The U.S. Equal Employment Opportunity Commission (EEOC) recently published new guidance (the “guidance”) on religious discrimination which will be included in the agency’s Compliance Manual. The 94 page guidance represents the EEOC’s most comprehensive publication on religious discrimination. It is the agency’s response to a nationwide increase in religious diversity and a corresponding increase in religious discrimination charges filed over the past fifteen years. The purpose of the guidance is to assist personnel at the EEOC as well as employers, employees, and unions, in complying with Title VII of the Civil Rights Act of 1964. The EEOC also published two companion documents, “Questions and Answers: Religious Discrimination in the Workplace” and “Best Practices for Eradicating Religious Discrimination in the Workplace.” All three publications are available on the EEOC’s website at http://www.eeoc.gov/types/religion.html.
The EEOC’s official policy on religious discrimination, Guidelines on Discrimination Because of Religion, published in Section 29, Part 1605 of the Code of Federal Regulations, remains in effect. The new guidance functions as a supplement to the Guidelines and does not alter or replace them. Although the guidance has no binding legal effect, it should be an important consideration in drafting workplace policies as it represents the EEOC’s position with respect to questions regarding religious discrimination.
Title VII of the Civil Rights Act of 1964 (the “Act”) prohibits employment discrimination based upon religion. The Act also requires employers to accommodate employees who make a request for an accommodation on the basis of sincerely held religious beliefs, observances, and practices unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer. The term undue hardship requires a showing of more than de minimis cost or burden incurred by the employer in making the requested accommodation. Employers with fifteen or more employees are subject to the Act.
EEOC Cites Increase in Religious Diversity and Religious Discrimination Claims
The new guidance cites a 2001 survey conducted by the Society for Human Resource Management and the Tanenbaum Center for Interreligious Understanding, reporting that 36% of human resource professionals noted an increase in religious diversity among employees over the past five years. The survey also reported a 20% increase in the number of requests for religious accommodations. Among the organizations that participated in the survey, less than one-third had a written policy covering religious diversity and only 4% had a policy separate and distinct from the organization’s diversity statement.
The EEOC links the increase in religious diversity to an increase in religious discrimination charges filed with the agency. According to statistics released by the EEOC, the number of religious discrimination claims have more than doubled over the past fifteen years. The EEOC received 2,880 religious discrimination charges in 2007 compared with only 1,388 religious discrimination charges in 1992. These statistics are projected to increase in the future.
New Guidance Sets Forth Best Practices for Employers
The topics addressed by the new guidance include the definition of religion, employment decisions (hiring, discipline, compensation, etc.), reasonable accommodation, harassment, retaliation, and related forms of discrimination based on national origin and race. In addition to a compilation of case law discussing these topics, the EEOC included numerous examples illustrating how these issues have arisen in recent cases brought by the agency on behalf of employees. Most importantly, employers receive an inside look as to how the EEOC investigates claims of religious discrimination through practice notes to EEOC investigators that are included throughout the guidance.
Employers should analyze their current policies after reviewing the EEOC’s list of best practices for employers, which is included both in the guidance and in the companion publication, “Best Practices for Eradicating Religious Discrimination in the Workplace.” The list includes recommended practices for reducing disparate treatment based on religion, religious harassment, and retaliation. Also included are suggestions about how to accommodate employees who request schedule changes, changes in job assignments, or modifications in workplace policies and procedures, and requests regarding religious expression in the workplace. Several of the recommendations are highlighted below:
- Be consistent when making employment decisions, establish written objective criteria for evaluating candidates for hire or promotion and ask the same questions of all candidates;
- Draft and distribute a clear anti-harassment policy to all employees that covers religious harassment;
- Consider adopting flexible leave and scheduling policies and procedures to reduce the need for religious accommodations, devise a system to facilitate voluntary substitutions and swaps between employees;
- Train management to be sensitive to requests for religious accommodation and to be creative in meeting requests for accommodation; and
- Consider posting a notice informing customers about equal employment opportunity laws in order to address customer biases or misperceptions based on religion, race, and national origin.
New and Emerging Issues Highlighted in New Guidance
The guidance highlights several new issues that had not been formally addressed by the EEOC in previous publications. First, citing the increase in religious diversity, the guidance urges employers to consider a very broad definition of “religion.” The courts’ interpretation of what constitutes religion often is in conflict with the understanding of many businesses that have limited their definition to the practice of traditional faiths. The guidance recommends that employers consider any religious belief espoused by an employee that concerns “ultimate ideas about life, purpose, and death” as long as the belief is “sincerely held” and is not followed for purely secular reasons or mere personal preferences. Beliefs that are uncommon or followed by a small group of individuals should not be immediately discounted. The guidance instructs EEOC investigators to look to the charging employee’s statements about their own religious beliefs as well as statements, affidavits, and other documents from religious leaders, family, friends, and co-workers in determining whether the employee has asserted a sincerely held religious belief.
Second, the guidance challenges employers to consider how recent events may have affected the public’s view of certain religious and/or national origin groups and how that relates to the workplace. Many of the examples in the guidance focus on Muslims and other non-Christians in the aftermath of the terrorist attacks on September 11, 2001. According to the Pew Forum on Religion & Public Life, Muslim Americans have faced the sharpest increase in discrimination over the past five years compared to all religious groups. The number of religious discrimination charges filed by Muslims more than doubled from 398 in 1997 to 907 in 2007, peaking at 1,155 charges filed in 2002. Religious discrimination charges filed by Jews and Seventh-Day Adventists, in contrast, have declined during the same period of time. The EEOC more specifically addresses this issue in a publication entitled “Questions and Answers About Employer Responsibilities Concerning the Employment of Muslims, Arabs, South Asians, and Sikhs,” which is available from the EEOC Web site at http://www.eeoc.gov/facts/backlash-employer.html.
The guidance reiterates the EEOC’s longstanding policies as to how employers should handle customer fears and prejudices about certain religious groups. Employment decisions based upon the discriminatory preferences of others, including co-workers and clients, is unlawful. Customer fears and prejudices do not constitute an undue hardship under the Act. Requests to wear religious garb in the workplace also should be carefully considered. In the examples provided in the guidance, an employer is liable under the Act for the termination of a Muslim employee based upon customer concerns about safety after the September 11th terrorist attacks. Along this same reasoning, a second example states that it also is unlawful to refuse to accommodate an employee who requests to wear a hijab, or religious clothing, while working in a position that requires exposure to the public merely because the employer believes that the hijab makes customers uncomfortable.
Another group that received attention in the guidance is immigrants. The Bureau of Labor Statistics of the U.S. Department of Labor reported that 24 million people, or 15.7% of the U.S. civilian labor force over the age of 16, was foreign-born during 2007. Discrimination charges based on national origin also have increased over the past decade. The EEOC reported that 9,396 national origin discrimination charges were filed in 2007 compared with 6,712 in 1997.1 The guidance does not directly address a link between the simultaneous rise in religious discrimination and national origin discrimination charges. However, the guidance specifically instructs EEOC investigators to ask questions of the charging party to identify other possible forms of discrimination. Thus, employers should be aware that they could be defending against multiple forms of alleged discrimination based upon a single employment decision.
Religious discrimination in the workplace is an issue that has received serious attention by the EEOC as is demonstrated by the comprehensive nature of the new guidance. Employers should review and update their current policies to ensure that they meet the recommendations provided in the guidance.