employers, including:

  • Scheduling changes, voluntary substitutes, and shift swaps,
  • Making an exception to dress and grooming rules,
  • Using the work facility for a religious observance, and
  • Accommodating prayer, proselytizing, and other forms of religious expression.

The third document, the “Best Practices Booklet,” gives guidance to employers with respect to disparate treatment based on religion, religious harassment, and retaliation. The booklet explains that employers can reduce the risk of retaliation claims by training managers and supervisors to be aware of their anti-retaliation obligations under Title VII and by careful and timely recording of the accurate business reasons for disciplinary or performance related actions. Additionally, the EEOC notes in the booklet that employers should 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 three EEOC documents discussed above provide excellent guidance regarding religious discrimination in the workplace. These guidelines can help employers avoid liability and properly handle difficult situations. Employers should have management and supervisory employees review them and modify their policies and actions accordingly.
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