- ⇒ Oral statements, an affidavit, or other documents from CP describing his or her beliefs and practices, including information regarding when CP embraced the belief, observance, or practice, as well as when, where, and how CP has adhered to the belief, observance, or practice; and/or,
- ⇒ Oral statements, affidavits, or other documents from potential witnesses identified by CP or R as having knowledge of whether CP adheres or does not adhere to the belief, observance, or practice at issue (e.g., CP’s religious leader (if applicable), fellow adherents (if applicable), family, friends, neighbors, managers, or coworkers who may have observed his past adherence or lack thereof, or discussed it with him).
B. Covered Entities
Overview: Title VII coverage rules apply to all religious discrimination claims under the statute. However, specially defined “religious organizations” and “religious educational institutions” are exempt from certain religious discrimination provisions, and the ministerial exception bars EEO claims by employees of religious institutions who perform vital religious duties at the core of the mission of the religious institution.
Title VII’s prohibitions apply to employers, employment agencies, and unions,[53] subject to the statute’s coverage.[54] Those covered entities must carry out their activities in a nondiscriminatory manner and provide reasonable accommodation unless doing so would impose an undue hardship.[55] Unions also can be liable if they knowingly acquiesce in employment discrimination against their members, join or tolerate employers’ discriminatory practices, or discriminatorily refuse to represent employees’ interests, and employment agencies can be liable for participating in the client-employer’s discrimination.[56]
C. Exceptions
1. Religious Organizations
What Entities are “Religious Organizations”? Under sections 702(a) and 703(e)(2) of Title VII, “a religious corporation, association, educational institution, or society,” including a religious “school, college, university, or educational institution or institution of learning,” is permitted to hire and employ individuals “of a particular religion . . . .”[57] This “religious organization” exemption applies only to those organizations whose “purpose and character are primarily religious,” but to determine whether this statutory exemption applies, courts have looked at “all the facts,” considering and weighing “the religious and secular characteristics” of the entity.[58] Courts have articulated different factors to determine whether an entity is a religious organization, including (1) whether the entity operates for a profit; (2) whether it produces a secular product; (3) whether the entity’s articles of incorporation or other pertinent documents state a religious purpose; (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue; (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; (6) whether the entity holds itself out to the public as secular or sectarian; (7) whether the entity regularly includes prayer or other forms of worship in its activities; (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and (9) whether its membership is made up of coreligionists.[59] Depending on the facts, courts have found that Title VII’s religious organization exemption applies not only to churches and other houses of worship, but also to religious schools, hospitals, and charities.[60]
Courts have expressly recognized that engaging in secular activities does not disqualify an employer from being a “religious organization” within the meaning of the Title VII statutory exemption. “[R]eligious organizations may engage in secular activities without forfeiting protection” under the Title VII statutory exemption.[61] The Title VII statutory exemption provisions do not mention nonprofit and for-profit status.[62] Title VII case law has not definitively addressed whether a for-profit corporation that satisfies the other factors can constitute a religious corporation under Title VII. [63]
Where the religious organization exemption is asserted by a respondent employer, the Commission will consider the facts on a case-by-case basis; no one factor is dispositive in determining if a covered entity is a religious organization under Title VII’s exemption.
Scope of Religious Organization Exemption. Section 702(a) states, “[t]his subchapter shall not apply to … a religious corporation, association, educational institution, or society . . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on . . . of its activities.” [64] Religious organizations are subject to the Title VII prohibitions against discrimination on the basis of race, color, sex, national origin (as well as the anti-discrimination provisions of the other EEO laws such as the ADEA, ADA, and GINA), and may not engage in related retaliation. [65] However, sections 702(a) and 703(e)(2) [66] allow a qualifying religious organization to assert as a defense to a Title VII claim of discrimination or retaliation that it made the challenged employment decision on the basis of religion. [67] The definition of “religion” found in section 701(j) is applicable to the use of the term in sections 702(a) and 703(e)(2), although the provision of the definition regarding reasonable accommodations is not relevant. [68]
Courts have held that the religious organization’s assertion that the challenged employment decision was made on the basis of religion is subject to a pretext inquiry where the employee has the burden to prove pretext. [69] Courts also have held that any inquiry into the pretext of a religious organization’s rationale for its decision must be limited to “sincerity” and cannot be used to challenge the validity or plausibility of the underlying religious doctrine. [70] For example, one court has held that a religious organization could not justify denying insurance benefits only to married women by asserting a religiously based view that only men could be the head of a household when evidence of practice inconsistent with such a belief established “conclusive[ly]” that the employer’s religious justification was “pretext” for sex discrimination. [71]
In EEOC v. Mississippi College, the court held that if a religious institution presents “convincing evidence” that the challenged employment practice resulted from discrimination on the basis of religion, section 702 “deprives the EEOC of jurisdiction to investigate further to determine whether the religious discrimination was a pretext for some other form of discrimination.”[72] Despite the court’s use of “jurisdiction” here, it has been held in light of the Supreme Court’s decision in Arbaugh v. Y & H Corp., that Title VII’s religious organization exemptions are not jurisdictional. [73]
The religious organization exemption is not limited to jobs involved in the specifically religious activities of the organization. [74] Rather, “the explicit exemptions to Title VII . . . enable religious organizations to create and maintain communities composed solely of individuals faithful to their doctrinal practices, whether or not every individual plays a direct role in the organization’s ‘religious activities.’”[75] In addition, the exemption allows religious organizations to prefer to employ individuals who share their religion, defined not by the self-identified religious affiliation of the employee, but broadly by the employer’s religious observances, practices, and beliefs. [76] Consistent with applicable EEO laws, the prerogative of a religious organization to employ individuals “‘of a particular religion’ . . . has been interpreted to include the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” [77] Some courts have held that the religious organization exemption can still be established notwithstanding actions such as holding oneself out as an equal employment opportunity employer or hiring someone of a different religion for a position. [78]
EXAMPLE 7
Religious Organization Exemption Applies
Justina taught mathematics at a small Catholic college, which requires all employees to agree to adhere to Catholic doctrine. After she signed a pro-choice advertisement in the local newspaper, the college terminated her employment because of her public support of a position in violation of Church doctrine. Justina claimed sex discrimination, alleging that male professors were treated less harshly for other conduct that violated Church doctrine. Because the exemption to Title VII preserves the religious school’s ability to maintain a community composed of individuals faithful to its doctrinal practices, and because evaluating Justina’s discipline compared to the male professors, who engaged in different behavior, would require the court to compare the relative severity of violations of religious doctrines, Title VII’s religious organization exemption bars adjudication of the sex discrimination claim. [79] The analysis would be different if a male professor at the school signed the same advertisement and was not terminated, because “[r]equiring a religious employer to explain why it has treated two employees who have committed essentially the same offense differently poses no threat to the employer's ability to create and maintain communities of the faithful.”[80]
2. Ministerial Exception
In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,[81] the Supreme Court “unanimously recognized that the Religion Clauses [of the First Amendment] foreclose certain employment-discrimination claims brought against religious organizations.” [82] The Court held that the First Amendment safeguards the right of a religious organization, free from interference from civil authorities, to select those who will “personify its beliefs,” “shape its own faith and mission,” or “minister to the faithful.”[83] This rule is known as the “ministerial exception,” apparently because “the individuals involved in pioneering cases were described as ‘ministers,’” [84] but as discussed below, the exception is not limited to “ministers” or members of the clergy. The rule provides “an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”[85]
The exception applies to discrimination claims involving selection, supervision, and removal against a religious institution by employees who “play certain key roles.” [86] “The constitutional foundation” of the Court’s holding in Hosanna-Tabor was “the general principle of church autonomy.”[87] “Among other things, the Religion Clauses protect the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” [88] The First Amendment “outlaws” such intrusion because “[s]tate interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion.” [89] “This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission.” [90]
A “religious institution” for purposes of the ministerial exception is one whose “mission is marked by clear or obvious religious characteristics.” [91] Like Title VII’s religious organization exemption, courts have applied the ministerial exception to religious employers beyond churches and other houses of worship. [92] But unlike the statutory religious organization exemption, the ministerial exception applies regardless of whether the challenged employment decision was for “religious” reasons. [93]
