September 2008 - EEOC Issues Religious Discrimination Guidance

DUFF, WHITE & TURNER, L.L.C.

Attorneys and Counselors at Law

SCHOOL LAW
September 2008

EEOC ISSUES RELIGIOUS DISCRIMINATION GUIDANCE

The Equal Employment Opportunity Commission (EEOC) has recently issued new guidance documents to assist employers with religious discrimination issues. These documents include a new EEOC Compliance Manual on Religious Discrimination ("the Compliance Manual"), as well as "Questions and Answers: Religious Discrimination in the Workplace," and "Best Practices for Eradicating Religious Discrimination in the Workplace," all of which can be found at www.eeoc.gov/types/religion.html.

The EEOC issued this guidance in response to a growing number of religious discrimination charges being filed against employers under Title VII of the Civil Rights Act of 1964 ("Title VII") due to an increase in religious diversity in the workplace and a corresponding increase in requests by employees for religious accommodations at work. While the guidance documents are not legally binding, they are beneficial to employers because they define and provide examples of key terms and concepts such as "religion," "reasonable accommodation," "harassment," and "retaliation." The guidance documents also provide insight into how the EEOC analyzes religious discrimination complaints and sets forth "best practices" to be used by employers to avoid religious discrimination claims. We have highlighted these recommendations below:

Disparate Treatment - Title VII prohibits intentional discrimination on the basis of religion against employees and applicants for employment. To avoid the potential for a claim of intentional discrimination, also known as disparate treatment, the EEOC recommends that administrators and supervisors receive training on religion in the workplace and be encouraged to consult with more experienced administrators or human resource personnel if they are faced with religion-based employment issues. The EEOC also advises employers to limit the potential for disparate treatment claims by utilizing written, objective criteria and standardized, job-related interview questions during the hiring process. If discipline or performance-related action is taken against an employee, the EEOC recommends that the legitimate, nondiscriminatory reasons for the action be documented in an accurate and timely manner and shared with the affected employee.

Religious Harassment - Title VII also prohibits religious harassment, which occurs when employees (1) are required or coerced to abandon, alter, or adopt a religious practice as a condition of employment, or (2) are subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual reasonably finds the work environment to be hostile or abusive. The EEOC recommends that employers have a well-publicized and consistently applied anti-harassment policy that (1) addresses religious harassment, (2) clearly explains what is prohibited, (3) describes procedures for bringing religious harassment to management's attention and for investigating such allegations, and (4) contains an assurance that complainants will be protected from retaliation. Religious harassment should be addressed promptly and effectively whenever the employer becomes aware of it, rather than merely when the employee files a complaint. Administrators and supervisors should be trained to recognize religious harassment and permissible religious expression and advised to avoid conduct that might be perceived as religious coercion.

Reasonable Accommodation - Title VII requires employers to reasonably accommodate an employee's sincerely held religious belief, practice, or observance, unless doing so would create an undue hardship. A sincerely held religious belief, practice or observance is defined as "a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by... God." Whether something is a sincerely held religious belief, practice or observance depends upon the employee's motivation for engaging in the activity rather than the nature of the activity. For example, a vegetarian diet may be followed by some for general health needs, but for others, it may be followed because of a belief that the Bible requires it, in which case the practice would need to be accommodated unless it poses an undue hardship.

The EEOC recommends that employers train administrators and supervisors to recognize and properly address religious accommodation requests. Employers also should implement internal procedures that require an individual assessment of each accommodation request without resorting to assumptions or stereotypes about religious beliefs and practices, or appropriate accommodations of those beliefs and practices. Employers should be flexible in evaluating whether a requested accommodation is feasible or would result in an undue hardship for the employer. Reasonable accommodations may require making exceptions to policies or procedures where doing so would not infringe on other employees' legitimate expectations. The employee's proposed method of religious accommodation should always be considered, but does not have to be adopted if there is more than one effective manner of accommodation.

Retaliation - Title VII prohibits retaliation against an individual who has opposed religious discrimination or participated in an investigation, proceeding, or hearing regarding alleged religious discrimination. To prevent retaliation, the EEOC advises employers to train administrators and supervisors to be aware of their anti-retaliation obligations under Title VII, including informing them of actions that may be considered retaliatory. They also should be advised to carefully and accurately record the legitimate, nondiscriminatory reasons for employee discipline or performance-related actions and to share them with the affected employee.

If you have questions about religious discrimination in the workplace, please do not hesitate to contact us. We are available to assist with development of, or revisions to, board policies and procedural guidelines on religious discrimination, as well as with related training of administrative/supervisory staff.