EEOC issues New Guidelines on Religious Discrimination

Thanks to the tireless efforts of many the United States Equal Employment Opportunity Commission has released new guidelines that make clearer recommendations regarding workplace religious discrimination and accommodation of religious practices.

The full guidelines, available at http://www.eeoc.gov/policy/docs/religion.html , are remarkable in that the EEOC has clarified definitions and provided clear examples of prohibited conduct that can be used in evaluating cases.

As it is a publicly available text, I have posted the content below for purposes of fostering discussion on this matter. Please refer to the EEOC web site above for any changes.

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	DIRECTIVES TRANSMITTAL	Number 915.003
EEOC
		7/22/2008

SUBJECT: EEOC COMPLIANCE MANUAL

PURPOSE: This transmittal covers the issuance of Section 12 of the new Compliance Manual on “Religious Discrimination”. The section provides guidance and instructions for investigating and analyzing charges alleging discrimination based on religion.

EFFECTIVE DATE: Upon receipt

DISTRIBUTION: EEOC Compliance Manual holders

OBSOLETE DATA: This Section of the Compliance Manual replaces Section 628: Religious Accommodation, EEOC Compliance Manual, Volume II and its Appendices: Appendix A, Policy Statement on Ansonia Board of Education v. Philbrook and Religious Accommodation; Appendix B, Policy Guidance On �New Age’ Training Programs Which Conflict With Employees’ Religious Beliefs; and Appendix C, Religious Objections to Unionism. It also replaces the following policy documents: Religious Organizations that Pay Women Less than Men in Accordance with Religious Beliefs;Religious Organization Exemption Under Title VII of the Civil Rights Act of 1964, as amended; and Policy Statement on Goldman v. Weinberger (Accommodation of the Wearing of Religious Dress).

The Commission’s Guidelines on Discrimination Because of Religion, 29 C.F.R. Part 1605, remain in effect.

__________/s/__________
Naomi C. Earp
Chair

SECTION 12: RELIGIOUS DISCRIMINATION

Printable version (PDF)

SECTION 12: RELIGIOUS DISCRIMINATION

OVERVIEW

This Section of the Compliance Manual focuses on religious discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII protects workers from employment discrimination based on their race, color, religion, sex, national origin, or protected activity. Solely with respect to religion, Title VII also requires reasonable accommodation of employees’ sincerely held religious beliefs, observances, and practices when requested, unless accommodation would impose an undue hardship on business operations. Undue hardship under Title VII is defined as “more than de minimis” cost or burden — a substantially lower standard for employers to satisfy than the “undue hardship” defense under the Americans with Disabilities Act (ADA), which is defined instead as “significant difficulty or expense.”

The prohibition on discrimination and the requirement of reasonable accommodation apply whether the religious views in question are mainstream or non-traditional, and even if not recognized by any organized religion. These protections also extend to those who profess no religious beliefs.

Questions about religion in the workplace have increased as religious pluralism has increased. In a 2001 survey of human resource professionals conducted by the Society for Human Resource Management and the Tanenbaum Center for Interreligious Understanding, 36% of human resource professionals who responded reported an increase in the religious diversity of their employees in the preceding five years. Further, the number of religious discrimination charges filed with EEOC has more than doubled from 1992 to 2007, although the total number of such charges remains relatively small compared to charges filed on other bases. Many employers seek legal guidance in managing the issues that arise as religious diversity in the American workplace continues to increase.

This Section of the Compliance Manual is designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VII’s prohibition against religious discrimination. The Section defines religious discrimination, discusses typical scenarios in which religious discrimination may arise, and provides guidance to employers on how to balance the needs of individuals in a diverse religious climate. The Section is organized by legal topic, as follows:

I – Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.
II – Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.
III – Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.
IV – Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.
V – Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

Some charges of religious discrimination may raise multiple claims, for example requiring analysis under disparate treatment, harassment, and denial of reasonable accommodation theories of liability. In addition, there are some instances where Title VII religious discrimination cases implicate federal constitutional provisions. For example, a government employer may contend that granting a requested religious accommodation would pose an undue hardship because it would constitute government endorsement of religion in violation of the Establishment Clause of the First Amendment. A private sector employer may contend that its own First Amendment rights under the Free Exercise or Free Speech Clauses would be violated if it is compelled by Title VII to grant a particular accommodation. In addition, government employees often raise claims under the First Amendment parallel to their Title VII accommodation claims. Defining the exact parameters of the First Amendment is beyond the scope of this document. However, these First Amendment issues are referenced throughout this document in order to illustrate how they often arise in Title VII cases.

12-I COVERAGE

Title VII prohibits covered employers, employment agencies, and unions from:

(1) treating applicants or employees differently (disparate treatment) based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits;
(2) subjecting employees to harassment because of their religious beliefs or practices – or lack thereof – or because of the religious practices or beliefs of people with whom they associate (e.g., relatives, friends, etc.);
(3) denying a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices – or lack thereof – if an accommodation will not impose an undue hardship on the conduct of the business; and,
(4) retaliating against an applicant or employee who has engaged in protected activity, including participation (e.g., filing an EEO charge or testifying as a witness in someone else’s EEO matter), or opposition relating to alleged religious discrimination (e.g., complaining to human resources department about alleged religious discrimination).

Although more than one of these theories of liability may apply in a particular case, they are discussed in separate parts of this manual for ease of use.

· NOTE TO EEOC INVESTIGATORS ·

Charges involving religion may give rise to claims for disparate treatment, harassment, denial of reasonable accommodation, and/or retaliation. Therefore, these charges should be investigated and analyzed under all four theories of liability to the extent applicable, even if the charging party only raises one claim.

A. Definitions

Overview: Religion is very broadly defined under Title VII. Religious beliefs, practices, and observances include those that are theistic in nature, as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religious beliefs can include unique views held by a few or even one individual; however, mere personal preferences are not religious beliefs. Title VII requires employers to accommodate religious beliefs, practices, and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer.

1. Religion

Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” 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. Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” A belief is “religious” for Title VII purposes if it is “�religious’ in the person’s own scheme of things,” i.e., it is “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by � God.” 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.

Religious beliefs include theistic beliefs as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.

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. Determining whether a practice is religious turns not on the nature of the activity, but on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons. Whether or not the practice is “religious” is therefore a situational, case-by-case inquiry. For example, one employee might observe certain dietary restrictions for religious reasons while another employee adheres to the very same dietary restrictions but for secular (e.g., health or environmental) reasons. In that instance, the same practice might in one case be subject to reasonable accommodation under Title VII because an employee engages in the practice for religious reasons, and in another case might not be subject to reasonable accommodation because the practice is engaged in for secular reasons.

The following examples illustrate these concepts:

EXAMPLE 1
Employment Decisions Based on “Religion”

An otherwise qualified applicant is not hired because he is a self-described evangelical Christian. A qualified non-Jewish employee is denied promotion because the supervisor wishes to give a preference based on religion to a fellow Jewish employee. An employer terminates an employee based on his disclosure to the employer that he has recently converted to the Baha’i Faith. Each of these is an example of an employment decision based on the religious affiliation of the applicant or employee, and therefore is based on “religion” within the meaning of Title VII.

EXAMPLE 2
Religious Practice versus Secular Practice

A Seventh-day Adventist employee follows a vegetarian diet because she believes it is religiously prescribed by the scriptural passage “[b]ut flesh with the life thereof, which is the blood thereof, shall ye not eat,” (Genesis 9:4). Her vegetarianism is a religious practice, even though not all Seventh-day Adventists share this belief or follow this practice, and even though many individuals adhere to a vegetarian diet for purely secular reasons.

EXAMPLE 3
Types of Religious Practice or Observance

A Catholic employee requests a schedule change so that he can attend church services on Good Friday. A Muslim employee requests an exception to the company’s dress and grooming code allowing her to wear her headscarf, or a Hindu employee requests an exception allowing her to wear her bindi (religious forehead marking). An atheist asks to be excused from the religious invocation offered at the beginning of staff meetings. An adherent to Native American spiritual beliefs seeks unpaid leave to attend a ritual ceremony. An employee who identifies as Christian but is not affiliated with a particular sect or denomination requests accommodation of his religious belief that working on his Sabbath is prohibited. Each of these accommodation requests relates to a “religious” belief or practice within the meaning of Title VII. By contrast, a request for a schedule change to help set up decorations or prepare food for a church event, for instance, typically does not involve a “religious” belief or practice within the meaning of Title VII.

EXAMPLE 4
Supervisor Considers Belief Illogical

Morgana asks for time off on October 31 to attend the “Samhain Sabbat,” the New Year observance of Wicca, her religion. Her supervisor refuses, saying that Wicca is not a “real” religion but an “illogical conglomeration” of “various aspects of the occult, such as faith healing, self‑hypnosis, tarot card reading, and spell casting, which are not religious practices.” The supervisor’s refusal to accommodate her on the ground that he believes her religion is illogical violates Title VII unless the employer can show her request would impose an undue hardship. The law applies to religious beliefs even though others may find them “incorrect” or “incomprehensible.”