As the Supreme Court stated in Our Lady of Guadalupe School v. Morrissey-Berru, the ministerial exception applies to employees who perform “vital religious duties” at the core of the mission of the religious institution. [94] The Supreme Court in Hosanna-Tabor declined to adopt a “rigid formula”[95] for deciding when the ministerial exception applies. Instead, in deciding whether a Lutheran school teacher’s retaliation claim was barred by the ministerial exception, the Supreme Court looked to “all the circumstances of her employment,” recognizing four “considerations” or “circumstances that [it] found relevant in that case”: (1) the employee’s formal title; (2) education or training; (3) the employee’s own use of the title; and (4) the “important religious functions” the employee performed. [96] The Court further explained that, while relevant, “a title, by itself, does not automatically ensure coverage,” [97] and that the title “minister” is not “a necessary requirement,” cautioning against “attaching too much significance to titles.” [98] Relatedly, while academic requirements are relevant, “insisting in every case on rigid academic requirements could have a distorting effect” and “judges have no warrant to second-guess [a religious institution’s qualification] judgment or to impose their own credentialing requirements.” [99] The Court rejected the view that the ministerial exception “should be limited to those employees who perform exclusively religious functions” and cautioned against placing too much emphasis on the performance of secular duties or the time spent on those duties. [100]
In Our Lady of Guadalupe School, the Court reiterated that the four “considerations” relevant in Hosanna-Tabor are not intended to constitute a four-factor test because “a variety of factors may be important.” [101] The Court explained that Hosanna-Tabor directs “courts to take all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the exception.” [102] The circumstances that were instructive in Hosanna-Tabor are not “inflexible requirements” and may have “far less significance in some cases” because “[w]hat matters, at bottom, is what an employee does.” [103]
The religious institution’s “definition and explanation” of an employee’s role “in the life of the religion in question is important.”[104] The ministerial exception is not limited to the head of a religious congregation, leaders, ministers, or members of the clergy, and can apply to “lay” employees and even non-“co-religionists” or those not “practicing” the faith. [105] Courts have applied the ministerial exception in cases involving parochial school teachers, [106] church musicians, [107] and other employees who perform religious functions. [108]
In Our Lady of Guadalupe, the Court explained that for a private religious school, “educating and forming students in the faith,” “inculcating its teachings, and training [students] to live their faith are responsibilities that lie at the very core of the mission” and “the selection and supervision of the teachers” who do this work are necessarily core elements of achieving the mission. [109] The Court declined to “draw a critical distinction between a person who “simply relay[s] religious tenets” and one who relays such tenets while also “minister[ing] to the faithful,” but noted that a teacher of “world religions,” “who merely provides a description of the beliefs and practices of a religion without making any effort to inculcate those beliefs could not qualify for the exception.” [110]
In holding that the ministerial exception barred employment discrimination claims by two elementary school teachers in Roman Catholic schools in Our Lady of Guadalupe, the Court found abundant evidence that the teachers “performed vital religious duties,” including: their employment contracts required them to carry out the schools’ religious mission and specified “that their work would be evaluated to ensure that they were fulfilling that responsibility”; their job duties required them to teach all subjects, including religion; they prepared their students for participation in religious activities, prayed with them, and attended Mass with them; and, they were the staff members “entrusted most directly with the responsibility of educating their students in the faith,” which included teaching them about the Catholic faith and guiding them “by word and deed, toward the goal of living their lives in accordance with the faith.” [111] Therefore, even though the teachers each lacked a religious title and the religious training possessed by the teacher in Hosanna-Tabor, their core responsibilities as teachers of religion were essentially the same as hers, and “their schools expressly saw them as playing a vital role in carrying out the mission of the church.” [112]
The ministerial exception is not just a legal defense that can be raised by religious institutions, but a constitutionally-based guarantee that obligates the government and the courts to refrain from interfering or entangling themselves with religion. [113] As such, it should be resolved at the earliest possible stage before reaching the underlying discrimination claim. [114] Some courts have held that the ministerial exception is not waivable.[115]
3. Additional Interaction of Title VII with the First Amendment and the Religious Freedom Restoration Act (RFRA)
As noted above, the ministerial exception is based on the interaction between the workplace and the First Amendment. The applicability and scope of other defenses based on Title VII’s interaction with the First Amendment or the Religious Freedom Restoration Act (RFRA) is an evolving area of the law. [116] It is not within the scope of this document to define the parameters of the First Amendment or RFRA. However, these provisions are referenced throughout this document to illustrate how they arise in Title VII cases and how courts have analyzed them. For example:
- a private sector employer or a religious organization might argue that its rights under the First Amendment’s Free Exercise or Free Speech Clauses, or under RFRA, would be violated if it is compelled by Title VII to grant a particular accommodation or otherwise refrain from enforcing an employment policy;[117]
- a government employer might argue that granting a requested religious accommodation would pose an undue hardship because it would violate the Establishment Clause of the First Amendment;[118]
- some government employees might argue that their religious expression is protected by the First Amendment, RFRA, and/or Title VII;[119] and,
- some government employees raise claims under the First Amendment or RFRA parallel to their Title VII accommodation claims;[120] to date, appellate courts have uniformly held that Title VII preempts federal employees from bringing RFRA claims against their agency employer.[121]
Courts addressing the overlap between EEO laws and rights under RFRA and the Free Exercise Clause have stressed the importance of a nuanced balancing of potential burdens on religious expression, the governmental interests at issue, and how narrowly tailored the challenged government requirements are.[122]
NOTE: EEOC investigators must take great care in situations involving both (a) the statutory rights of employees to be free from discrimination at work, and (b) the rights of employers under the First Amendment and RFRA. Although a resolution satisfactory to all may come from good faith on the part of the employer and employee through mutual efforts to reach a reasonable accommodation, on occasion the religious interests of the employer and employee may be in conflict. EEOC personnel should seek the advice of the EEOC Legal Counsel in such a situation, and on occasion the Legal Counsel may consult as needed with the U.S. Department of Justice.
12-II EMPLOYMENT DECISIONS
A. General
Title VII’s prohibition against discrimination based on religion generally functions like its prohibition against discrimination based on race, color, sex, or national origin. Absent a defense, disparate treatment violates the statute whether motivated by bias against or preference toward an applicant or employee due to his religious beliefs, practices, or observances – or lack thereof. Thus, for example, except to the extent an exemption, exception, or defense applies, an employer may not refuse to recruit, hire or promote individuals of a certain religion, may not impose stricter promotion requirements for persons of a certain religion, and may not impose more or different work requirements on an employee because of that employee’s religious beliefs or practices.[123] The following subsections address work scenarios that may lead to claims of religious discrimination.
1. Recruitment, Hiring, and Promotion
Employers that are not religious organizations may neither recruit indicating a preference for individuals of a particular religion nor adopt recruitment practices, such as word-of-mouth recruitment, that have the purpose or effect of discriminating based on religion.[124] Title VII permits employers that are not religious organizations to recruit, hire and employ employees on the basis of religion only if religion is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”[125]
For example, other than as discussed above with respect to the religious organization and ministerial exceptions discussed above, an employer may not refuse to hire an applicant simply because the applicant does not share the employer’s religious beliefs, and conversely may not select one applicant over another based on a preference for employees of a particular religion.[126] Similarly, employment agencies may not comply with requests from employers to engage in discriminatory recruitment or referral practices, for example by screening out applicants who have names often associated with a particular religion (e.g., Mohammed).[127] Moreover, an employer may not exclude an applicant from hire merely because the applicant may need a reasonable accommodation for his or her religious beliefs, observances, or practices that could be provided absent undue hardship.[128]
EXAMPLE 8
Recruitment
Charles, the president of a company that owns several gas stations, needs managers for the new convenience stores he has decided to add to the stations. He posts a job announcement at the Hindu Temple he attends expressing a preference for Hindu employees. In doing so, Charles is engaging in unlawful discrimination.[129]
EXAMPLE 9
Hiring
A. Mary is a human resources officer who is filling a vacant administrative position at her company. During the application process, she performs an Internet search on the candidates and learns that one applicant, Jonathan, has written an article in which he describes himself as an Evangelical Christian and discusses how important his Christian faith is to all aspects of his life. Although Mary believes he is the most qualified candidate, she does not hire him because she knows that the company prefers to have a “secular” work environment and she thinks that most of the company’s employees will find working with someone so religious “weird.” Therefore, Mary decides that it is best not to hire Jonathan. By not hiring Jonathan because of his religion, the company violated Title VII.
