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January 2021

U.S. Equal Employment Opportunity Commission Revises Religious Discrimination Guidance

On January 15, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) published revisions to its Compliance Manual Section on Religious Discrimination (“Manual”). The updated Manual passed by a 3-2 commissioner vote and supersedes the Commission’s Compliance Manual on Religious Discrimination issued on July 22, 2008.

Although the Manual does not have the force and effect of law, it serves as a helpful resource for employers and legal counsel.  The EEOC noted that the Manual “is intended to provide clarity to the public on existing requirements under the law and how the Commission will analyze these matters in performing its duties.”

The recently revised Manual takes into account several court decisions and legal developments since its last update in 2008, as well as emerging issues. In a press release, the EEOC said the “revisions to the guidance include important updates to the discussion of protections for employees from religious discrimination in the context of reasonable accommodations and harassment. It also expands the discussion of defenses that may be available to religious employers.”  

Definition of Religion

The Manual reiterates that “religion” is very broadly defined under Title VII, and includes “unique beliefs held by a few or even one individual[.]”  The religious belief need not seem logical or reasonable to others to receive protection under Title VII.  Similarly, the presence of a deity is not necessary to receive protection. Further, employees who do not possess any religious beliefs are also protected from discrimination based on religion or lack thereof. 

Accordingly, employees are protected from discrimination under Title VII if their beliefs, practices, or observances are “sincerely held” and it would not create an undue hardship on the employer to accommodate such religious beliefs, practices or observances. The Manual explicitly provides that “[b]ecause the definition of religion is broad and protects beliefs, observances, 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.”  However, if “an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.”

Religious Organization Exemption

The Manual explains that religious institutions are exempt from certain religious discrimination provisions.  The religious organization exemption allows “a qualifying religious organization to assert as a defense to a Title VII claim of discrimination or retaliation that it made the challenged employment decision on the basis of religion.”

Title VII’s religious organization exemption has been applied not only to churches, but also to religious schools, hospitals, and charities.  Whether or not an organization qualifies for the exemption requires a fact-specific analysis. Courts consider several factors, such as an entity’s for-profit status, whether it produces a secular product, whether the entity’s articles of incorporation states a religious purpose, whether the organization holds itself out to the public as secular or sectarian, whether the entity regularly includes prayer or other forms of worship in its activities, and whether it includes religious instruction in its curriculum, to the extent it is an educational institution.  However, the Manual clarifies that no single factor is dispositive.

The Manual has also been updated to reflect the U.S. Supreme Court’s recent decisions regarding the “ministerial exception,” which provides an affirmative defense to religious discrimination claims brought by employees of religious intuitions who perform vital religious duties at the core of the mission of the religious institution.

Reasonable Accommodations

The Manual provides that “Title VII requires an employer, once on notice, to reasonably accommodate an employee who’s sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.”  Further, although the courts are split, the EEOC’s position is that “the denial of reasonable religious accommodation absent undue hardship is actionable,” even without an additional adverse action against an employee. 

Under the Manual, common reasonable religious accommodations in the workplace include flexible scheduling, voluntary swaps of shifts and assignments, lateral transfers or changes in job assignment, or modifying workplace practices, policies, or procedures.  However, the Manual also provides that “an adjustment offered by an employer is not a ‘reasonable’ accommodation if it merely lessens rather than eliminates the conflict between religion and work, provided that eliminating the conflict would not impose an undue hardship.”  Accordingly, reasonableness is a fact-specific determination.

Undue Hardship

An employer can refuse to provide a reasonable accommodation if it would pose an undue hardship, which requires a demonstration that the accommodation would require the employer “to bear more than a de minimis cost.”  Direct monetary costs and the burden on the conduct of the employer’s business are considered.  According to the Manual, “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 coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.” 

Whether a particular proposed accommodation imposes an undue hardship is determined on a case-by-case basis.  Under the Manual, relevant factors include “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.”  Further, an employer cannot rely on assumptions or a hypothetical hardship when assessing undue hardship, but rather should rely on objective information.

To improve the accommodation process, the Manual encourages open dialogue between employers and employees.  This dialogue “typically involves the employer and employee mutually sharing information necessary to process the accommodation request.”  Although not required by Title VII, a failure to confer with the employee can lead to adverse legal consequences as a practical matter.  For instance, when employers fail to make an effort to act on an accommodation request, the Manual notes that some courts have found that the employer lacked the evidence needed to establish that the employee’s proposed accommodation would actually have posed an undue hardship.

Additionally, the updated Manual gives special attention to the issue of religious expression in the workplace, such as proselytizing.  Religious expression that disrupts the workplace can create an undue hardship, even if it does not rise to the level of harassment under Title VII.  Employers should balance the rights of employees who wish to engage in religious expression with the rights of other employees to not be harassed for their own religious beliefs or lack thereof.  The Manual advises employers to “allow religious expression among employees at least to the same extent that they allow other types of personal expression that are not harassing or disruptive to the operation of the business.” 

Finally, although the main text of the new Manual does not directly address the issue of religious accommodations for employees who object to their employers’ mandatory vaccination policies, the EEOC has issued separate guidance on the issue. 

For additional discussion of the EEOC’s guidance on COVID-19 vaccinations, see our article, EEOC Permits Employers to Mandate COVID Vaccinations to Employees: Now What? 

Best Practices for Employers

Below are some best practices an employer should have in place to minimize the likelihood of claims of religious discrimination:

  • Employers should consider maintaining written anti-discrimination and anti-harassment policies. These policies should cover religious harassment, discrimination, and accommodations, as well as providing effective procedures for reporting, investigating, and correcting religious-based harassing conduct.  The policies should further contain an assurance that complainants will be protected against retaliation. All such policies should be consistently applied.
  • Employers should promptly intervene when they become aware of objectively abusive or insulting conduct based on religion, even absent a complaint.
  • Employers should provide managers and supervisors with training on what constitutes a religion, how to recognize religious accommodation requests from employees, and how to prevent and stop religious harassment, discrimination, and retaliation. Managers and supervisors should also be trained on how to best engage in the religious accommodation process and how to consider alternative available accommodations if the particular accommodation requested would pose an undue hardship.
  • If a reasonable religious accommodation request cannot be promptly implemented, an employer should consider offering alternative methods of accommodation on a temporary basis.  Additionally, while continuing to explore options of a permanent accommodation, the employer should consider apprising the employee of the status of its efforts.
  • Employers should timely record the legitimate non-discriminatory business reasons for any disciplinary or performance-related adverse actions and share these reasons with the employee.

Ultimately, employers will need to proceed with caution and should always consult with trusted legal counsel to confirm that its policies and practices are legal or before making a decision on whether to refuse an employees’ request for a religious accommodation on the grounds of undue hardship.  

If you have questions regarding these or other employment laws, please reach out to the Gordon & Rees Employment Law team and let us know how we can help you.

Employment Law

Tiffany Lee
Erika L. Shao

Employment Law