EXAMPLE 5
Unique Belief Can Be Religious

Edward practices the Kemetic religion, based on ancient Egyptian faith, and affiliates himself with a tribe numbering fewer than ten members.He states that he believes in various deities, and follows the faith’s concept of Ma’at, a guiding principle regarding truth and order that represents physical and moral balance in the universe. During a religious ceremony he received small tattoos encircling his wrist, written in the Coptic language, which express his servitude to Ra, the Egyptian god of the sun. When his employer asks him to cover the tattoos, he explains that it is a sin to cover them intentionally because doing so would signify a rejection of Ra. These can be religious beliefs and practices even if no one else or few other people subscribe to them.

EXAMPLE 6
Personal Preference That is Not a Religious Belief

Sylvia wears several tattoos and has recently had her nose and eyebrows pierced. A newly hired manager implements a dress code that requires that employees have no visible piercings or tattoos. Sylvia says that her tattoos and piercings are religious because they reflect her belief in body art as self-expression and should be accommodated. However, the evidence demonstrates that her tattoos and piercings are not related to any religious belief system. For example, they do not function as a symbol of any religious belief, and do not relate to any “ultimate concerns” such as life, purpose, death, humanity’s place in the universe, or right and wrong, and they are not part of a moral or ethical belief system. Therefore, her belief is a personal preference that is not religious in nature.

2. Sincerely Held

Title VII requires employers to accommodate only those religious beliefs that are “sincerely held.” Therefore, whether or not a religious belief is “sincerely held” by an applicant or employee is only relevant to religious accommodation, not to claims of disparate treatment or harassment because of religion. In those claims, it is the motivation of the discriminating official, not the actual beliefs of the individual alleging discrimination, that are typically relevant in determining if the discrimination that occurred was because of religion. A detailed discussion of reasonable accommodation of sincerely held religious beliefs appears in § IV, but the meaning of “sincerely held” is addressed here.

Like the “religious” nature of a belief or practice, the “sincerity” of an employee’s stated religious belief is usually not in dispute. Nevertheless, there are some circumstances in which an employer may assert as a defense that it was not required to provide accommodation because the employee’s asserted religious belief was not sincerely held. Factors that – either alone or in combination – might undermine an employee’s assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. However, none of these factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.

3. Employer Inquiries into Religious Nature or Sincerity of Belief

Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information. See infra § IV-A-2.

·NOTE TO EEOC INVESTIGATORS ·

If the Respondent (R) disputes that the Charging Party’s (“CP’s”) belief is “religious,” consider the following:

Begin with the CP’s statements. What religious belief or practice does the CP claim to have? In some cases, the CP’s credible testimony regarding his belief or practice will be sufficient to demonstrate that it is religious. In other cases, however, the investigator may need to ask follow-up questions about the nature and tenets of the asserted religious beliefs, and/or any associated practices, rituals, clergy, observances, etc., in order to identify a specific religious belief or practice or determine if one is at issue.

Since religious beliefs can be unique to an individual, evidence from others is not always necessary.However, if the CP believes such evidence will support his or her claim, the investigator should seek evidence such as oral statements, affidavits, or other documents from CP’s religious leader(s) if applicable, or others whom CP identifies as knowledgeable regarding the religious belief or practice in question.

Remember, where an alleged religious practice or belief is at issue, a case-by-case analysis is required. Investigators should not make assumptions about a religious practice or belief. In some cases, to determine whether CP’s asserted practice or belief is “religious” as defined under Title VII, the investigator’s general knowledge will be insufficient, and additional objective information will have to be obtained, while nevertheless recognizing the intensely personal characteristics of adherence to a religious belief.

If the Respondent disputes that CP’s belief is “sincerely held,” the following evidence may be relevant:

Oral statements, an affidavit, or other documents from CP describing his or her beliefs and practices, including information regarding when CP embraced the belief or practice, as well as when, where, and how CP has adhered to the belief or practice; and/or,

Oral statements, affidavits, or other documents from potential witnesses identified by CP or R as having knowledge of whether CP adheres or does not adhere to the belief or practice at issue (e.g., CP’s religious leader (if applicable), fellow adherents (if applicable), family, friends, neighbors, managers, or co-workers who may have observed his past adherence or lack thereof, or discussed it with him).

B. Covered Entities

Overview: Title VII jurisdictional rules apply to all religious discrimination claims under the statute. However, specially-defined “religious organizations” and “religious educational institutions” are exempt from certain religious discrimination provisions, and a “ministerial exception” bars Title VII claims by employees who serve in clergy roles.

Title VII’s prohibitions apply to employers, employment agencies, and unions, subject to the statute’s jurisdictional requirements. SeeEEOC Compliance Manual, “Threshold Issues,” http://www.eeoc.gov/policy/docs/threshold.html. Those covered entities must carry out their activities in a nondiscriminatory manner and provide reasonable accommodation unless doing so would impose an undue hardship. Unions also can be liable if they knowingly acquiesce in employment discrimination against their members, join or tolerate employers’ discriminatory practices, or discriminatorily refuse to represent employees’ interests.

C. Exceptions

1. Religious Organizations

Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” That determination is to be based on “[a]ll significant religious and secular characteristics.” Although no one factor is dispositive, significant factors to consider that would indicate whether an entity is religious include:

Do its articles of incorporation state a religious purpose?
Are its day-to-day operations religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion)?
Is it not-for-profit?
Is it affiliated with or supported by a church or other religious organization?

This exception is not limited to religious activities of the organization. However, it only allows religious organizations to prefer to employ individuals who share their religion. The exception does not allow religious organizations otherwise to discriminate in employment on protected bases other than religion, such as race, color, national origin, sex, age, or disability. Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races. Similarly, a religious organization is not permitted to deny fringe benefits to married women but not to married men by asserting a religiously based view that only men can be the head of a household.

EXAMPLE 7
Sex Discrimination Not Excused

Justina works at Tots Day Care Center. Tots is run by a religious organization that believes that, while women may work outside of the home if they are single or have their husband’s permission, men should be the heads of their households and the primary providers for their families. Believing that men shoulder a greater financial responsibility than women, the organization pays female teachers less than male teachers. The organization’s practice of unequal pay based on sex constitutes unlawful discrimination.

2. Ministerial Exception

Courts have held, based on First Amendment constitutional considerations, that clergy members cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act, because “[t]he relationship between an organized church and its ministers is its lifeblood.” This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority.Thus, courts will not ordinarily consider whether a church’s employment decision concerning one of its ministers was based on discriminatory grounds, although some courts have allowed ministers to bring sexual harassment claims.

The ministerial exception applies only to those employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction. The exception is not limited to ordained clergy, and has been applied by courts to others involved in clergy-like roles who conduct services or provide pastoral counseling. However, the exception does not necessarily apply to everyone with a title typically conferred upon clergy (e.g., minister). In short, in each case it is necessary to make a factual determination of whether the function of the position is one to which the exception applies.

12-II EMPLOYMENT DECISIONS

A. General

Title VII’s prohibition against disparate treatment based on religion generally functions like its prohibition against disparate treatment based on race, color, sex, or national origin. Disparate treatment violates the statute whether motivated by bias against or preference toward an applicant or employee due to his religious beliefs, practices, or observances – or lack thereof. Thus, for example, except to the extent permitted by the religious organization and ministerial exceptions, an employer may not refuse to recruit, hire, or promote individuals of a certain religion, may not impose stricter promotion requirements for persons of a certain religion, and may not impose more or different work requirements on an employee because of that employee’s religious beliefs or practices. The following sub-sections address work scenarios that may lead to claims of religious discrimination.

1. Recruitment, Hiring, and Promotion

Employers that are not religious organizations may neither recruit individuals of a particular religion nor adopt recruitment practices, such as word-of-mouth recruitment, that have the purpose or effect of discriminating based on religion. Title VII permits employers that are not religious organizations to hire and employ 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.”

For example, an employer may not refuse to hire an applicant simply because he does not share the employer’s religious beliefs, and conversely may not select one applicant over another based on a preference for employees of a particular religion. Similarly, employment agencies may not comply with requests from employers to engage in discriminatory recruitment or referral practices, for example by screening out applicants who have names often associated with a particular religion (e.g., Mohammed). Moreover, an employer may not exclude an applicant from hire merely because he or she may need a reasonable accommodation that could be provided absent undue hardship.

EXAMPLE 8
Recruitment

Charles, the president of a company that owns several gas stations, needs managers for the new convenience stores he has decided to add to the stations. He 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 who may be interested in the position. He does no other recruitment. By limiting his recruitment to Hindus, Charles is engaging in unlawful discrimination.

EXAMPLE 9
Hiring

Mary is a human resources officer who is filling a vacant administrative position at her company. During the application process, she performs an Internet search on the candidates and learns that one applicant, Jonathan, has written an article for the local chapter of the Ethical Society setting forth his view that religion has been historically divisive and explaining why he subscribes to no religious beliefs or practices. Although Mary believes he is the most qualified candidate, she does not hire him because she knows that many current company employees are observant Christians like her, and she believes they would be more comfortable working with someone like-minded. By not hiring Jonathan because of his lack of religious identification, the company violated Title VII.