B. Aatma, an applicant for a rental car sales position who is an observant Sikh, wears a dastaar (religious headscarf) to her job interview. The interviewer does not advise her that there is a dress code prohibiting head coverings, and Aatma does not ask whether she would be permitted to wear the headscarf if she were hired. The manager knew or suspected the headscarf was a religious garment, presumed it would be worn at work, and refused to hire her because the company requires sales agents to wear a uniform with no additions or exceptions. Unless the employer can demonstrate that no reasonable accommodation was possible absent undue hardship, this refusal to hire violates Title VII, even though Aatma did not make a request for accommodation at the interview, because the employer believed her practice was religious and that she would need accommodation, and did not hire her for that reason.[130]
C. A company’s policy bars any employees from working in customer contact positions if they have a beard or wear a headcovering, and requests for religious accommodations are always denied. As a result of this policy and practice, individuals who wear beards or headcoverings pursuant to a religious belief work in lower-paying positions or positions with less opportunity for advancement. This would constitute limiting, segregating, or classifying based on religion in violation of Title VII, and may also have an unlawful disparate impact based on religion if it is not job-related and consistent with business necessity.[131]
EXAMPLE 10
Promotion
Darpak, who practices Buddhism, holds a Ph.D. degree in engineering and applied for a managerial position at the research firm where he has worked for ten years. He was rejected in favor of a non-Buddhist candidate who was less qualified. The company vice president who made the promotion decision advised Darpak that he was not selected because “we decided to go in a different direction.” However, the vice president confided to coworkers at a social function that he did not select Darpak because he thought a Christian manager could make better personal connections with the firm’s clients, many of whom are Christian. The vice president’s statement, combined with the lack of any legitimate non-discriminatory reason for selecting the less qualified candidate, as well as the evidence that Darpak was the best qualified candidate for the position, suggests that the proffered reason was a pretext for discrimination against Darpak because of his religion.[132]
2. Discipline and Discharge
Title VII also prohibits employers from disciplining or discharging employees because of their religion.[133]
EXAMPLE 11
Discipline
Joanne, a retail store clerk, is frequently 10-15 minutes late for her shift on several days per week when she attends Mass at a Catholic church across town. Her manager, Donald, has never disciplined her for this tardiness, and instead filled in for her at the cash register until she arrived, stating that he understood her situation. On the other hand, Yusef, a newly hired clerk who is Muslim, is disciplined by Donald for arriving 10 minutes late for his shift even though Donald knows it is due to his attendance at services at the local mosque. While Donald can require all similarly situated employees to be punctual, he is engaging in disparate treatment based on religion by disciplining only Yusef and not Joanne absent a legitimate nondiscriminatory reason for treating them differently.
A charge alleging the above facts might involve denial of reasonable accommodation if the employee had requested a schedule adjustment. While the employer may require employees to be punctual and request approval of schedule changes in advance,[134] it may have to accommodate an employee who seeks leave or a schedule change to resolve the conflict between religious services and a work schedule, unless the accommodation would pose an undue hardship.
3. Compensation and Other Terms, Conditions, or Privileges of Employment
Title VII prohibits discrimination on a protected basis “with respect to . . . compensation, terms, conditions, or privileges of employment,” for example, setting or adjusting wages, granting benefits, and/or providing leave in a discriminatory fashion.[135]
EXAMPLE 12
Wages and Benefits
Janet, who practices Native American spirituality, is a newly hired social worker for an agency. As a benefit to its employees, the agency provides tuition reimbursement for professional continuing education courses offered by selected providers. Janet applied for tuition reimbursement for an approved course that was within the permitted cost limit. Janet’s supervisor denied her request for tuition reimbursement, stating that since Janet believes in “voodoo” she “won’t make a very good caseworker.” By refusing, because of Janet’s religious beliefs, to provide the tuition reimbursement to which Janet was otherwise entitled as a benefit of her employment, Janet’s supervisor has discriminated against Janet on the basis of religion in violation of Title VII.
Title VII’s prohibition on disparate treatment based on religious beliefs also can apply to disparate treatment of religious expression in the workplace.[136]
EXAMPLE 13
Religious Expression
Eve is a secretary who displays a Bible on her desk at work. Xavier, a secretary in the same workplace, begins displaying a Quran on his desk at work. Their supervisor allows Eve to retain the Bible but directs Xavier to put the Quran out of view because, he states, coworkers “will think you are making a political statement, and with everything going on in the world right now we don’t need that around here.” This differential treatment of similarly situated employees with respect to the display of a religious item at work constitutes religious discrimination.[137]
Charges involving religious expression may involve not only allegations of differential treatment but also of harassment and/or denial of reasonable accommodation. Investigation of allegations of harassment and denial of reasonable accommodation are addressed respectively in §§ 12-III and 12-IV of this document. As discussed in greater detail in those sections, Title VII requires employers to accommodate expression that is based on a sincerely held religious practice or belief, unless it threatens to constitute harassment[138] or poses an “undue hardship” on the conduct of the business.[139] An employer can thus restrict religious expression when it would disrupt customer service or the workplace, including when customers or coworkers would reasonably perceive it to express the employer’s own message.[140] For further discussion of how to analyze when accommodation of religious expression would pose an undue hardship, refer to the sections on Harassment at § 12-III-C and Accommodation at § 12-IV-C-6.
B. Customer Preference
An employer’s action based on the discriminatory preferences of others, including coworkers or customers, is unlawful.[141]
EXAMPLE 14
Employment Decision Based on Customer Preference
Harinder, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Harinder begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When he inquires, the crew complains that Harinder, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the September 11th attacks. The manager tells Harinder that he has to let him go because the customers’ discomfort is understandable. The manager has subjected Harinder to unlawful religious discrimination by taking an adverse action based on customers’ preference not to have a cashier of Harinder’s perceived religion. Harinder’s termination based on customer preference would violate Title VII regardless of whether he was – or was misperceived to be -- Muslim, Sikh, or any other religion.
C. Security Requirements
In general, an employer may adopt security requirements for its employees or applicants, provided they are adopted for nondiscriminatory reasons and are applied in a nondiscriminatory manner. For example, an employer may not require Muslim applicants to undergo a background investigation or more extensive security procedures because of their religion without imposing the same requirements on similarly situated applicants who are non-Muslim.[142]
D. Bona Fide Occupational Qualification
Title VII permits employers to hire and employ employees on the basis of religion if religion is “a bona fide occupational qualification [“BFOQ”] reasonably necessary to the normal operation of that particular business or enterprise.”[143] Religious organizations do not typically need to rely on this BFOQ defense because the “religious organization” exemption in Title VII permits them to prefer employees of a particular religion. See supra § 12-I-C-1. But for employers that are not religious organizations and seek to rely on the BFOQ defense to justify a religious preference, the defense is a narrow one and rarely successfully invoked.[144]
· Employer Best Practices ·
- Employers can reduce the risk of discriminatory employment decisions by establishing written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates.
- In conducting job interviews, employers can ensure nondiscriminatory treatment by asking the same questions of all applicants for a particular job or category of job and inquiring about matters directly related to the position in question.
- Employers can reduce the risk of religious discrimination claims by carefully and timely recording the accurate business reasons for disciplinary or performance‑related actions and sharing these reasons with the affected employees.
- When management decisions require the exercise of subjective judgment, employers can reduce the risk of discriminatory decisions by providing training to inexperienced managers and encouraging them to consult with more experienced managers or human resources personnel when addressing difficult issues.
- If an employer is confronted with customer biases, e.g., an adverse reaction to being served by an employee due to religious garb, the employer should consider engaging with and educating the customers regarding any misperceptions they may have and/or the equal employment opportunity laws.
