Aug 11, 2008

EEOC Issues Guidance on Religious Discrimination and Accommodation

The Equal Employment Opportunity Commission (EEOC) recently issued a new section of its Compliance Manual on religious discrimination, along with a fact sheet of questions and answers and a best practices guide. These documents were issued partly in response to a rise in charges of religious discrimination, which have doubled in the last 15 years (although they still make up a small fraction of the total charges the EEOC receives -- 3.5%, according to the agency).

Religion is unique among the characteristics protected from discrimination. Religion isn't really a characteristic, like race or gender; it's a belief system. And unlike other protected traits, which are sometimes protected precisely because they are "immutable," religious belief is deeply personal and can change over time. A person might become more religious, convert from one religion to another, or abandon faith entirely. A person might strongly feel him- or herself to be part of a religion, yet not share all of its beliefs or follow all of its teachings. Also, unlike other protected traits, religion sometimes requires particular behavior while adherents are at work, such as prayer; observing certain holidays; wearing specified items, types of clothing, or hair styles; or professing one's faith to others.

All this adds up to potential workplace conflict, especially when you consider that atheism is also considered a "religion" for purposes of anti-discrimination law. What if an employee's religious beliefs require him or her to "spread the good news" to customers and coworkers -- who complain about it? What if an employee's religious garb creates a potential safety hazard or simply violates the company's uniform rule? What if an employee requests an accommodation for a claimed religious belief that you've never heard of, refuses to provide a Social Security number because it constitutes "the mark of the beast," or asks to be excused from a management training course featuring a New Age speaker?

The EEOC's Manual attempts to clarify some of these issues. Among other things, the new Manual provides guidance on:

What constitutes a religious belief. Once an employee goes beyond recognized religious affiliations, it can be hard for an employer to determine whether the employee's belief is actually religious. Vegetarianism, particular styles of dress or hair length, and views on appropriate gender roles, for example, could each be part of a system of religious practices or could simply be a matter of personal opinion or preference. As the Manual points out, personal beliefs are not protected by Title VII; that privilege is reserved for religious beliefs, defined as those that are sincere, meaningful, occupy a place for the believer "parallel to that filled by...God," and concern "'ultimate ideas' about 'life, purpose, and death.'"

Discrimination based on third party bias. The Manual makes clear that employment decisions based on customer preference or prejudice -- for example, against employees who are perceived as Muslim -- are discriminatory. Oddly, the Manual also says that it would be okay for employers to require Muslim applicants to undergo more extensive security or background checks if required by federal law or Executive Order, but then goes on to say that no such law or Order exists, as far as it knows.

Reasonable accommodation and undue hardship. Employers are legally required to accommodate an employee's religious belief, practice, or expression. The Manual gives extensive guidance on accommodations that might be reasonable for an employee who requests a scheduling change (to observe religious rituals or a Sabbath), an exception from usual dress or grooming requirements, or breaks at work to pray. The Manual indicates that employers would be well-advised to follow the "interactive process" required by the ADA in working with employees to come up with a suitable accommodation. Although the Manual notes that any expense beyond administrative costs is considered an undue hardship under Title VII, it also states that an employer might be expected to pay premium wages (for example, overtime pay to another employee) as a temporary accommodation for an employee who needs time off for religious reasons.

Religious expression. The Manual cites a survey indicating that 19% of employees proselytize to coworkers. It also discusses other forms of religious expression in the workplace, from an employee who wears a button with an anti-abortion message and graphic photograph of a fetus or a patch saying "Jesus is Lord," to employees who wish to greet customers with "Have a Blessed Day," "Praise the Lord," or "in the name of Jesus of Nazareth."

The Manual doesn't do much to resolve the current legal bind of employers here: These are considered forms of religious expression entitled to accommodation. On the other hand, other employees may find these statements harassing -- and the employer itself might legitimately feel that such statements give the public the wrong idea about the company's own values and mission. There are no bright lines: Unlike racist or sexist comments, which an employer can and should stop whether or not they've reached the level of legal harassment, religious comments are not considered legally inappropriate. In fact, they are legally protected to some extent, and an employer who prohibits them absent complaints or other evidence of trouble could face a successful legal challenge.