EXAMPLE 10
Promotion

Darpak, who practices Buddhism, holds a Ph.D. degree in engineering and applied for a managerial position at the research firm where he has worked for ten years. He was rejected in favor of a non-Buddhist candidate who was less qualified. The company vice president who made the promotion decision advised Darpak that he was not selected because “we decided to go in a different direction.” However, the vice president confided to co-workers at a social function that he did not select Darpak because he thought a Christian manager could make better personal connections with the firm’s clients, many of whom are Christian. The vice president’s statement, combined with the lack of any legitimate non-discriminatory reason for selecting the less qualified candidate, as well as the evidence that Darpak was the best qualified candidate for the position, suggests that the proffered reason was a pretext for discrimination against Darpak because of his religious views.

2. Discipline and Discharge

Title VII also prohibits employers from disciplining or discharging employees because of their religion.

EXAMPLE 11
Discipline

Joanne, a retail store clerk, is frequently 10-15 minutes late for her shift on several days per week when she attends Mass at a Catholic Church across town. Her manager, Donald, has never disciplined her for this tardiness, and instead filled in for her at the cash register until she arrived, stating that he understood her situation. On the other hand, Yusef, a newly hired clerk who is Muslim, is disciplined by Donald for arriving 10 minutes late for his shift even though Donald knows it is due to his attendance at services at the local Mosque. While Donald can require all similarly situated employees to be punctual, he is engaging in disparate treatment based on religion by disciplining only Yusef and not Joanne absent a legitimate nondiscriminatory reason for treating them differently.

A charge alleging the above facts might also present a claim for denial of reasonable accommodation. While the employer may require employees to be punctual, it may have to accommodate an employee who seeks leave or a schedule change to resolve the conflict between religious services and a work schedule, unless the accommodation would pose an undue hardship.

3. Compensation and Other Terms, Conditions, or Privileges of Employment

Title VII prohibits discrimination on a protected basis “with respect to . . . compensation, terms, conditions, or privileges of employment,” for example, setting or adjusting wages, granting benefits, and/or providing leave in a discriminatory fashion.

EXAMPLE 12
Wages and Benefits

Janet, who practices Native American spirituality, is a newly hired social worker for an agency. As a benefit to its employees, the agency provides tuition reimbursement for professional continuing education courses offered by selected providers. Janet applied for tuition reimbursement for an approved course that was within permitted cost limit. Janet’s supervisor denied her request for tuition reimbursement, stating that since Janet believes in “voodoo” she “won’t make a very good caseworker.” By refusing, because of Janet’s religious beliefs, to provide the tuition reimbursement to which Janet was otherwise entitled as a benefit of her employment, Janet’s supervisor has discriminated against Janet on the basis of religion.

Title VII’s prohibition on disparate treatment based on religious beliefs also can apply to disparate treatment of religious expression in the workplace.

EXAMPLE 13
Religious Expression

Eve is a secretary who displays a Bible on her desk at work. Xavier, a secretary in the same workplace, begins displaying a Quran on his desk at work. Their supervisor allows Eve to retain the Bible but directs Xavier to put the Quran out of view because, he states, 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 differential treatment of similarly situated employees with respect to the display of a religious item at work constitutes disparate treatment based on religion in violation of Title VII.

Charges involving religious expression may present claims not only of disparate treatment, but also of harassment and/or denial of reasonable accommodation. Investigation of claims of harassment and denial of reasonable accommodation are addressed respectively in §§ III and IV of this document. As discussed in greater detail in those sections, Title VII requires employers to accommodate expression that is based on a sincerely held religious practice or belief, unless it threatens to constitute harassment or otherwise poses an undue hardship on the conduct of the business. Thus, for example, an employer can restrict religious expression where it would cause customers or co-workers reasonably to perceive the materials to express the employer’s own message, or where the item or message in question is harassing or otherwise disruptive. For further discussion of how to analyze when accommodation of religious expression would pose an undue hardship, refer to the sections on Harassment at § III-C and Accommodation at § IV-C-6.

B. Customer Preference

If an employer takes an action based on the discriminatory preferences of others, including co-workers or clients, the employer is unlawfully discriminating.

EXAMPLE 14
Employment Decision Based on Customer Preference

Harinder, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Harinder begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When he inquires, the crew complains that Harinder, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the September 11^th attacks. The manager tells Harinder that he has to let him go because the customers’ discomfort is understandable. The manager has subjected Harinder to unlawful religious discrimination by taking an adverse action based on customers’ preference not to have a cashier of Harinder’s perceived religion. Harinder’s termination based on customer preference would violate Title VII regardless of whether he was Muslim, Sikh, or any other religion.

C. Security Requirements

In general, an employer may adopt security requirements for its employees or applicants, provided they are adopted for nondiscriminatory reasons and are applied in a nondiscriminatory manner. For example, an employer may not require Muslim applicants to undergo a background investigation or more extensive security procedures because of their religion while not imposing the same requirements on similarly situated applicants who are non-Muslim, unless such job requirements are imposed by federal statute or Executive Order in the interest of national security.

D. Bona Fide Occupational Qualification

Title VII permits employers to hire and employ employees on the basis of religion if religion is “a bona fide occupational qualification [“BFOQ”] reasonably necessary to the normal operation of that particular business or enterprise.” Religious organizations do not typically need to rely on this BFOQ defense, however, because the “religious organization” exception in Title VII permits them to prefer their co-religionists. See supra § I-C. It is well settled that for employers that are not religious organizations and therefore seek to rely on the BFOQ defense to justify a religious preference, the defense is a narrow one and can rarely be successfully invoked.

· Employer Best Practices ·

Employers can reduce the risk of discriminatory employment decisions by establishing written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates.
In conducting job interviews, employers can ensure nondiscriminatory treatment by asking the same questions of all applicants for a particular job or category of job and inquiring about matters directly related to the position in question.
Employers can reduce the risk of religious discrimination claims by carefully and timely recording the accurate business reasons for disciplinary or performance‑related actions and sharing these reasons with the affected employees.
When management decisions require the exercise of subjective judgment, employers can reduce the risk of discriminatory decisions by providing training to inexperienced managers and encouraging them to consult with more experienced managers or human resources personnel when addressing difficult issues.
If an employer is confronted with customer biases, e.g., an adverse reaction to being served by an employee due to religious garb, the employer should consider engaging with and educating the customers regarding any misperceptions they may have and/or the equal employment opportunity laws.

12-III HARASSMENT

Overview: Religious harassment is analyzed and proved in the same manner as harassment on other Title VII bases, e.g., race, color, sex, or national origin. However, the facts of religious harassment cases may present unique considerations, especially where the alleged harassment is based on another employee’s religious practices – a situation that may require an employer to reconcile its dual obligations to take prompt remedial action in response to alleged harassment and to accommodate certain employee religious expression.

A. Prohibited Conduct

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 may 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.

1. Religious Coercion That Constitutes a Tangible Employment Action

Title VII is violated when an employer or supervisor explicitly or implicitly coerces an employee to abandon, alter, or adopt a religious practice as a condition of receiving a job benefit or avoiding an adverse action.

EXAMPLE 15
Religious Conformance Required for Promotion

Wamiq was raised as a Muslim but no longer practices Islam. His supervisor, Arif, is a very devout Muslim who tries to persuade Wamiq not to abandon Islam and advises him to follow the teachings of the Quran. Arif also says that if Wamiq expects to advance in the company, he should join Arif and other Muslims for weekly prayer sessions in Arif’s office. Notwithstanding this pressure to conform his religious practices in order to be promoted, Wamiq refused to attend the weekly prayer sessions, and was subsequently denied the promotion for which he applies even though he was the most qualified. Arif’s conduct indicates that the promotion would have been granted if Wamiq had participated in the prayer sessions and had become an observant Muslim. Absent contrary evidence, the employer will be liable for harassment for conditioning Wamiq’s promotion on his adherence to Arif’s views of appropriate religious practice. This would also be actionable as disparate treatment based on religion. In addition, if the prayer sessions were made mandatory and Wamiq had asked to be excused on religious grounds, Arif would have been required to excuse him from the prayer sessions as a reasonable accommodation.

A claim of harassment based on coerced religious participation or non-participation, however, only arises where it was intended to make the employee conform to or abandon a religious belief or practice. By contrast, an employer would not be engaging in coercion if it required an employee to participate in a workplace activity that conflicts with the employee’s sincerely held religious belief, so long as the employer demonstrates that it would impose an undue hardship to accommodate the employee’s request to be excused. However, the same fact pattern may give rise to claims of disparate treatment, harassment, and/or denial of accommodation. For example, terminating rather than accommodating an employee may give rise to both denial of accommodation and discriminatory discharge claims. For discussion of the accommodation issue, see § IV, infra.