12-III HARASSMENT
Overview: Religious harassment is analyzed and proved in the same manner as harassment based on other traits protected by Title VII—race, color, sex, and national origin. However, the facts of religious harassment cases may present unique considerations, especially where the alleged harassment is based on another employee’s religious practices. Such a situation may require an employer to reconcile its dual obligations to take prompt remedial action in response to alleged harassment and to accommodate certain employee religious expression.
A. Prohibited Conduct
As stated, Title VII makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”[145] “[A]lthough [Title VII] mentions specific employment decisions with immediate consequences, the scope of the prohibition is not limited to economic or tangible discrimination” and “covers more than terms and conditions in the narrow contractual sense.”[146] Title VII covers “environmental claims” as well,[147] including “harassment leading to noneconomic injury,”[148] but the conduct must be “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’”[149]
B. Types of Harassment Claims
The same Title VII principle applies whether the harassment is based on race, color, national origin, religion, or sex.[150] Like harassment based on other protected characteristics, religious harassment can take the form of (1) outright coercion, or an economic “quid pro quo,” in which the employee is pressured or coerced to abandon, alter, or adopt a religious practice as a condition of employment; [151] or of (2) a hostile work environment, in which the employee is subjected to unwelcome, religiously based statements or conduct so severe or pervasive that the employee objectively and subjectively finds the work environment to be hostile or abusive. [152] Employer liability for harassment is discussed below in § 12-III-B.
1. Religious Coercion
Title VII is violated when an employer or supervisor explicitly or implicitly coerces an employee to abandon, alter, or adopt a religious practice as a condition of receiving a job benefit or privilege or avoiding an adverse employment action. [153]
EXAMPLE 15
Religious Conformance Required for Promotion
Wamiq was raised as a Muslim but no longer practices Islam. His supervisor, Arif, is a very devout Muslim who tries to persuade Wamiq not to abandon Islam and advises him to follow the teachings of the Quran. Arif also says that if Wamiq expects to advance in the company, he should join Arif and other Muslims for weekly prayer sessions in Arif’s office. Notwithstanding this pressure to conform his religious practices in order to be promoted, Wamiq refuses to attend the weekly prayer sessions, and is subsequently denied the promotion for which he applied even though he is the most qualified. Arif’s conduct indicates that the promotion would have been granted if Wamiq had participated in the prayer sessions and had become an observant Muslim. Absent contrary evidence, the employer will be liable for harassment for conditioning Wamiq’s promotion on his adherence to Arif’s views of appropriate religious practice. [154]
Not promoting Wamiq would also be actionable as disparate treatment based on religion, unless the employer could demonstrate a non-religiously based, non-pretextual reason for denying Wamiq the promotion. In addition, if Arif had made the prayer sessions mandatory and Wamiq had asked to be excused on religious grounds, Arif would have been required to excuse Wamiq from the prayer sessions as a reasonable accommodation.
A claim of harassment based on coerced religious participation or non-participation, however, only arises where it was intended to make the employee conform to or abandon a religious belief or practice. By contrast, an employer would not violate Title VII if it required an employee to participate in a workplace activity that conflicts with the employee’s sincerely held religious belief if the employee does not request to be excused or if the employer demonstrates that accommodating the employee’s request to be excused would pose an undue hardship. [155] The same fact pattern may give rise to allegations of disparate treatment, harassment, and/or denial of accommodation. For example, terminating rather than accommodating an employee may give rise to allegations of both denial of accommodation and discriminatory discharge. [156] For discussion of the accommodation issue, see § 12-IV.
2. Hostile Work Environment
Title VII’s prohibition against religious discrimination includes prohibiting a hostile work environment because of religion. An unlawful hostile environment based on religion can take the form of physical or verbal harassment, which would include the unwelcome imposition of beliefs or practices contrary to the employee’s religion or lack thereof. A hostile work environment is created “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”[157] To establish a case of religious hostile work environment harassment, an employee must show: (1) that the harassment was based on his religion; (2) that the harassment was unwelcome; (3) that the harassment was sufficiently severe or pervasive to alter the conditions of employment by creating an objectively and subjectively hostile or abusive work environment; and (4) that there is a basis for employer liability. [158]
a. Based on Religion
To support a religious harassment claim, the adverse treatment must be based on the employee’s religion. [159] While verbally harassing conduct clearly is based on religion if it has religious content, harassment can also be based on religion even if religion is not explicitly mentioned. [160]
EXAMPLE 16
Harassing Conduct Based on Religion – Religion Mentioned
Mohammed is an Indian-born Muslim employed at a car dealership. Because he takes scheduled prayer breaks during the workday and observes Muslim dietary restrictions, his coworkers are aware of his religious beliefs. Upset by the anniversary of the 9/11 terrorist attacks, his coworkers and managers began making mocking comments about his religious dietary restrictions and need to pray during the workday. They repeatedly referred to him as “Taliban” or “Arab” and asked him “why don’t you just go back where you came from since you believe what you believe?” When Mohammed questioned why it was mandatory for all employees to attend a United Way meeting, his supervisor said: “This is America. That’s the way things work over here. This is not the Islamic country where you come from.” After this confrontation, the supervisor issued Mohammed a written warning stating that he “was acting like a Muslim extremist” and that the supervisor could not work with him because of his “militant stance.” This harassment is based on religion and national origin. [161]
EXAMPLE 17
Harassing Conduct Based on Religion – Religion Not Mentioned
Shoshanna is a Seventh-day Adventist whose work schedule was adjusted to accommodate her Sabbath observance, which begins at sundown each Friday. When Nicholas, the new head of Shoshanna’s department, was informed that he must accommodate her, he told a colleague that “anybody who cannot work regular hours should work elsewhere.” Nicholas then moved the regular Monday morning staff meetings to late Friday afternoon, repeatedly scheduled staff and client meetings on Friday afternoons, and often marked Shoshanna AWOL when she was not scheduled to work. In addition, Nicholas treated her differently than her colleagues by, for example, denying her training opportunities and loudly berating her with little or no provocation. Although Nicholas did not mention Shoshanna’s religion, the evidence shows that his conduct was because of Shoshanna’s need for religious accommodation, and therefore was based on religion. [162]
b. Unwelcome
Conduct is “unwelcome” when “it is uninvited and offensive or unwanted from the standpoint of the employee.” [163] It is not necessary in every case for the harassed employee to explicitly voice objection to the conduct (e.g., to confront the alleged harasser contemporaneously) for the conduct to be deemed unwelcome. In addition, since 1993 when the Supreme Court decided Harris v. Forklift Systems, Inc., and added “subjective hostility” to the hostile work environment analysis, some courts have found that the analysis of “unwelcomeness” and “subjective hostility” overlap. [164] For example, where an employee is visibly upset by repeated mocking use of derogatory terms or comments about his religious beliefs or observance by a colleague, it may be evident that the conduct is unwelcome and also subjectively hostile. [165] This would stand in contrast to a situation where the same two employees were engaged in a consensual conversation that involves a spirited debate of religious views, but neither employee indicates to the other, or to the employer, that he or she is upset by it. For a discussion on reporting to the employer, see infra § 12-III‑B.
The distinction between welcome and unwelcome conduct is especially important in the religious context in situations involving proselytizing to employees who have not invited such conduct. Where a religious employee attempts to persuade another employee of the correctness of his or her belief, the conduct may or may not be welcome. When an employee expressly objects to particular religious expression, unwelcomeness is evident. [166]
EXAMPLE 18
Unwelcome Conduct
Beth’s colleague, Bill, repeatedly talked to her at work about her prospects for salvation. For several months, she did not object and discussed the matter with him. When he persisted even after she told him that he had “crossed the line” and should stop having non-work-related conversations with her, the conduct was clearly unwelcome. [167]
c. Severe or Pervasive
Harassment is actionable if, as a whole, the conduct is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” As the Supreme Court explained with respect to Title VII in Harris v. Forklift Systems, Inc., 510 U.S. at 21:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.
