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Your Employee Matters


By September 1, 2008No Comments

On July 23, 2008, the EEOC updated its pronouncements on the meaning of “religious discrimination” under Title VII, how to manage and address competing employee rights in the area of religion, and how to avoid engaging in religious discrimination in the workplace.

The EEOC issued three documents: an update to its Compliance Manual Section on religious discrimination; a “Question and Answer” document addressing basic issues in that area; and a “Best Practices Manual” that provides suggested strategies for legal compliance. The documents are intended to provide guidance to employers, employees, and legal practitioners, as well as EEOC investigators addressing religious claims under Title VII. Broadly speaking, the documents address definitions (e.g. what is religion), fundamental legal questions (e.g. what is religious harassment or discrimination and what is required to accommodate religion); and compliance guidance (e.g. how to avoid claims, how to balance demands to engage in religious expression versus demands to be free from workplace proselytizing).

What is ‘Religion’?
As the EEOC Q&A document explains, “For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, 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. An employee’s belief or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few — or no — other people adhere to it. Title VII protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.” Under this broad view of “religion” adopted by the EEOC, an employer has virtually no ability to question an employee’s assertion that he/she is “covered” with respect to asserted religious beliefs (or non-beliefs).

The same Q&A document identifies a “religious practice” that might trigger the accommodation duty: “Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Whether a practice is religious depends on the employee’s motivation.”

The EEOC notes, however, that mere personal preferences are not “religious beliefs” even if they are strongly held. Thus, a person who personally espouses or adheres to vegetarianism would not in most cases be espousing a religious belief. Similarly, using an example from the Compliance Manual, an employee’s tattoos and body piercing would not be deemed religious (such as to require an exemption from a company dress code) where it was advanced as a form of self-expression through body art (as compared with rooted in a religious tradition or belief).

Religious Harassment and Discrimination
The EEOC explains that discrimination includes treating individuals disparately because of their religion in the terms and conditions of employment (e.g. interviewing, hiring, firing, promoting, and the like). It also includes differential treatment generally. As the EEOC Q&A document explains, “For example, if an employer allowed one secretary to display a Bible on her desk at work, while telling another secretary in the same workplace to take the Quran off his desk and out of view because co-workers ‘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,’ this would be differential treatment in violation of Title VII.” Similarly, adopting different security requirements for adherents of some religions (e.g. Muslims) as opposed to others would be religious discrimination.

The Compliance Manual has this to say about harassment: “Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of ‘quid pro quo’ harassment might also give rise to a disparate treatment or denial of accommodation claim in some circumstances), or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.” Permitting or tolerating harassment of employees by customers is equally illegal as is permitting such conduct by managers or employees.

Compliance Guidance
Perhaps most useful is the EEOC’s guidance on how to avoid claims and fulfill obligations under the law. The EEOC Best Practices Manual suggests that employers ensure that their policies explain the legal obligations in this area. Supervisors and managers should also be trained to understand when an issue of religious discrimination and/or a duty of accommodation arises and how to respond to it. The Manual and the other EEOC documents provide examples that can help employers balance the rights of employees to express religion against the right to be free of undue religious pressure in the workplace.

(Courtesy, Shaw and Rosenthal of the Worklaw® Network)