2. Hostile Work Environment

Title VII’s prohibition against religious discrimination can also be violated if the employee is subjected to a hostile work environment because of religion. An unlawful hostile environment based on religion might take the form of either verbal or physical harassment or unwelcome imposition of religious views or practices on an employee. A hostile work environment is created when the “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” To establish a case of religious harassment, an employee must show that the harassment was: (1) based on his religion; (2) unwelcome; (3) sufficiently severe or pervasive to alter the conditions of employment by creating an intimidating, hostile, or offensive work environment; and, (4) that there is a basis for employer liability.

a. Based on Religion

To support a religious harassment claim, the adverse treatment must be based on religion. This standard can be satisfied regardless of whether the harassment is motivated by the religious belief or observance – or lack thereof – of either the harasser or the targeted employee. Moreover, while verbally harassing conduct clearly is based on religion if it has religious content, harassment can also be based on religion even if religion is not explicitly mentioned.

EXAMPLE 16
Harassing Conduct Based on Religion – Religion Mentioned

Mohammed is an Indian-born Muslim employed at a car dealership. Because he takes scheduled prayer breaks during the work day and observes Muslim dietary restrictions, his co-workers are aware of his religious beliefs. Upset about the 9/11 terrorist attacks, his co-workers and managers began making mocking comments about his religious dietary restrictions and need to pray during the workday. They repeatedly referred to him as “Taliban” or “Arab” and asked him “why don’t you just go back where you came from since you believe what you believe?” When Mohammed questioned why it was mandatory for all employees to attend a United Way meeting, his supervisor said: “This is America. That’s the way things work over here. This is not the Islamic country where you come from.” After this confrontation, the supervisor issued Mohammed a written warning stating that he “was acting like a Muslim extremist” and that the supervisor could not work with him because of his “militant stance.” This harassment is “based on” religion and national origin.

EXAMPLE 17
Harassing Conduct Based on Religion – Religion Not Mentioned

Shoshanna is a Seventh-day Adventist whose work schedule was adjusted to accommodate her Sabbath observance, which begins at sundown each Friday. When Nicholas, the new head of Shoshanna’s department, was informed that he must accommodate her, he told a colleague that “anybody who cannot work regular hours should work elsewhere.” Nicholas then moved the regular Monday morning staff meetings to late Friday afternoon, repeatedly scheduled staff and client meetings on Friday afternoons, and often marked Shoshanna AWOL when she was not scheduled to work. In addition, Nicholas treated her differently than her colleagues by, for example, denying her training opportunities and loudly berating her with little or no provocation. Although Nicholas did not mention Shoshanna’s religion, the evidence shows that his conduct was because of Shoshanna’s need for religious accommodation, and therefore was “based on” religion.

b. Unwelcome

To be unlawful, harassing conduct must be unwelcome. Conduct is “unwelcome” when the employee did not solicit or incite it and regards it as undesirable or offensive. It is necessary to evaluate all of the surrounding circumstances to determine whether or not particular conduct or remarks are unwelcome. For example, where an employee is upset by repeated mocking use of derogatory terms or comments about his religious beliefs or observance by a colleague, it may be evident that the conduct is unwelcome. This would stand in stark contrast to a situation where the same two employees were engaged in a consensual conversation that involves a spirited debate of religious views, and neither employee indicates that he was upset by it.

The distinction between welcome and unwelcome conduct is especially important in the religious context in situations involving proselytizing of employees who have not invited such conduct. Where a religious employee attempts to persuade a non-religious employee of the correctness of his belief, or vice versa, the conduct may or may not be welcome. When an employee objects to particular religious expression, unwelcomeness is evident.

EXAMPLE 18
Unwelcome Conduct

Beth’s colleague, Bill, repeatedly talked to her at work about her prospects for salvation. For several months, she did not object and discussed the matter with him. When he persisted even after she told him that he had “crossed the line” and should stop having non-work related conversations with her, the conduct was clearly unwelcome.

c. Severe or Pervasive

Even unwelcome religiously motivated conduct is not unlawful unless “the victim . . . subjectively perceive[s] the environment to be abusive” and the conduct is “severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive.” Whether a reasonable person would perceive the conduct as abusive turns on common sense and context, looking at the totality of the circumstances. Relevant factors include whether the conduct was abusive, derogatory, or offensive; whether the conduct was frequent; and whether the conduct was humiliating or physically threatening.

EXAMPLE 19
Reasonable Person Perceives Conduct To Be Hostile

Although he hired employees of all religions, the Director of “Get Drug Free Today” required employees to sign a statement that they would support the values of the Church of Scientology. He regularly chastised those whose conduct did not conform to those values. A reasonable person would perceive this to be a religiously hostile work environment.

To “alter the conditions of employment,” conduct need not cause economic or psychological harm. It need not impair work performance, discourage employees from remaining on the job, or impede their advancement. The presence of one or more of those factors would buttress the claim, but is not required.

However, Title VII is not a general civility code, and does not render all insensitive or offensive comments, petty slights, and annoyances illegal. Offhand or isolated incidents (unless extremely serious) will not rise to the level of illegality.

EXAMPLE 20
Insensitive Comments Not Enough To Constitute Hostile Environment

Marvin is an Orthodox Jew who was hired as a radio show host. When he started work, a co-worker, Stacy, pointed to his yarmulke and asked, “Will your headset fit over that?” On a few occasions, Stacy, made other remarks about the yarmulke, such as: “Nice hat. Is that a beanie?” and “Do they come in different colors?” Although the co-worker’s comments about his yarmulke were insensitive, they were not sufficiently severe or pervasive to create a hostile work environment for Marvin.

EXAMPLE 21
Isolated Comments Not Enough to Constitute Hostile Environment

Bob, a supervisor, occasionally allowed spontaneous and voluntary prayers by employees during office meetings. During one meeting, he referenced Bible passages related to “slothfulness” and “work ethics.” Amy complained that Bob’s comments and the few instances of allowing voluntary prayers during office meetings created a hostile environment. The comments do not create an actionable harassment claim. They were not severe, and because they occurred infrequently, they were not sufficiently pervasive to state a claim.

The severity and pervasiveness factors operate inversely. The more severe the harassment, the less frequently the incidents need to recur. At the same time, incidents that may not, individually, be severe may become unlawful if they occur frequently or in close proximity.

Although a single incident will seldom create an unlawfully hostile environment, it may do so if it is unusually severe, particularly if it involves physical threat.

EXAMPLE 22
One Instance of Physically Threatening Conduct Is Enough to Constitute Hostile Environment

Ihsaan is a Muslim. Shortly after the terrorist attacks on September 11, 2001, Ihsaan came to work and found the words “You terrorists go back where you came from! We will avenge the victims!! Your life is next!” scrawled in red marker on his office door. Because of the timing of the statement and the direct physical threat, this incident, alone, is sufficiently severe to constitute hostile environment harassment based on religion and national origin.

EXAMPLE 23
Persistent Offensive Remarks Constitute Hostile Environment

Betty is a Mormon. During a disagreement regarding a joint project, a co-worker, Julian, tells Betty that she doesn’t know what she is talking about and that she should “go back to Salt Lake City.” When Betty subsequently proposes a different approach to the project, Julian tells her that her suggestions are as “flaky” as he would expect from “her kind.” When Betty tries to resolve the conflict, Julian tells her that if she is uncomfortable working with him, she can either ask to be transferred, or she can “just pray about it.” Over the next six months, Julian regularly makes similar negative references to Betty’s religion. His persistent offensive remarks create a hostile environment.

Religious expression that is repeatedly directed at an employee can become severe or pervasive, whether or not the content is intended to be insulting or abusive. Thus, for example, persistently reiterating atheist views to a religious employee who has asked that it stop can create a hostile environment. However, the extent to which the expression is directed at a particular employee is relevant to determining whether or when it could reasonably be perceived to be severe or pervasive by that employee. For example, although it is conceivable that one employee may allege that he is offended by a colleague’s wearing of religious garb, expressing one’s religion by wearing religious garb is not religious harassment. It merely expresses an individual’s religious affiliation and does not demean other religious views. As such, it is not objectively hostile. Nor is it directed at any particular individual. Similarly, workplace displays of religious artifacts or posters that do not demean other religious views generally would not constitute religious harassment.

EXAMPLE 24
No Hostile Environment from Comments That Are Not Abusive and Not Directed at Complaining Employee

While eating lunch in the company cafeteria, Clarence often overhears conversations between his co-workers Dharma and Khema. Dharma, a Buddhist, is discussing meditation techniques with Khema, who is interested in Buddhism. Clarence strongly believes that meditation is an occult practice that leads to devil worship and complains to their supervisor that Dharma and Khema are creating a hostile environment for him. Such conversations do not constitute severe or pervasive religious harassment of Clarence because they do not insult other religions and they were not directed at him.

Rachel, who worked as a ticket agent at a sports arena, asked not to be scheduled for any Friday night or Saturday shifts, to permit her to observe the Jewish Sabbath from sunset on Friday through sunset on Saturday. The arena wanted to give Rachel only every other Saturday off. The arena’s proposed accommodation is not reasonable because it does not fully eliminate the religious conflict. The arena may deny the accommodation request only if giving Rachel every Saturday off poses an undue hardship for the arena.