Thus, harassing conduct based on the employee’s religion is actionable when it is sufficiently severe or pervasive to create an objectively and subjectively hostile work environment. A hostile work environment claim may encompass any hostile conduct that affects the complainant’s work environment, including employer conduct that may be independently actionable. Whether a reasonable person would perceive the conduct as abusive turns on common sense and context, looking at the totality of the circumstances. [168] All of the alleged incidents must be “considered cumulatively in order to obtain a realistic view of the work environment.” [169] Relevant factors “may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or merely an offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” [170] But “no single factor is required.” [171]
EXAMPLE 19
Reasonable Person Perceives Conduct to Be Hostile
The president of Printing Corp. regularly mocked and berated an employee who asked for Sundays off to attend Mass. Although he granted the time off, the president teased the employee for refusing to look at a Playboy magazine, called him a “religious freak,” and used vulgar sexual language when speaking to or about the employee. He mocked him for “following the Pope around” and made sexual comments about the Virgin Mary. A reasonable person could perceive this to be a religiously hostile work environment. [172]
To “alter the conditions of employment,” conduct need not cause economic or psychological harm. [173] It also need not impair work performance, discourage employees from remaining on the job, or impede their advancement. [174] The presence of one or more of these factors would buttress the claim, but is not required. [175]
However, Title VII is not a “‘general civility code,’” and does not render all insensitive or offensive comments, petty slights, and annoyances illegal. [176] Isolated incidents (unless extremely serious) will not rise to the level of illegality. [177]
EXAMPLE 20
Insensitive Comments Not Enough to Constitute Hostile Environment
Marvin is an Orthodox Jew who was hired as a radio show host. When he started work, a coworker, Stacy, pointed to his yarmulke and asked, “Will your headset fit over that?” On a few occasions, Stacy made other remarks about the yarmulke, such as: “Nice hat. Is that a beanie?” and “Do they come in different colors?” Although the coworker’s comments about his yarmulke were insensitive, they were not, standing alone, sufficiently severe or pervasive to create a hostile work environment for Marvin. [178]
EXAMPLE 21
Isolated Comments Not Enough to Constitute Hostile Environment
Bob, a supervisor, occasionally allowed spontaneous and voluntary prayers by employees during office meetings. During one meeting, he referenced Bible passages related to “slothfulness” and “work ethics.” Amy complained that Bob’s comments and the few instances of allowing voluntary prayers during office meetings created a hostile environment. The comments did not create an actionable harassment claim. They were not severe, and because they occurred infrequently, they were not sufficiently pervasive to state a claim. [179]
Severity and pervasiveness need not both be present, and they operate inversely. The more severe the harassment, the less frequently the incidents need to recur. At the same time, incidents that may not, individually, be severe may become unlawful if they occur frequently or in proximity. [180]
Although a single incident will seldom create an unlawfully hostile environment, it may do so if it is unusually severe, such as where it involves a physical threat. [181]
EXAMPLE 22
One Instance of Physically Threatening Conduct Sufficiently Severe
Ihsaan is a Muslim. Shortly after the terrorist attacks on September 11, 2001, Ihsaan came to work and found the words “I’m tired of you Muslims. You’re all terrorists! We will avenge the victims!! Your life is next!” scrawled in red marker on his office door. Because of the timing of the statement and the direct physical threat, this incident, alone, is sufficiently severe to create an objectively hostile and/or abusive work environment.[182]
EXAMPLE 23
Isolated Practices Not Enough to Constitute Hostile Environment
Tran owns a restaurant serving Asian-fusion cuisine. The restaurant is decorated with Vietnamese art depicting scenes from traditional religious stories. Tran keeps a shrine of Buddha in the corner by the cash register and likes to play traditional Vietnamese music and chants. Linda has worked as a waitress in the restaurant for a few months and complains that she feels harassed by the religious symbols and music. As long as Tran does not discriminate on the basis of religion in his hiring or supervision of employees, the religious expression would likely not amount to practices that are severe or pervasive enough to constitute a hostile work environment based on religion.
EXAMPLE 24
Persistent Offensive Remarks Constitute Hostile Environment
Betty is a Mormon. During a disagreement regarding a joint project, a coworker, Julian, tells Betty that she doesn’t know what she is talking about and that she should “go back to Salt Lake City.” When Betty subsequently proposes a different approach to the project, Julian tells her that her suggestions are as “flaky” as he would expect from “her kind.” When Betty tries to resolve the conflict, Julian tells her that if she is uncomfortable working with him, she can either ask to be transferred, or she can “just pray about it.” Over the next six months, Julian regularly makes similar negative references to Betty’s religion. His persistent offensive remarks create a hostile environment.
Religious expression that is directed at an employee can become severe or pervasive, whether or not the content is intended to be insulting or abusive. Thus, for example, persistently reiterating atheist views to a religious employee who has asked that it stop can create a hostile environment, just as persistently proselytizing to an atheist employee or an employee with different religious beliefs who has asked that it stop can create a hostile work environment. The extent to which the expression is directed at the employee bringing the Title VII claim can be relevant to determining whether or when a reasonable employee would have perceived it to be hostile. [183] That said, even conduct that is not directed at an employee can transform a work environment into a hostile or abusive one. [184]
A coworker having a difference of opinion with an employee’s religious views does not establish a hostile work environment when there is no other evidence of harassment. This would include when a coworker disagrees with the religious views that an employee expresses outside of the workplace, for example on social media, when there is no evidence it is linked to the workplace.[185]
EXAMPLE 25
No Hostile Environment from Comments That Are Not Abusive and Not Directed at Complaining Employee
While eating lunch in the company cafeteria, Clarence often overhears conversations between his coworkers Dharma and Khema. Dharma, a Buddhist, is discussing meditation techniques with Khema, who is interested in Buddhism. Clarence strongly believes that meditation is an occult practice that offends him, and he complains to their supervisor that Dharma and Khema are creating a hostile environment for him. Such conversations taking place in the cafeteria do not constitute severe or pervasive religious harassment of Clarence, particularly given that they do not insult other religions and they were not directed at him.
C. Employer Liability
Overview: An employer is always liable for a supervisor’s harassment if it results in a tangible employment action. If the supervisor’s harassment does not result in tangible employment action, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements: (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. An employer is liable for a coworker’s or non-employee’s harassment in two circumstances: (a) if it unreasonably failed to prevent the harassment, or (b) if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.
An employer will be liable for a hostile work environment that an employee endures if vicarious liability under common law agency principles is found to apply.[186] As explained more fully below, whether vicarious liability applies depends on the employment status of the harasser (i.e., a manager or coworker), whether a tangible employment action was the result of the harassment, the employer’s policies, whether the employer was aware or should have been aware of the harassment, and what action, if any, the employer took when it learned of the harassment.
1. Harassment by Alter-Ego
Under agency-law principles, an employer is automatically liable for religious harassment by an agent, even if it does not result in a tangible employment action, if “the agent’s high rank in the company makes him or her the employer’s alter ego.” [187] If the harasser is of a sufficiently high rank to fall “within that class of an employer organization’s officials who may be treated as the organization’s proxy,” which would include officials such as a company president, owner, partner, or corporate officer, the harassment is automatically imputed to the employer and the employer cannot assert the affirmative defense. [188]
2. Harassment by Supervisors or Managers
Employers are automatically liable for religious harassment by a supervisor with authority over a plaintiff when the harassment results in a tangible employment action such as a denial of promotion, demotion, discharge, or undesirable reassignment. [189] If the harassment by such a supervisor does not result in a tangible employment action, the employer can attempt to prove, as an affirmative defense to liability, that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm. [190]
EXAMPLE 26
Supervisory Harassment with Tangible Employment Action
George, a manager in an accounting firm, is an atheist who has frequently been heard to say that he thinks anyone who is deeply religious is a zealot with his own agenda and cannot be trusted to act in the best interests of the clients. George particularly ridicules Debra, a devoutly observant Jehovah’s Witness, and consistently withholds the most desirable assignments from her. He denies her request for a promotion to a more prestigious job in another division, saying that he can’t let her “spread that religious poppycock any further.” Debra files a religious harassment charge. The firm asserts in its position statement that it is not liable because Debra never made a complaint under its internal anti-harassment policy and complaint procedures. Because the harassment was by a supervisor of Debra’s and culminated in a tangible employment action (failure to promote), the employer is liable for the harassment even if it has an effective anti-harassment policy, and even if Debra never complained. If George is a “proxy” of the firm, then the firm is also liable for the harassment even in the absence of a tangible employment action. Additionally, the denial of promotion would be actionable as disparate treatment based on religion.
