EEOC offers employers guidance on avoiding religious discrimination

October 24, 2008

Excerpted from Oklahoma Employment Law Letter written by attorneys at the law firm of McAfee & Taft

by Tony Puckett

Recently, the Equal Employment Opportunity Commission (EEOC) issued new guidance on religious discrimination under Title VII of the Civil Rights Act of 1964. It also issued two other sets of materials addressing religious discrimination: "Questions and Answers: Religious Discrimination in the Workplace" and "Best Practices for Eradicating Religious Discrimination in the Workplace." Let's take a closer look at what the agency had to say.

EEOC's new guidelines
Religious discrimination is similar to other types of discrimination in that it's included in Title VII as one of the characteristics protected from discrimination in the workplace. Title VII prohibits discrimination based on religion in hiring, discipline, pay, or any other term or condition of employment. It also prohibits harassment based on an employee's religious beliefs.

What caused the EEOC to update its policies on religious discrimination in the workplace? Employers and HR professionals reported that questions about religion in the workplace have increased in direct correlation with the increase in religiously diverse applicants and employees. For example, the number of religious discrimination charges more than doubled from 1992 to 2007.

The EEOC's guidance highlights both the similarities and differences of religious discrimination to other types of employment discrimination. Numerous examples are offered to help clarify policy statements, and a list of best practices is provided to assist employers in addressing the issue of religion in the workplace.

HR Executive Special Report: Ten Commandments for Avoiding Religious Harassment & Discrimination Claims

What is 'religion,' 'religious belief'?
"Religion" is defined very broadly under Title VII. Religious beliefs and practices include both theistic and nontheistic beliefs. The EEOC describes nontheistic beliefs as "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views," including "unique views held by a few or even one individual." The agency notes, however, that "mere personal preferences are not religious beliefs."

As an example of the difference between a religious belief and a personal preference, the EEOC compares a Catholic employee who requests a schedule change to attend church services on Good Friday with an employee who requests a schedule change to help set up decorations or food for a church event. The former would involve a religious practice or observance while the latter would not.

Part of the test for accommodating a religious practice is whether the employee's belief is sincerely held. You might be tempted to question an employee about his belief and the sincerity of it. However, unless you have an objective and legitimate basis for doing so, unreasonably questioning an employee can be used as evidence of your intent to discriminate based on his religious belief. Examples of legitimate questions include ascertaining when, where, and how an employee has embraced the asserted practice.

Religious discomfort, proselytizing, and accommodation
When it comes to religious beliefs, taking employment action based on others' preferences or discomfort can be a problem. If you take an action based on the discriminatory preferences of others, including coworkers or clients, you're unlawfully discriminating.

As an example, the EEOC describes an employee who wears a turban as part of his Sikh religion and works at the counter in a coffee shop. Shortly after he begins work, the manager notices a construction crew from a nearby site no longer visits the shop. When asked why, crew members tell him that the worker makes them uncomfortable in light of the September 11 attacks. The manager tells the employee he has to let him go because of customer complaints. Under the EEOC guidance, the manager's actions constitute unlawful religious discrimination because he has taken an adverse action based on customers' preference not to have a cashier they perceive as Muslim.

The EEOC also addresses religious proselytizing in the workplace. Permitting workplace proselytizing not only raises religious accommodation issues but also raises issues of religious discrimination and harassment. Religious expression can create an undue hardship if it disrupts the work of other employees or if workers feel harassed. Under the new guidance, practices that fall within the category of religious proselytizing include the display of religious material or items in an employee's work area, one-on-one discussions about religious beliefs, and displaying religious icons or messages at work-stations.

The EEOC specifically addresses the use of greetings by customer service employees, such as a general religious greeting like "Have a blessed day." Such a greeting is permitted in the context of the employee accepting payment if it is said as a brief, anonymous greeting and has a minimal adverse effect on customers. However, courts have found undue hardship when religiously oriented expression is used as part of regular business interaction with a customer.

Cost of accommodation
Title VII's provisions on religious discrimination require you to make reasonable accommodations for employees' sincerely held religious beliefs and practices when requested unless doing so would impose an undue hardship on business operations. The standard for undue hardship in the context of religious discrimination is much lower than that under the Americans with Disabilities Act. For religious discrimination, undue hardship is defined as "more than a de minimis [minimal] cost or burden."

In determining what is "minimal," the EEOC considers the cost of the accommodation in relation to the size and operating costs of the employer as well as the number of individuals who require accommodation. Generally, costs associated with rearranging schedules or paying temporary overtime don't constitute "more than a de minimis cost." However, regular payment of overtime or hiring additional employees to provide an accommodation will typically be viewed as an undue hardship on an employer.

When considering the costs of accommodation, the burden of conducting business plays a significant role. Courts have found that an undue hardship exists when the accommodation:

• diminishes efficiency in other jobs;
• infringes on other employees' job rights or benefits (such as seniority systems negotiated in a collective bargaining agreement);
• impairs workplace safety; or
• causes coworkers to carry the accommodated employee's share of hazardous or burdensome work.

With that in mind, the EEOC has provided a list of potential accommodations for religious practices in the workplace. Some possible solutions include the following:

• scheduling changes to accommodate flexible arrivals or departures so an employee may observe a religious practice or make up missed time;
• voluntary substitutions and shift-swaps by employees to accommodate an employee's request for time off to attend religious ceremonies;
• changing job tasks or transferring an employee to another job; or
• modifying dress or grooming standards.

Check it out
In light of the multitude of religions and religious observances among employees, it's certainly worth taking a look at the new guidance -- you can bet your workers and their counsel will. Adoption of the best practices would be a significant step toward not only preventing workplace discrimination based on religion but also defending against religious discrimination claims.

For a copy of the guidance and tools discussed in this article, visit the EEOC's website at www.eeoc.gov/policy/compliance.html.

The author may be reached at tony.puckett@mcafeetaft.com.

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Copyright 2008 M. Lee Smith Publishers LLC. OKLAHOMA EMPLOYMENT LAW LETTER. OKLAHOMA EMPLOYMENT LAW LETTER does not attempt to offer solutions to any individual problems or to provide legal advice to its readers. Rather, the OKLAHOMA EMPLOYMENT LAW LETTER seeks to provide information about current developments in Oklahoma employment law. Questions about individual problems or requests for legal advice should be addressed to an employment law attorney of your choice.

Related articles from the State Employment Law Letters
designates additional valuable resources available exclusively to Employment Law Letter subscribers

HR Tools for Religious Discrimination

• HR Executive Special Report - Recognizing & Responding to Workplace Discrimination
  (available for purchase by nonsubscribers)
• HR Executive Special Report - Ten Commandments for Avoiding Religious Harassment & Discrimination Claims
  (available for purchase by nonsubscribers)
• Sample Policy - Equal Employment
• Sample Policy - Harassment and/or Discrimination

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