Ultimately, reasonableness is a fact-specific determination. “The reasonableness of an employer’s attempt at accommodation cannot be determined in a vacuum. Instead, it must be determined on a case‑by‑case basis; what may be a reasonable accommodation for one employee may not be reasonable for another . . . . �The term �reasonable accommodation’ is a relative term and cannot be given a hard and fast meaning; each case . . . necessarily depends upon its own facts and circumstances, and comes down to a determination of �reasonableness’ under the unique circumstances of the individual employer-employee relationship.'”

B. Employer Liability

Overview: An employer is always liable for a supervisor’s harassment if it results in a tangible employment action. However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements: (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. In cases of harassment by a co-worker or a third party over whom the employer had some control, an employer is liable if it knew or should have known about the harassment and failed to take immediate and appropriate corrective action.

1. Harassment by Supervisors or Managers

Employers are automatically liable for supervisory harassment that results in a tangible employment action such as a denial of promotion, demotion, discharge, or constructive discharge. If the harassment does not result in a tangible employment action, the employer can attempt to prove, as an affirmative defense to liability, that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

EXAMPLE 25
Supervisory Harassment with Tangible Employment Action

George, a high level official in a state agency, is an atheist who has frequently been heard to say that he thinks anyone who is deeply religious is a zealot with his own agenda and cannot be trusted to act in the best interests of the public. George particularly ridicules Debra, a devoutly observant Jehovah’s Witness, and consistently withholds the most desirable assignments from her. He denies her request for a promotion to a more prestigious job in another division, saying that he can’t let her “spread that religious poppycock any further.” Debra files a religious harassment charge. Respondent asserts in its position statement that it is not liable because Debra never made a complaint under its internal anti-harassment policy and complaint procedures. Because the harassment culminated in a tangible employment action (failure to promote), the employer is liable for the harassment even if it has an effective anti-harassment policy, and even if Debra never complained. Additionally, the denial of promotion would be actionable as disparate treatment based on religion.

EXAMPLE 26
Supervisory Harassment Without Tangible Employment Action

Jennifer’s employer, XYZ, had an anti-harassment policy and complaint procedure that covered religious harassment. All employees were aware of it, because XYZ widely and regularly publicized it. Despite his knowledge of the policy, Jennifer’s supervisor frequently mocked her religious beliefs. When Jennifer told him that his comments bothered her, he told her that he was just kidding and she should not take everything so seriously. Jennifer never reported the problem. When one of Jennifer’s co-workers eventually reported the supervisor’s harassing conduct, the employer promptly investigated, and acted effectively to stop the supervisor’s conduct. Jennifer then filed a religious harassment charge. Because the harassment of Jennifer did not culminate in a tangible employment action, XYZ may assert as an affirmative defense that it is not liable because Jennifer failed to make a complaint under its internal anti-harassment policy and complaint procedures. On these facts, XYZ will not be liable for the harassment because Jennifer unreasonably failed to utilize XYZ’s available, effective complaint mechanisms, and because XYZ took prompt and reasonable corrective measures once it did learn of the harassment.

2. Harassment by Co-Workers

An employer is liable for harassment by co-workers where it:

knew or should have known about the harassment, and
failed to take prompt and appropriate corrective action.

EXAMPLE 27
Harassment by Co-Workers

John, who is a Christian Scientist, shares an office with Rick, a Mormon. Rick repeatedly tells John that he is practicing a false religion, and that he should study Mormon literature. Despite John’s protestations that he is very happy with his religion and has no desire to convert, Rick regularly leaves religious pamphlets on John’s desk and tries to talk to him about religion. After vainly asking Rick to stop the behavior, John complains to their immediate supervisor, who dismisses John’s complaint on the ground that Rick is a nice person who believes that he is just being helpful. If the harassment continues, the employer is liable because it knew, through the supervisor, about Rick’s harassing conduct but failed to take immediate and appropriate corrective action.

3. Harassment by Non-Employees

An employer is liable for harassment by non-employees where it:

knew or should have known about the harassment,
could control the harasser’s conduct or otherwise protect the employee, and
failed to take prompt and appropriate corrective action.

EXAMPLE 28
Harassment by a Contractor

Tristan works for XYZ, a contractor that manages Crossroads Corporation’s mail room. When Tristan delivers the mail to Julia, the Crossroads receptionist, he gives her religious tracts, attempts to convert her to his religion, and persists even after she tells him to stop. Julia reports Tristan’s conduct to her supervisor, who tells her that he cannot do anything because Tristan does not work for Crossroads. If the harassment continues, the supervisor’s failure to act will subject Crossroads to liability because Tristan’s conduct is pervasive and Crossroads refused to take preventive action within its control. Options available to Julia’s supervisor or the appropriate individual in the supervisor’s chain of command might include initiating a meeting with Tristan and XYZ management regarding the harassment and demanding that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different mail carrier be assigned to Julia’s route.

C. Special Considerations for Employers When Balancing Anti-Harassment and Accommodation Obligations With Respect to Religious Expression

While some employees believe that religion is intensely personal and private, others are open about their religion. There are employees who may believe that they have a religious obligation to share their views and to try to persuade co-workers of the truth of their religious beliefs, i.e., to proselytize. Some employers, too, may wish to express their religious views and share their religion with their employees. As noted above, however, some employees may perceive proselytizing or other religious expression as unwelcome harassment based on their own religious beliefs and observances, or lack thereof. This mix of divergent beliefs and practices can give rise to conflicts requiring employers to balance the rights of employees who wish to express their religious beliefs with the rights of other employees to be free from religious harassment under the foregoing Title VII harassment standards.

As discussed in more detail in § IV-C-6 of this document, an employer never has to accommodate expression of a religious belief in the workplace where such an accommodation could potentially constitute harassment of co-workers, because that would pose an undue hardship for the employer. Therefore, while Title VII requires employers to accommodate an employee’s sincerely held religious belief in engaging in religious expression (e.g., proselytizing) in the workplace, an employer does not have to allow such expression if it imposes an undue hardship on the operation of the business. For example, it would be an undue hardship for an employer to accommodate proselytizing by an employee if it constituted potentially unlawful religious harassment of a co-worker who found it unwelcome, or if it otherwise interfered with the operation of the business.

Because employers are responsible for maintaining a nondiscriminatory work environment, they are liable for perpetrating or tolerating religious harassment of their employees. An employer can reduce the chance that employees will engage in conduct that rises to the level of unlawful harassment by implementing an anti-harassment policy and an effective procedure for reporting, investigating, and correcting harassing conduct. Even if the policy does not prevent all such conduct, it will likely limit the employer’s liability where the affected employee allows the conduct to rise to the level of illegality by failing to report it. However, Title VII violations may result if an employer tries to avoid potential co-worker objections to employee religious expression by preemptively banning all religious communications in the workplace, since Title VII requires that employees’ sincerely held religious practices and beliefs be accommodated as long as no undue hardship is posed.

· Employer Best Practices ·

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 procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.
If harassment is perpetrated by a non-employee assigned by a contractor, the supervisor or other appropriate individual in the chain of command should initiate a meeting with the contractor regarding the harassment and demand that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different individual be assigned by the contractor.
To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of objectively abusive or insulting conduct, even absent a complaint.
Employers should encourage managers to intervene proactively and discuss with subordinates whether particular religious expression is welcome if the manager believes the expression might be construed as harassing to a reasonable person.
While supervisors are permitted to engage in certain religious expression, they should avoid expression that might – due to their supervisory authority – reasonably be perceived by subordinates as coercive, even when not so intended.

· Employee Best Practices ·

Employees who are the recipients of unwelcome religious conduct should inform the individual engaging in the conduct that they wish it to stop. If the conduct does not stop, employees should report it to their supervisor or other appropriate company official in accordance with the procedures established in the company’s anti-harassment policy.
Employees who do not wish to personally confront an individual who is directing unwelcome religious or anti-religious conduct towards them should report the conduct to their supervisor or other appropriate company official in accordance with the company’s anti-harassment policy.

12-IV REASONABLE ACCOMMODATION

Overview: Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. However, the Title VII “undue hardship” defense is defined very differently than the “undue hardship” defense for disability accommodation under the Americans with Disabilities Act (ADA). 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 minimis” cost or burden, which is a far lower standard for an employer to meet than undue hardship under the ADA, which is defined in that statute as “significant difficulty or expense.”

A religious accommodation claim is distinct from a disparate treatment claim, in which the question is whether employees are treated equally. An individual alleging denial of religious accommodation is seeking an adjustment to a neutral work rule that infringes on the employee’s ability to practice his religion. The accommodation requirement is “plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others.”