EXAMPLE 27
Supervisory Harassment Without Tangible Employment Action
Jennifer’s employer, XYZ, had an anti-harassment policy and complaint procedure that covered religious harassment. All employees were aware of it because XYZ widely and regularly publicized it. Despite his knowledge of the policy, Jennifer’s supervisor frequently mocked her religious beliefs. When Jennifer told him that his comments bothered her, he told her that he was just kidding and she should not take everything so seriously. Jennifer never reported the supervisor’s conduct. When one of Jennifer’s coworkers eventually reported the supervisor’s harassing conduct under the employer’s antiharassment procedure, the employer promptly investigated and acted effectively to stop the supervisor’s conduct. Jennifer then filed a religious harassment charge. Because the harassment of Jennifer did not culminate in a tangible employment action, XYZ will not be liable for the harassment if it can show both that Jennifer’s failure to utilize XYZ’s available complaint mechanisms was unreasonable, and that XYZ exercised reasonable care to prevent and promptly correct the harassment. The employer should be able to make the “promptly correct” showing, because it took prompt and reasonable corrective measures once it did learn of the harassment. [191]
3. Harassment by Coworkers
An employer is liable for harassment by coworkers where the employer: (1) unreasonably failed to prevent the harassment; [192] or (2) knew or should have known about the harassment, and failed to take prompt and appropriate corrective action. [193]
EXAMPLE 28
Harassment by Coworkers
John, who is a Christian Scientist, shares an office with Rick, a Mormon. Rick repeatedly tells John that he is practicing a false religion, and that he should study Mormon literature. Despite John’s protestations that he is very happy with his religion and has no desire to convert, Rick regularly leaves religious pamphlets on John’s desk and tries to talk to him about religion. After asking Rick to stop the behavior to no avail, John complains to their immediate supervisor, who dismisses John’s complaint on the ground that Rick is a nice person who believes that he is just being helpful. If the harassment continues, the employer is liable because it knew, through the supervisor, about Rick’s harassing conduct but failed to take prompt and appropriate corrective action. [194]
4. Harassment by Non-Employees
An employer is liable for harassment by non-employees where the employer: (1) unreasonably failed to prevent the harassment; or (2) knew or should have known about the harassment and failed to take prompt and appropriate corrective action. [195]
EXAMPLE 29
Harassment by a Contractor
Tristan works for XYZ, a contractor that manages Crossroads Corporation’s mail room. When Tristan delivers the mail to Julia, the Crossroads receptionist, he gives her religious tracts, attempts to convert her to his religion, tells her that her current religious beliefs will lead her to Hell, and persists even after she tells him to stop. Julia reports Tristan’s conduct to her supervisor, who tells her that he cannot do anything because Tristan does not work for Crossroads. If the harassment continues, the supervisor’s failure to act is likely to subject Crossroads to liability because Tristan’s conduct is severe or pervasive and based on religion, and Crossroads failed to take corrective action within its control after Julia reported the harassment. Options available to Julia’s supervisor or the appropriate individual in the supervisor’s chain of command might include initiating a meeting with Tristan and XYZ management regarding the harassment and demanding that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different mail carrier be assigned to Julia’s route.
D. Special Considerations for Employers When Balancing Anti-Harassment and Accommodation Obligations With Respect to Religious Expression
While some employees believe that religion is intensely personal and private, others are open about sharing or outwardly expressing their religion. In addition, there are employees who may believe that they have a religious obligation to share their views and to try to persuade coworkers of the truth of their religious beliefs, i.e., to proselytize. Certain private employers, too, whether or not they are religious organizations, may wish to express their religious views and share their religion with their employees. [196] As noted above, however, some employees may perceive proselytizing or other religious expression as unwelcome based on their own religious beliefs and observances, or lack thereof. In an increasingly pluralistic society, the mix of divergent beliefs and practices can give rise to conflicts requiring employers to balance the rights of employers and employees who wish to express their religious beliefs with the rights of other employees to be free from religious harassment under the foregoing Title VII harassment standards.
As discussed in more detail in § IV-C-6 of this document, an employer never has to accommodate expression of a religious belief in the workplace where such an accommodation could potentially constitute harassment of coworkers, because that would pose an undue hardship for the employer. [197] Nor does Title VII require an employer to accommodate an employee’s desire to impose his religious beliefs upon his coworkers. [198] Therefore, while Title VII requires employers to accommodate an employee’s sincerely held religious belief in engaging in religious expression (e.g. proselytizing) in the workplace, an employer does not have to allow such expression if it imposes an undue hardship on the operation of the business. For example, it would be an undue hardship for an employer to accommodate proselytizing by an employee if the proselytizing had adverse effects on employee morale or workplace productivity.
Because employers are responsible for maintaining a nondiscriminatory work environment, they can be held liable for perpetrating or tolerating religious harassment of their employees. An employer can reduce the chance that employees will engage in conduct that rises to the level of unlawful harassment by implementing an anti-harassment policy and an effective procedure for reporting, investigating, and correcting harassing conduct. [199] Even if the policy does not prevent all such conduct, it could limit the employer’s liability where the employee does not report conduct rising to the level of illegal harassment.
However, “[d]iscussion of religion in the workplace is not illegal.” [200] In fact, Title VII violations may result if an employer tries to avoid potential coworker objections to employee religious expression by preemptively banning all religious communications in the workplace or discriminating against unpopular religious views, since Title VII requires that employers not discriminate based on religion and that they reasonably accommodate employees’ sincerely held religious observances, practices, and beliefs as long as accommodation poses no undue hardship. [201]
· Employer Best Practices ·
- Employers should 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.
- Employers should encourage managers to intervene proactively and discuss whether particular religious expression is welcome if the manager believes the expression is likely to be construed as unwelcome to a reasonable person.
- Employers should allow religious expression among employees at least to the same extent that they allow other types of personal expression that are not harassing or disruptive to the operation of the business. [202]
- Once an employer is on notice that religious expression by an employee is unwelcome to another employee, the employer should investigate and, if appropriate, take steps to ensure that the expression in question does not become sufficiently severe or pervasive to create a hostile work environment.
- If harassment is perpetrated by a non-employee assigned by a contractor, vendor, or client, the supervisor or other appropriate individual in the impacted employee’s chain of command should initiate a meeting with the contractor, vendor, or client regarding the harassment and require that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different individual be assigned.
- To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of objectively abusive or insulting conduct, even absent a complaint.
- While supervisors are permitted to engage in certain religious expression, they should avoid expression that might – due to their supervisory authority – reasonably be perceived by subordinates as coercive, even when not so intended.
· Employee Best Practices ·
- Where they feel comfortable doing so, employees who find harassing workplace religious conduct directed at them unwelcome should inform the individual engaging in the conduct that they wish it to stop. If the conduct does not stop, employees should report it to their supervisor or other appropriate company official in accordance with the procedures established in the company’s anti-harassment policy.
- Employees who do not wish personally to confront an individual who is engaging in unwelcome religious or anti-religious conduct should report the conduct to their supervisor or other appropriate company official in accordance with the company’s anti-harassment policy.
