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The EEOC Gets Religious: New Compliance Guidelines For Religious Discrimination Claims

The United States Equal Employment Opportunity Commission (“EEOC”) recently updated its Compliance Manual concerning “Religious Discrimination,”  clarifying the EEOC’s guidance and instructions for investigating and analyzing charges alleging discrimination based on religion in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).  Dozens of real world examples based on published court decisions, and cases that the EEOC has prosecuted and settled, are used to illustrate the concepts embodied in the Compliance Manual.  Additionally, the updated Compliance Manual provides “Employer Best Practices,” which highlight the EEOC’s recommendations about how best to avoid religious discrimination.

The EEOC updated the Compliance Manual because, the EEOC explained, questions about religion in the workplace have increased as religious pluralism has increased.  In this regard, the EEOC indicates that the number of religious discrimination charges filed with the EEOC more than doubled between 1992 to 2007.

The Compliance Manual addresses “four theories” of liability for religious discrimination, including disparate treatment, harassment, reasonable accommodation and retaliation.  The EEOC emphasizes that charges involving religion must be investigated and analyzed under all four theories, even if the charging party raises a single claim under only one of those theories.  Thus, the EEOC’s directive potentially exposes employers to significant additional liability.

The following synopses highlight the information contained in the new Compliance Manual.

Religion Defined

The Compliance Manual reminds employers that religion is broadly defined under Title VII, and points out that protected religious beliefs “can include unique views held by a few or even one individual.”  Protected religious beliefs need not be “theistic” in nature to qualify.  Thus, a wide range of unusual belief systems could potentially qualify for protection under the EEOC’s view, as long as they are “sincerely held.”  Employers should therefore be cautious before taking action based on any belief system.


Significantly, while verbally harassing conduct is clearly based on religion if it has religious content, harassment can also be based on religion even if religion is not specifically mentioned.  For example, an employer may face liability under Title VII if it purposely alters its work schedule to conflict with the religious observance of an employee.  Additionally, an employer that alters the work schedule to harass an employee because of his or her religious views may be liable to the employee for (1) denial of a reasonable religious accommodation, and (2) retaliation for requesting a reasonable accommodation.  Given the broad definitions of religion and religious harassment, as well as the possibility of multiple claims under Title VII, employers should be proactive in training managers on how to identify signs of harassment and respond to harassment claims.

Reasonable Accommodation

The Compliance Manual’s discussion of reasonable religious accommodations is particularly instructive, explaining the EEOC’s view on when an employer is considered to have notice of an employee’s requested religious accommodation, what is considered to be a “reasonable” religious accommodation, and what may be considered an undue hardship for an employer.

The EEOC indicates that the following requirements must exist before an employer is obligated to provide an employee with a religious accommodation:

  • An applicant or employee seeking a religious accommodation must inform the employer of both the need for accommodation and that such an accommodation is being requested due to a conflict between religion and work;
  • Once an employee has put the employer on notice of an accommodation request, the employee must cooperate with the employer’s efforts to determine whether a reasonable accommodation can be granted; and
  • The request for an accommodation by an employee must not impose an undue hardship on the employer.

While this analysis is similar to the analysis under the Americans with Disabilities Act, it can be more challenging for employers because accommodating religion often requires granting additional time off during weekends when employees typically do not want to work.  The most common methods of providing reasonable religious accommodations to employees include:  (1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers and/or changed job assignments; and (4) modified workplace practices, policies, and/or procedures.

Another common challenge pertains to accommodating requests to depart from rules about dress codes and appearances.  In this regard, in providing reasonable accommodations to employees, it is especially important for employers to understand that reliance on the broad rubric of “image” in denying an employee’s requested accommodation may violate Title VII.  The EEOC holds that customer fears or prejudices do not amount to an undue hardship, so generally an employer may not refuse to accommodate an employee’s request to wear certain religious garb on such grounds.  For example, a restaurant may not deny an employee from having visible religious tattoos based on the restaurant’s desired family-oriented and kid-friendly image, absent the restaurant’s showing of actual imposition on co-workers or a disruption of the work routine.  However, there are limited situations in which the need for uniformity of appearance is so necessary that a modification of the dress code would pose an undue hardship on the employer (e.g., police departments, correctional facilities, etc.).  These situations are carefully scrutinized by the EEOC, so employers should be careful to avoid denying an employee’s request for a religious accommodation where undue hardship cannot be shown.

To establish that a requested accommodation creates an undue hardship, the employer must demonstrate that allowing such an accommodation would require more than de minimis cost.  For example, the payment of administrative costs associated with rescheduling or the occasional or temporary payment of overtime wages would probably not constitute more than de minimis costs.  However, the regular payment of overtime wages or the hiring of an additional employee to provide an accommodation would likely be considered to exceed the de minimis threshold so as to cause an undue hardship on the employer.

Employer Best Practices

The Compliance Manual contains the EEOC’s suggested “best practices” for employers, which, if followed, will help eradicate religious discrimination in the workplace.  These practices instruct employers to:

  • establish written objective criteria for evaluating candidates for hire or promotion and apply those criteria consistently to all candidates;
  • in conducting job interviews, 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;
  • carefully and timely record the accurate business reasons for disciplinary or performance related actions and share these reasons with the affected employee(s);
  • when management decisions require the exercise of subjective judgment, provide training to inexperienced managers and encourage them to consult with more experienced managers or human resources personnel when addressing a difficult issue;
  • allow religious expression among employees to the same extent that employers allow other types of personal expression that are not harassing or disruptive;
  • make sure to 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;
  • confer fully and promptly with employees to the extent needed to glean any necessary information about employees’ religious needs and available accommodation options; and
  • make every effort to accommodate an employee’s desire to wear religious garb.  If the employer is concerned about uniform appearance in a position involving interaction with the public, it may be appropriate to consider whether the employee’s religious view would permit him or her to resolve the religious conflict by, for example, wearing the item of religious garb in the company’s uniform color.

The EEOC’s updated Compliance Manual also provides helpful guidance on how to prevent religious discrimination, how to spot its existence, and how to comply with the requirements of Title VII.

We would be happy to answer any questions about, and provide you with a copy of, the updated EEOC Compliance Manual, or to assist with any EEOC-related claims or compliance inquiries that you may have.