A. Religious Accommodation

A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with his or her religious beliefs. However, it is subject to the limit of more than de minimis cost or burden. The need for religious accommodation most frequently arises where an individual’s religious beliefs, observances, or practices conflict with a specific task or requirement of the job or the application process. The employer’s duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement so that the employee or applicant will be able to practice his or her religion. Accommodation requests often relate to work schedules, dress and grooming, or religious expression or practice while at work.

1. Notice of the Conflict Between Religion and Work

An applicant or employee who seeks religious accommodation must make the employer aware both of the need for accommodation and that it is being requested due to a conflict between religion and work. The employee is obligated to explain the religious nature of the belief or practice at issue, and cannot assume that the employer will already know or understand it. Similarly, the employer should not assume that a request is invalid simply because it is based on religious beliefs or practices with which the employer is unfamiliar, but should ask the employee to explain the religious nature of the practice and the way in which it conflicts with a work requirement.

No “magic words” are required to place an employer on notice of an applicant’s or employee’s conflict between religious needs and a work requirement. To request an accommodation, an individual may use plain language and need not mention any particular terms such as “Title VII” or “religious accommodation.” However, the applicant or employee must provide enough information to make the employer aware that there exists a conflict between the individual’s religious practice or belief and a requirement for applying for or performing the job.

EXAMPLE 29
Failure to Advise Employer That Request Is Due to Religious Practice or Belief

Jim agreed to take his employer’s drug test but was terminated because he refused to sign the accompanying consent form. After his termination, Jim filed a charge alleging that the employer failed to accommodate his religious objection to swearing an oath. Until it received notice of the charge, the employer did not know that Jim’s refusal to sign the form was based on his religious beliefs. Because the employer was not notified of the conflict at the time Jim refused to sign the form, or at any time prior to Jim’s termination, it did not have an opportunity to offer to accommodate him. The employer has not violated Title VII.

2. Discussion of Request

While an employer is not required by Title VII to conduct a discussion with an employee before denying the employee’s accommodation request, as a practical matter it can be important to do so. Both the employer and the employee have roles to play in resolving an accommodation request. In addition to placing the employer on notice of the need for accommodation, the employee should cooperate with the employer’s efforts to determine whether a reasonable accommodation can be granted. Once the employer becomes aware of the employee’s religious conflict, the employer should obtain promptly whatever additional information is needed to determine whether an accommodation is available that would eliminate the religious conflict without posing an undue hardship on the operation of the employer’s business. This typically involves the employer and employee mutually sharing information necessary to process the accommodation request. Employer‑employee cooperation and flexibility are key to the search for a reasonable accommodation. If the accommodation solution is not immediately apparent, the employer should discuss the request with the employee to determine what accommodations might be effective. If the employer requests additional information reasonably needed to evaluate the request, the employee should provide it.

Failure to confer with the employee is not an independent violation of Title VII but, as a practical matter, such failure can have adverse legal consequences for both an employee and an employer. For example, in some cases where an employer has made no effort to act on an accommodation request, courts have found that the employer lacked the evidence needed to meet its burden of proof to establish that the plaintiff’s proposed accommodation would actually have posed an undue hardship. Likewise, courts have ruled against employees who refused to cooperate with an employer’s requests for reasonable information when, as a result, the employer was deprived of the information necessary to resolve the accommodation request. For example, if an employee requested a schedule change to accommodate daily prayers, the employer might need to ask for information about the religious observance, such as time and duration of the daily prayers, in order to determine if accommodation can be granted without posing an undue hardship on the operation of the employer’s business. Moreover, even if the employer does not grant the employee’s preferred accommodation but instead provides an alternative accommodation, the employee must cooperate by attempting to meet his religious needs through the employer’s proposed accommodation if possible.

Where the accommodation request itself does not provide enough information to enable the employer to make a determination, and the employer has a bona fide doubt as to the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and that the belief or practice gives rise to the need for the accommodation. See “Sincerely Held” and “Employer Inquiries into Religious Nature or Sincerity of Belief,” supra §§ I-A-2 and I-A-3. Whether an employer has a reasonable basis for seeking to verify the employee’s stated beliefs will depend on the facts of a particular case.

EXAMPLE 30
Sincerity of Religious Belief Questioned

Bob, who had been a dues-paying member of the CDF union for fourteen years, had a work-related dispute with a union official and one week later asserted that union activities were contrary to his religion and that he could no longer pay union dues. The union doubted whether Bob’s request was based on a sincerely held religious belief, given that it appeared to be precipitated by an unrelated dispute with the union, and he had not sought this accommodation in his prior fourteen years of employment. In this situation, the union can require him to provide additional information to support his assertion that he sincerely holds a religious conviction that precludes him from belonging to – or financially supporting – a union.

When an employer requests additional information, employees should provide information that addresses the employer’s reasonable doubts. That information need not, however, take any specific form. For example, written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief such that third-party verification is unnecessary. Further, since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a church official or member, but rather could be provided by others who are aware of the employee’s religious practice or belief.

An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation. By the same token, employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.

It also is important to remember that even if an employer concludes that an individual’s professed belief is sincerely held and religious, it is only required to grant those requests for accommodation that do not pose an undue hardship on the conduct of its business.

EXAMPLE 31
Clarifying a Request

Diane requests that her employer schedule her for “fewer hours” so that she can “attend church more frequently.” The employer denies the request because it is not clear what schedule Diane is requesting or whether the change is sought due to a religious belief or practice. While Diane’s request lacked sufficient detail for the employer to make a final decision, it was sufficient to constitute a religious accommodation request. Rather than denying the request outright, the employer should have obtained the information from Diane that it needed to make a decision. The employer could have inquired of Diane precisely what schedule change was sought and for what purpose, and how her current schedule conflicted with her religious practices or beliefs. Diane would then have had an obligation to provide sufficient information to permit her employer to make a reasonable assessment of whether her request was based on a sincerely held religious belief, the precise conflict that existed between her work schedule and church schedule, and whether granting the accommodation would pose more than a de minimis burden on the employer’s business.

3. What is a “Reasonable” Accommodation?

Although an employer never has to provide an accommodation that would pose an undue hardship, see infra § IV-B, the accommodation that is provided must be a reasonable one. An accommodation is not “reasonable” if it merely lessens rather than eliminates the conflict between religion and work, provided eliminating the conflict would not impose an undue hardship. Eliminating the conflict between a work rule and an employee’s religious belief, practice, or observance means accommodating the employee without unnecessarily disadvantaging the employee’s terms, conditions, or privileges of employment.

Where there is more than one reasonable accommodation that would not pose an undue hardship, the employer is not obliged to provide the accommodation preferred by the employee. However, an employer’s proposed accommodation will not be “reasonable” if a more favorable accommodation is provided to other employees for non-religious purposes, or, for example, if it requires the employee to accept a reduction in pay rate or some other loss of a benefit or privilege of employment and there is an alternative accommodation that does not do so.

EXAMPLE 32
Employer Violates Title VII if it Offers Only Partial Accommodation Where Full Accommodation Would Not Pose an Undue Hardship

EXAMPLE 33
Employer Not Obligated To Provide Employee’s Preferred Accommodation

Tina, a newly hired part-time store cashier whose sincerely held religious belief is that she should refrain from work on Sunday as part of her Sabbath observance, asked her supervisor never to schedule her to work on Sundays. Tina specifically asked to be scheduled to work Saturdays instead. In response, her employer offered to allow her to work on Thursday, which she found inconvenient because she takes a college class on that day. Even if Tina preferred a different schedule, the employer is not required to grant Tina’s preferred accommodation.

EXAMPLE 34
Accommodation By Transfer Where Accommodation in Current Position Would Pose Undue Hardship

Yvonne, a member of the Pentecostal faith, was employed as a nurse at a hospital. When she was assigned to the Labor and Delivery Unit, she advised the nurse manager that her faith forbids her from participating “directly or indirectly in ending a life,” and that this proscription prevents her from assisting with abortions. She asked the hospital to accommodate her religious beliefs by allowing her to trade assignments with other nurses in the Labor and Delivery Unit as needed. The hospital concluded that it could not accommodate Yvonne within the Labor and Delivery Unit because there were not enough staff members able and willing to trade with her. The hospital instead offered to permit Yvonne to transfer, without a reduction in pay or benefits, to a vacant nursing position in the Newborn Intensive Care Unit, which did not perform any such procedures. The hospital’s solution complies with Title VII. The hospital is not required to grant Yvonne’s preferred accommodation where it has offered a reasonable alternative solution that eliminates the conflict between work and a religious practice or belief under its existing policies and procedures. If there had been no other position to which she could transfer, the employer would have been entitled to terminate her since it would pose an undue hardship to accommodate her in the Labor and Delivery Unit.

Title VII is violated by an employer’s failure to accommodate even if to avoid adverse consequences an employee continues to work after his accommodation request is denied. “An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.” Thus, the fact that an employee acquiesces to the employer’s work rule, continuing to work without an accommodation after the employer has denied the request, should not defeat the employee’s legal claim.