12-IV REASONABLE ACCOMMODATION
Overview: Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. [203] The Title VII “undue hardship” defense is defined differently than the “undue hardship” defense for disability accommodation under the Americans with Disabilities Act (ADA). Title VII’s undue hardship defense to providing religious accommodation has been defined by the Supreme Court as requiring a showing that the proposed accommodation in a particular case poses “more than a de minimis” cost or burden. This is a lower standard for an employer to meet than undue hardship under the ADA, which is defined in that statute as “an action requiring significant difficulty or expense.” [204]
“Title VII requires otherwise-neutral policies to give way to the need for an accommodation.” [205] An individual alleging the denial of a religious accommodation is generally seeking an adjustment to a neutral work rule that infringes on the employee’s ability to practice his religion. [206] “The accommodation requirement is ‘plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others.’” [207]
A. Religious Accommodation
A religious accommodation is an adjustment to the work environment that will allow the employee to comply with his or her religious beliefs. An employer need not provide a reasonable accommodation if doing so would cause undue hardship on the conduct of the employer’s business, which the Supreme Court has interpreted to mean an accommodation that would require the employer to bear more than a de minimis cost or burden. [208] The employer’s duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement that creates a conflict so that the employee or applicant will be able to observe or practice his or her religion. Accommodation requests often relate to work schedules, dress and grooming, or religious expression or practice while at work. [209] The Commission’s position is that the denial of reasonable religious accommodation absent undue hardship is actionable even if the employee has not separately suffered an independent adverse employment action, such as being disciplined, demoted, or discharged as a consequence of being denied accommodation. [210] This is because requiring him to work without religious accommodation where a work rule conflicts with his religious beliefs necessarily alters the terms and conditions of his employment for the worse.[211] However, the courts are split on this question. [212]
1. Notice of the Conflict Between Religion and Work
Employers need not provide an accommodation unless they are on notice that one is needed for religious purposes.[213] Typically, the employer will advise the applicant or employee of its policies or a particular work requirement, and in response the applicant or employee will indicate that an accommodation is needed for religious reasons. In some instances, even absent an applicant’s or employee’s request, the employer will be on notice that the observance or practice is religious and conflicts with a work policy, and therefore that accommodation is or could be needed.[214] In such circumstances, it would violate Title VII for an employer to fail to provide a reasonable accommodation unless it proves that doing so would pose an undue hardship.[215]
In addition, even in the absence of any notice that a religious accommodation is needed, an employer violates Title VII if it takes an adverse action against an applicant or employee (such as failing to hire) based on its belief that the applicant or employee might need a reasonable religious accommodation, unless the employer proves that such an accommodation would have imposed an undue hardship.[216]
When requesting accommodation, the applicant or employee need not use any “magic words,” such as “religious accommodation” or “Title VII.” The employer must have enough information to make the employer aware that there exists a conflict between the applicant’s or employee’s religious observance, practice, or belief and a requirement for applying for or performing the job. [217] If the employer reasonably needs more information, the employer and the applicant or employee should discuss the request. The applicant or employee may need to explain the religious nature of the belief, observance, or practice at issue, and cannot assume that the employer will already know or understand it. [218] Similarly, the employer should not assume that a request is invalid simply because it is based on religious beliefs or practices with which the employer is unfamiliar, but should ask the applicant or employee to explain the religious nature of the practice and the way in which it conflicts with a work requirement. In determining if a conflict exists, it is irrelevant that the employer does not view the work requirement as implicating a religious belief, or that most people of the applicant’s or employee’s faith would not; it is the applicant’s or employee’s own religious beliefs that are relevant. [219]
EXAMPLE 30
Failure to Advise Employer That Request Is Due to Religious Practice or Belief
Jim agreed to take his employer’s drug test but was terminated because he refused to sign the accompanying consent form. After his termination, Jim filed a charge alleging that the employer failed to accommodate his religious objection to swearing an oath. Until it received notice of the charge, the employer did not know that Jim’s refusal to sign the form was based on his religious beliefs. Because the employer was not notified of the conflict at the time Jim refused to sign the form, or at any time prior to Jim’s termination, it did not have an opportunity to offer to accommodate him. The employer has not violated Title VII. [220]
2. Discussion of Request
Although an employer is not required by Title VII to conduct a discussion with an employee before making a determination on an accommodation request, as a practical matter it can be important to do so. Both the employer and the employee have roles to play in resolving an accommodation request. In addition to placing the employer on notice of the need for accommodation, the employee should cooperate with the employer’s efforts to determine whether a reasonable accommodation can be granted. Once the employer becomes aware of the employee’s religious conflict, the employer should obtain promptly whatever additional information is needed to determine whether a reasonable accommodation is available without posing an undue hardship on the operation of the employer’s business. [221] This typically involves the employer and employee mutually sharing information necessary to process the accommodation request. Employer‑employee cooperation and flexibility are key to the search for a reasonable accommodation. If the accommodation solution is not immediately apparent, the employer should discuss the request with the employee to determine what accommodations might be effective. If the employer requests additional information reasonably needed to evaluate the request, the employee should provide it.
Failure to confer with the employee is not an independent violation of Title VII. But as a practical matter, such failure can have adverse legal consequences. For example, in some cases where an employer has made no effort to act on an accommodation request, courts have found that the employer lacked the evidence needed to meet its burden of proof to establish that the plaintiff’s proposed accommodation would actually have posed an undue hardship. [222]
Likewise, employees should cooperate with an employer’s requests for reasonable information. For example, if an employee requested a schedule change to accommodate daily prayers, the employer might need to ask for information about the religious observance, such as the time and duration of the daily prayers, in order to determine if accommodation can be granted without posing an undue hardship on the operation of the employer’s business. Moreover, even if the employer does not grant the employee’s preferred accommodation but instead provides a reasonable alternative accommodation, the employee must cooperate by attempting to meet his religious needs through the employer’s proposed accommodation if possible. [223]
Where the accommodation request itself does not provide enough information to enable the employer to make a determination, and the employer has a bona fide doubt as to the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and that the belief or practice gives rise to the need for the accommodation. [224] Whether an employer has a reasonable basis for seeking to verify the employee’s stated beliefs will depend on the facts of a particular case.
EXAMPLE 31
Sincerity of Religious Belief Questioned
Bob, who had been a dues-paying member of the CDF union for fourteen years, had a work-related dispute with a union official and one week later asserted that union activities were contrary to his religion and that he could no longer pay union dues. The union doubted whether Bob’s request was based on a sincerely held religious belief, given that it appeared to be precipitated by an unrelated dispute with the union, and he had not sought this accommodation in his prior fourteen years of employment. In this situation, the union can require him to provide additional information to support his assertion that he sincerely holds a religious conviction that precludes him from belonging to – or financially supporting – a union. [225]
When an employer requests additional information, employees should provide information that addresses the employer’s reasonable doubts. That information need not, however, take any specific form. For example, written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief such that third-party verification is unnecessary. Further, since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is requested, it does not have to come from a clergy member or fellow congregant, but rather could be provided by others who are aware of the employee’s religious practice or belief. [226]
An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation. By the same token, employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.
EXAMPLE 32
Clarifying a Request
Diane requests that her employer schedule her for “fewer hours” so that she can “attend church more frequently.” The employer denies the request because it is not clear what schedule Diane is requesting or whether the change is sought due to a religious belief or practice. While Diane’s request lacked sufficient detail for the employer to make a final decision, it was sufficient to constitute a religious accommodation request. Rather than denying the request outright, the employer should have obtained the information from Diane that it needed to make a decision. The employer could have inquired of Diane precisely what schedule change was sought and for what purpose, and how her current schedule conflicted with her religious practices or beliefs. Diane would then have had an obligation to provide sufficient information to permit her employer to make a reasonable assessment of whether her request was based on a sincerely held religious belief, the precise conflict that existed between her work schedule and church schedule, and whether granting an accommodation would pose an undue hardship on the employer’s business.
