EEOC Guidance Gets a Badly Needed Overhaul: The EEOC has published a proposed update to its religious discrimination guidance. A lot has happened in the legal landscape since 2008 and it seems the Commission is moving at bureaucratic warp speed to catch up. This proposed guidance is now released for public comment before crawling into final form. Don’t let the EEOC pace lull you into thinking the guidance is not important: Religious discrimination claims have been on the rise for years.
Overview of Religious Discrimination: Title VII prohibits discrimination based on an individual’s religious beliefs. These protections apply whether the religious views in question are mainstream or nontraditional, and regardless of whether they are recognized by any organized religion. The test is whether the beliefs are sincerely held and whether they are, in the individual’s own scheme of things, religious.
Similar to employees with qualifying disabilities, an employer has the obligation to provide a reasonable accommodation for religious beliefs if it is not an undue hardship. An employer does not need to provide an accommodation unless they are on notice that one is needed for religious purposes. Common accommodations include the following:
- schedule changes;
- voluntary substitutes;
- change of job tasks and lateral transfer;
- modifying workplace practices, policies and procedures, such as dress codes, use of facilities, tests and other selection procedures;
- requesting prayer, proselytizing and other forms of religious expression at the workplace.
When you receive a religious accommodation request, assume it is legitimate. If you have information or reason to believe the request is not based on a sincerely based religious belief or there is an objective basis for questioning the request, you would be justified in seeking additional supporting information. A request for opening day off at Fenway because an employee is “religious” about the Sox is an obvious no. But be careful.
For example, an employee asks for time off on October 31st to attend the New Year observance of Wicca. A supervisor would violate Title VII by refusing on the basis of Wicca not being a “real” religion. Instead, the supervisor should note whether the accommodation could be made and allow it, unless it would be an undue hardship to the business.
Religious Organizations and Exceptions to Religious Discrimination
A religious corporation is permitted to give employment preference to members of its own religion. In addition, the exemption allows religious organizations to prefer hiring individuals who share their religion, defined not by the self-identified religious affiliation of the employee, but broadly by the employer’s religious observances, practices, and beliefs.
Employers that are not religious organizations may not recruit based on a particular religion nor adopt recruitment practices, such as word-of-mouth recruitment, that have the purpose or effect of discriminating based on religion.
Best Practices: Complying with Title VII can be a hurdle for many businesses, especially when the new guidance is released in 2021. The EEOC has provided best practices for employers to put in place to prevent religious discrimination or harassment, including:
- Establish written objective criteria for evaluating candidates for hire or promotion and apply those criteria consistently to all candidates.
- Ask the same questions of all applicants for a particular job or category of job and inquire about matters directly related to the position in question.
- Record the accurate business reasons for disciplinary or performance-related actions and share these reasons with the impacted employee.
- Train inexperienced managers and encourage them to consult with more experienced managers or human resources personnel when addressing difficult issues.
- Have a well-publicized and consistently applied anti-harassment policy.
- Allow religious expression among employees to the same extent other types of acceptable personal expression is allowed.
- Immediately intervene when objectively abusive or insulting conduct, even absent a complaint, comes to light.
- Encourage managers to intervene proactively and discuss with subordinates whether particular religious expression is welcome if the manager believes the expression is likely to be construed as harassing to a reasonable person.
Religious exercise and expression in the workplace can be tricky. Questions, policies, updates–we can help.