In addition, the obligation to provide reasonable accommodation absent undue hardship is a continuing obligation. Employers should be aware that an employee’s religious beliefs and practices may evolve over time, and that this may result in requests for additional or different accommodations. Similarly, the employer has the right to discontinue a previously granted accommodation that is no longer utilized for religious purposes or poses an undue hardship.

B. Undue Hardship

An employer can refuse to provide a reasonable accommodation if it would pose an undue hardship. Undue hardship may be shown if the accommodation would impose “more than de minimis cost” on the operation of the employer’s business. The concept of “more than de minimis cost” is discussed below in sub-section 2. Although the employer’s showing of undue hardship under Title VII is easier than under the ADA, the burden of persuasion is still on the employer. If an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.

1. Case-by-Case Determination

The determination of whether a particular proposed accommodation imposes an undue hardship “must be made by considering the particular factual context of each case.” Relevant factors may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation. For example, an employer with multiple facilities might be better able than another employer to accommodate a Muslim employee who seeks a transfer to a location with a nearby mosque that he can attend during his lunch break.

To prove undue hardship, the employer will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information. A mere assumption that many more people with the same religious practices as the individual being accommodated may also seek accommodation is not evidence of undue hardship. The determination of whether a proposed accommodation would pose an undue hardship is based on concrete, fact-specific considerations.

2. More than “De Minimis” Cost

To establish undue hardship, the employer must demonstrate that the accommodation would require more than de minimis cost.Factors to be considered are “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.” Generally, the payment of administrative costs necessary for an accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes or infrequent or temporary payment of premium wages (e.g., overtime rates) while a more permanent accommodation is sought, will not constitute more than de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally cause an undue hardship to the employer. “[T]he Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”

Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.

EXAMPLE 35
Religious Need Can Be Accommodated

David wears long hair pursuant to his Native American religious beliefs. David applies for a job as a server at a restaurant which requires its male employees to wear their hair “short and neat.” When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs, and offers to wear it in a pony tail or held up with a clip. The manager refuses this accommodation, and denies David the position based on his long hair. Since the evidence indicated that David could have been accommodated, without undue hardship, by wearing his hair in a ponytail or held up with a clip, the employer will be liable for denial of reasonable accommodation and discriminatory failure to hire.

EXAMPLE 36
Safety Risk Poses Undue Hardship

Patricia alleges she was terminated from her job as a steel mill laborer because of her religion (Pentecostal) after she notified her supervisor that her faith prohibits her from wearing pants, as required by the mill’s dress code, and requested as an accommodation to be permitted to wear a skirt. Management contends that the dress code is essential to the safe and efficient operation of the mill, and has evidence that it was imposed following several accidents in which skirts worn by employees were caught in the same type of mill machinery that Patricia operates. Because the evidence establishes that wearing pants is truly necessary for safety reasons, the accommodation requested by Patricia poses an undue hardship.

3. Seniority Systems and Collectively Bargained Rights

A proposed religious accommodation poses an undue hardship if it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement (CBA). Of course, the mere existence of a seniority system or CBA does not relieve the employer of the duty to attempt reasonable accommodation of its employees’ religious practices; the question is whether an accommodation can be provided without violating the seniority system or CBA. Allowing voluntary substitutes and swaps does not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system or CBA.

EXAMPLE 37
Schedules Based on a Seniority System or Collectively Bargained Rights

Susan, an employee of QRS Corp., asks not to work on her Sabbath. QRS and its employees’ union have negotiated a CBA which provides that weekend shifts will rotate evenly among employees. If Susan can find qualified co-workers voluntarily willing to swap shifts to accommodate her sincerely held religious beliefs, the employer could be found liable for denial of reasonable accommodation if it refuses to permit the swap to occur. The existence of the collectively bargained system for determining weekend shifts should not result in the denial of accommodation if a voluntary swap can be arranged by the employee without violating the system or otherwise posing an undue hardship. The result would be the same if QRS had a unilaterally imposed seniority system (rather than a CBA) pursuant to which weekend shifts are determined.

However, if other employees were unwilling to swap shifts or were otherwise harmed by not requiring Susan to work on the shift in question, or the employer would be subject to other operational costs that were more than de minimis by allowing Susan to swap shifts, then the employer can demonstrate undue hardship.

4. Co-worker Complaints

Although infringing on co-workers’ ability to perform their duties or subjecting co-workers to a hostile work environment will generally constitute undue hardship, the general disgruntlement, resentment, or jealousy of co-workers will not. Undue hardship requires more than proof that some co-workers complained; a showing of undue hardship based on co-worker interests generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work. See also §§ III-C and IV-C-6 (discussing specifically complaints regarding proselytizing and other forms of religious expression), infra.

5. Security Considerations

If a religious practice actually conflicts with a legally mandated federal, state, or local security requirement, an employer need not accommodate the practice because doing so would create an undue hardship. If a security requirement has been unilaterally imposed by the employer and is not required by law or regulation, the employer will need to decide whether it would be an undue hardship to modify or eliminate the requirement to accommodate an employee who has a religious conflict.

EXAMPLE 38
Accommodation Implicating Security Concerns

Patrick is employed as a correctional officer at a state prison, and his brother William is employed as a grocery store manager. Both Patrick and William seek permission from their respective employers to wear a fez at work as an act of faith on a particular holy day as part of their religious expression. Both employers deny the request, citing a uniformly applied workplace policy prohibiting employees from wearing any type of head covering. The prison’s policy is based on security concerns that head coverings may be used to conceal drugs, weapons, or other contraband, and may spark internal violence among prisoners. The grocery store’s policy is based on a stated desire that all employees wear uniform clothing so that they can be readily identified by customers. If both brothers file EEOC charges challenging the denial of their accommodation requests, Patrick will likely not prevail because the prison’s denial of his request was based on legitimate security considerations posed by the particular religious garb sought to be worn. William will likely prevail because there is no indication it would pose an undue hardship for the grocery store to modify its policy with respect to his request.

EXAMPLE 39
Kirpan

Harvinder, a baptized Sikh who works in a hospital, wears a small (4-inch), dull and sheathed kirpan (miniature sword) strapped and hidden underneath her clothing, as a symbol of her religious commitment to defend truth and moral values. When Harvinder’s supervisor, Bill, learned about her kirpan from a co-worker, he instructed Harvinder not to wear it at work because it violated the hospital policy against weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh Code of Conduct, and gave him literature explaining that the kirpan is a religious artifact, not a weapon. She also showed him the kirpan, allowing him to see that it was no sharper than butter knives found in the hospital cafeteria. Nevertheless, Bill told her that she would be terminated if she continued to wear the kirpan at work. Absent any evidence that allowing Harvinder to wear the kirpan would pose an undue hardship in the factual circumstances of this case, the hospital is liable for denial of accommodation.

C. Common Methods of Accommodation in the Workplace

Under Title VII, an employer or other covered entity may use a variety of methods to provide reasonable accommodations to its employees. The most common methods are: (1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfer and/or change of job assignment; and, (4) modifying workplace practices, policies, and/or procedures.

1. Scheduling Changes

An employer may be able to reasonably accommodate an employee by allowing flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunch time in exchange for early departure, staggered work hours, and other means to enable an employee to make up time lost due to the observance of religious practices. However, EEOC’s position is that it will be insufficient merely to eliminate part of the conflict, unless eliminating the conflict in its entirety will pose an undue hardship by disrupting business operations or impinging on other employees’ benefits or settled expectations.

EXAMPLE 40
Break Schedules/Prayer at Work

Rashid, a janitor, tells his employer on his first day of work that he practices Islam and will need to pray at several prescribed times during the workday in order to adhere to his religious practice of praying at five specified times each day, for several minutes, with hand washing beforehand. The employer objects because its written policy allows one fifteen-minute break in the middle of each morning and afternoon. Rashid’s requested change in break schedule will not exceed the 30 minutes of total break time otherwise allotted, nor will it affect his ability to perform his duties or otherwise cause an undue hardship for his employer. Thus, Rashid is entitled to accommodation.

EXAMPLE 41
Blanket Policies Prohibiting Time Off for Religious Observance

A large employer operating a fleet of buses had a policy of refusing to accept driver applications unless the applicant agreed that he or she was available to be scheduled to work any shift, seven days a week. This policy violates Title VII to the extent that it discriminates against applicants who refrain from work on certain days for religious reasons, by failing to allow for the provision of religious accommodation absent undue hardship.

2. Voluntary Substitutes and Shift Swaps

Although it would pose an undue hardship to require employees involuntarily to substitute for one another or swap shifts, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available, either for a single absence or an extended period of time. The employer’s obligation is to make a good faith effort to allow voluntary substitutions and shift swaps, under circumstances which do not discourage employees from substituting for one another or trading shifts to accommodate a religious conflict. However, if the employer is on notice that the employee’s religious beliefs preclude him not only from working on his Sabbath but also from inducing others to do so, reasonable accommodation requires more than merely permitting the employee to swap. Nevertheless, an employer does not have to permit a substitute or swap if it would pose more than de minimis cost or burden to business operations. As noted above, if a swap or substitution would result in the employer having to pay premium wages (such as overtime pay), the frequency of the arrangement will be relevant to determining if it poses an undue hardship; “the Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”

An employer may have to make an exception to its scheduling policies, procedures, or practices in order to grant religious accommodation. For example, if it does not pose an undue hardship, an employer must make an exception to its policy of requiring all employees, regardless of seniority, to work an “equal number of weekend, holiday, and night shifts,” and instead permit voluntary shift swaps between qualified co-workers in order to accommodate a particular employee’s sincerely held religious belief that he should not work on the Sabbath. Of course, if allowing a swap or other accommodation would not provide the coverage the employer needs for its business operations or otherwise pose an undue hardship, the accommodation does not have to be granted.

3. Change of Job Tasks and Lateral Transfer

When an employee’s religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee’s religion. Whether or not 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 CBA or seniority system.

EXAMPLE 42
Restaurant Server Excused from Singing Happy Birthday

Kim, a server at a restaurant, informed her manager that she would not be able to join other waitresses in singing “Happy Birthday” to customers because she is a Jehovah’s Witness whose religious beliefs do not allow her to celebrate holidays, including birthdays. There were enough servers on duty at any given time to perform this singing without affecting service. The manager refused any accommodation. If Kim files a Title VII charge alleging denial of religious accommodation, she will prevail because the restaurant could have accommodated her with little or no expense or disruption.

EXAMPLE 43
Pharmacist Excused from Providing Contraceptives

Neil, a pharmacist, was hired by a large corporation that operates numerous large pharmacies at which more than one pharmacist is on duty during all hours of operation. Neil informed his employer that he refused on religious grounds to participate in distributing contraceptives or answering any customer inquiries about contraceptives. The employer reasonably accommodated Neil by offering to allow Neil to signal to a co-worker who would take over servicing any customer who telephoned, faxed, or came to the pharmacy regarding contraceptives.

EXAMPLE 44
Pharmacist Not Permitted to Turn Away Customers

In the above example, assume that instead of facilitating the assistance of such customers by a co-worker, Neil leaves on hold indefinitely those who call on the phone about a contraceptive rather than transferring their calls, and walks away from in-store customers who seek to fill a contraceptive prescription rather than signaling a co-worker. The employer is not required to accommodate Neil’s request to remain in such a position yet avoid all situations where he might even briefly interact with customers who have requested contraceptives, or to accommodate a disruption of business operations. The employer may discipline or terminate Neil for not meeting legitimate expectations.

The employee should be accommodated in his or her current position if doing so does not pose an undue hardship. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. For example, if a pharmacist who has a religious objection to dispensing contraceptives can be accommodated without undue hardship by allowing the pharmacist to signal a co-worker to assist customers with such prescriptions, the employer cannot choose instead to accommodate by transferring the pharmacist to a different position. Moreover, if the pharmacist cannot be accommodated within his position, the employer cannot transfer the pharmacist to a position that entails less pay, responsibility, or opportunity for advancement unless a lateral transfer is unavailable or would otherwise pose an undue hardship.

EXAMPLE 45
Lateral Transfer Versus Transfer to a Lower-Paying Position

An electrical utility lineman requests accommodation of his Sabbath observance, but because the nature of his position requires being available to handle emergency problems at any time, there is no accommodation that would permit the lineman to remain in his position without posing an undue hardship. The employer can accommodate the lineman by offering a lateral transfer to another assignment at the same pay, if available. If, however, no job at the same pay is readily available, then the employer could satisfy its obligation to reasonably accommodate the lineman by offering to transfer him to a different job, even at lower pay, if one is available.

4. Modifying Workplace Practices, Policies and Procedures

a. Dress and Grooming Standards

When an employer has a dress or grooming policy that conflicts with an employee’s religious beliefs or practices, the employee may ask for an exception to the policy as a reasonable accommodation. Religious grooming practices may relate, for example, to shaving or hair length. Religious dress may include clothes, head or face coverings, jewelry, or other items. Absent undue hardship, religious discrimination may be found where an employer fails to accommodate the employee’s religious dress or grooming practices.

EXAMPLE 46
Facial Hair

Prakash, who works for CutX, a surgical instrument manufacturer, does not shave or trim his facial hair because of his Sikh religious observance. When he seeks a promotion to manage the division responsible for sterilizing the instruments, his employer tells him that, to work in that division, he must shave or trim his beard because otherwise his beard may contaminate the sterile field. When Prakash explains that he cannot trim his beard for religious reasons, the employer offers to allow Prakash to wear two face masks instead of trimming his beard. Prakash thinks that wearing two masks is unreasonable and files a Title VII charge. CutX will prevail because it offered a reasonable accommodation that would eliminate Prakash’s religious conflict with the hygiene rule.

Some courts have concluded that it would pose an undue hardship if an employer was required to accommodate a religious dress or grooming practice that conflicts with the public image the employer wishes to convey to customers. While there may be circumstances in which allowing a particular exception to an employer’s dress and grooming policy would pose an undue hardship, an employer’s reliance on the broad rubric of “image” to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called “customer preference”) in violation of Title VII.

EXAMPLE 47
Religious Garb

Nasreen, a Muslim ticket agent for a commercial airline, wears a head scarf, or hijab, to work at the airport ticket counter. After September 11, 2001, her manager objected, telling Nasreen that the customers might think she was sympathetic to terrorist hijackers. Nasreen explains to her manager that wearing the hijab is her religious practice and continues to wear it. She is terminated for wearing it over her manager’s objection. Customer fears or prejudices do not amount to undue hardship, and the refusal to accommodate her and the termination, therefore, violate Title VII. In addition, denying Nasreen the position due to perceptions of customer preferences about religious attire would be disparate treatment based on religion in violation of Title VII, because it would be the same as refusing to hire Nasreen because she is a Muslim. See supra § II-B.

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. However, even in these situations, a case-by-case determination is advisable.

Use of Employer Facilities

If any employee needs to use a workplace facility as a reasonable accommodation, for example use of a quiet area for prayer during break time, the employer should accommodate the request under Title VII unless it would pose an undue hardship. 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.

EXAMPLE 48
Use of Employer Facilities

An employee whose assigned work area is a factory floor rather than an enclosed office asks his supervisor if he may use one of the company’s unoccupied conference rooms to pray during a scheduled break time. The supervisor must grant this request if it would not pose an undue hardship. An undue hardship would exist, for example, if the only conference room is used for work meetings at that time. However, the supervisor is not required to provide the employee with his choice of the available locations, and can meet the accommodation obligation by making any appropriate location available that would accommodate the employee’s religious needs if this can be done absent undue hardship, for example by offering an unoccupied area of the work space rather than the conference room.

c. Tests and Other Selection Procedures

An employer has an obligation to accommodate an employee or prospective employee when scheduling a test or administering other selection procedures, where the applicant has informed the employer of a sincerely held religious belief that conflicts with a pre-employment testing requirement, unless undue hardship would result. An employer may not permit an applicant’s need for a religious accommodation to affect its decision whether or not to hire the applicant unless the employer can demonstrate that it cannot reasonably accommodate the applicant’s religious practice without undue hardship.

SECTION 12: RELIGIOUS DISCRIMINATION

SECTION 12: RELIGIOUS DISCRIMINATION

OVERVIEW

12-I COVERAGE

A. Definitions

1. Religion

2. Sincerely Held

3. Employer Inquiries into Religious Nature or Sincerity of Belief

B. Covered Entities

C. Exceptions

1. Religious Organizations

2. Ministerial Exception

12-II EMPLOYMENT DECISIONS

A. General

1. Recruitment, Hiring, and Promotion

2. Discipline and Discharge

3. Compensation and Other Terms, Conditions, or Privileges of Employment

B. Customer Preference

C. Security Requirements

D. Bona Fide Occupational Qualification

12-III HARASSMENT

A. Prohibited Conduct

1. Religious Coercion That Constitutes a Tangible Employment Action

2. Hostile Work Environment

a. Based on Religion

b. Unwelcome

c. Severe or Pervasive

B. Employer Liability

1. Harassment by Supervisors or Managers

2. Harassment by Co-Workers

3. Harassment by Non-Employees

C. Special Considerations for Employers When Balancing Anti-Harassment and Accommodation Obligations With Respect to Religious Expression

12-IV REASONABLE ACCOMMODATION

A. Religious Accommodation

1. Notice of the Conflict Between Religion and Work

2. Discussion of Request

3. What is a “Reasonable” Accommodation?

B. Undue Hardship

1. Case-by-Case Determination

2. More than “De Minimis” Cost

3. Seniority Systems and Collectively Bargained Rights

4. Co-worker Complaints

5. Security Considerations

C. Common Methods of Accommodation in the Workplace

1. Scheduling Changes

2. Voluntary Substitutes and Shift Swaps

3. Change of Job Tasks and Lateral Transfer

4. Modifying Workplace Practices, Policies and Procedures

a. Dress and Grooming Standards

Use of Employer Facilities

c. Tests and Other Selection Procedures

d. Providing Social Security Numbers%3

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