3. What is a “Reasonable” Accommodation?
Although an employer never has to provide an accommodation that would pose an undue hardship, see infra § 12‑IV-B, it discharges its accommodation duty if it provides a “reasonable” accommodation. An adjustment offered by an employer is not a “reasonable” accommodation if it merely lessens rather than eliminates the conflict between religion and work, provided that eliminating the conflict would not impose an undue hardship. [227] If all accommodations eliminating such a conflict would impose an undue hardship on an employer, the employer must reasonably accommodate the employee’s religious practice to the extent that it can without suffering an undue hardship, even though such an accommodation would be “partial” in nature. [228] To qualify as a reasonable accommodation, an adjustment also must not discriminate against the employee or unnecessarily disadvantage the employee’s terms, conditions, or privileges of employment. [229]
Where there is more than one reasonable accommodation that would not pose an undue hardship, the employer is not obliged to provide the accommodation preferred by the employee. [230] However, an employer’s proposed accommodation will not be “reasonable” if a more favorable accommodation is provided to other employees for non-religious purposes, [231] or, for example, if it requires the employee to accept a reduction in pay rate or some other loss of a benefit or privilege of employment and there is an alternative accommodation that does not do so. [232]
Ultimately, reasonableness is a fact-specific determination. “The reasonableness of an employer’s attempt at accommodation cannot be determined in a vacuum. Instead, it must be determined on a case‑by‑case basis; what may be a reasonable accommodation for one employee may not be reasonable for another . . . . ‘The term “reasonable accommodation” is a relative term and cannot be given a hard and fast meaning. Each case . . . necessarily depends upon its own facts and circumstances, and comes down to a determination of “reasonableness” under the unique circumstances of the individual employer-employee relationship.’” [233]
EXAMPLE 33
Employer Violates Title VII if it Offers Only Partial Accommodation Where Full Accommodation Would Not Pose an Undue Hardship
Rachel, who worked as a ticket agent at a sports arena, asked not to be scheduled for any Friday night or Saturday shifts, to permit her to observe the Jewish Sabbath from sunset on Friday through sunset on Saturday. The arena wanted to give Rachel this time off only every other week. The arena’s proposed adjustment does not fully eliminate the religious conflict and therefore cannot be deemed a reasonable accommodation in the absence of a showing that giving Rachel the requested time off every week poses an undue hardship for the arena. If the arena makes that showing, it must still accommodate Rachel’s religious practice to the extent it can without suffering an undue hardship, which could include granting some, but not all, Friday evenings and/or Saturdays off. [234]
EXAMPLE 34
Employer Not Obligated to Provide Employee’s Preferred Accommodation
Tina, a newly hired part-time store cashier whose sincerely held religious belief is that she should refrain from work on Sunday as part of her Sabbath observance, asked her supervisor never to schedule her to work on Sundays. Tina specifically asked to be scheduled to work Saturdays instead. In response, her employer offered to allow her to work on Thursdays, which she found inconvenient because she takes a college class on that day. Even if Tina preferred a different schedule, the employer is not required to grant Tina’s preferred accommodation. [235]
EXAMPLE 35
Accommodation by Transfer
Yvonne, a member of the Pentecostal faith, was employed as a nurse at a hospital. When she was assigned to the Labor and Delivery Unit, she advised the nurse manager that her faith forbids her from participating directly or indirectly in ending a life, and that this proscription prevents her from assisting with abortions. She asked the hospital to accommodate her religious beliefs by allowing her to trade assignments with other nurses in the Labor and Delivery Unit as needed. The hospital concluded that, due to staffing cuts and risks to patients’ safety, it could not accommodate Yvonne within the Labor and Delivery Unit because there were not enough staff members able and willing to trade with her. The hospital instead offered to permit Yvonne to transfer, without a reduction in pay or benefits, to a vacant nursing position in the Newborn Intensive Care Unit, which did not perform abortion procedures. As described below,[236] an employee should be accommodated in his or her current position absent an undue hardship. Here, the hospital could not accommodate Yvonne in her current position due to staffing cuts and risks to patient safety, so the hospital’s solution of a lateral transfer complies with Title VII. [237] If the hospital is government run or receives federal funds, it could also have obligations to accommodate Yvonne under federal laws protecting conscience rights of its health care employees. [238]
Title VII is violated by an employer’s failure to reasonably accommodate even if, to avoid adverse consequences, an employee continues to work after his or her accommodation request is denied. “[A]n employee who temporarily gives up his [or her] religious practice to submit to employment requirements [does not] waive[] his [or her] discrimination claim.” [239] Thus, the fact that an employee acquiesces to the employer’s work rule, continuing to work without an accommodation after the employer has denied the request, should not defeat the employee’s legal claim. [240]
In addition, the obligation to provide reasonable accommodation absent undue hardship is a continuing obligation. Employers should be aware that an employee’s religious beliefs and practices may evolve or change over time, and that this may result in requests for additional or different accommodations. [241] Similarly, the employer has the right to discontinue a previously granted accommodation that is no longer utilized for religious purposes or subsequently poses an undue hardship.
B. Undue Hardship
An employer can refuse to provide a reasonable accommodation if it would pose an undue hardship. The Supreme Court has defined “undue hardship” for purposes of Title VII as imposing “more than a de minimis cost” on the operation of the employer’s business. [242] The concept of “more than de minimis cost” is discussed below in sub-section 2. Although the employer’s showing of undue hardship under Title VII is easier than under the ADA, the burden of persuasion is still on the employer. [243] If an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.
1. Case-by-Case Determination
The determination of whether a particular proposed accommodation imposes an undue hardship “must be made by considering the particular factual context of each case.” [244] Relevant factors may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation. [245] For example, an employer with multiple facilities might be better able than another employer to accommodate a Muslim employee who seeks a transfer to a location with a nearby mosque that he can attend during his lunch break.
To prove undue hardship, the employer will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. [246] An employer cannot rely on hypothetical hardship when faced with an employee’s religious obligation that conflicts with scheduled work, but rather should rely on objective information. [247] A mere assumption that many more people with the same religious practices as the individual being accommodated may also seek accommodation is not evidence of undue hardship.
2. More than “De Minimis Cost”
To establish undue hardship, the employer must demonstrate that the accommodation would require the employer “to bear more than a de minimis cost.” [248] However, “‘[u]ndue hardship is something greater than hardship.’”[249] Factors to be considered include “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.” [250] Generally, the payment of administrative costs necessary for an accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes, or infrequent or temporary payment of premium wages (e.g., overtime rates) while a more permanent accommodation is sought, will not constitute more than a de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally require more than de minimis cost to the employer. [251]
Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, [252] infringes on other employees’ job rights or benefits, [253] impairs workplace safety, [254] or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. [255] Whether the proposed accommodation conflicts with another law will also be considered. [256]
EXAMPLE 36
Religious Need Can Be Accommodated
David wears long hair pursuant to his Native American religious beliefs. David applies for a job as a server at a restaurant which requires its male employees to wear their hair “short and neat,” in order to provide a certain image to its customers. When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs and offers to wear it held up with a clip or under a hair net. The manager refuses this accommodation and denies David the position based on his long hair. Since the evidence indicated that David could have been accommodated, without undue hardship, by wearing his hair in a ponytail or held up with a clip, the employer will be liable for denial of reasonable accommodation and discriminatory failure to hire.
EXAMPLE 37
Safety Risk Poses Undue Hardship
Patricia alleges she was terminated from her job as a steel mill laborer because of her religion (Pentecostal) after she notified her supervisor that her faith prohibits her from wearing pants, as required by the mill’s dress code, and requested as an accommodation to be permitted to wear a skirt. Management contends that the dress code is essential to the safe and efficient operation of the mill and has evidence that it was imposed following several accidents in which skirts worn by employees were caught in the same type of mill machinery that Patricia operates. Because the evidence establishes that wearing pants is truly necessary for safety reasons, the accommodation requested by Patricia poses an undue hardship.[257]
3. Seniority Systems and Collectively Bargained Rights
A proposed religious accommodation poses an undue hardship if it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement (CBA). [258] Of course, the mere existence of a conflict between the requested accommodation and a seniority system or CBA does not relieve the employer of the duty to attempt reasonable accommodation of its employees’ religious practices; the question is whether an accommodation can be provided without violating the seniority system or CBA. [259] Allowing voluntary substitutes and swaps does not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system or CBA. [260] Employer and employee arrangements regarding voluntary substitutes and swaps are discussed in more detail in section 12-IV-C-2.
EXAMPLE 38
Schedules Based on a Seniority System or Collectively Bargained Rights
Susan, an employee of Quick Corp., asks not to work on her Sabbath. Quick Corp. and its employees’ union have negotiated a CBA which provides that weekend shifts will rotate evenly among employees. If Susan can find qualified coworkers voluntarily willing to swap shifts to accommodate her sincerely held religious beliefs, the employer could be found liable for denial of reasonable accommodation if it refuses to permit the swap to occur. The existence of the collectively bargained system for determining weekend shifts should not result in the denial of accommodation if a voluntary swap can be arranged by the employee without violating the system or otherwise posing an undue hardship. The result would be the same if Quick Corp. had a unilaterally imposed bona fide seniority system (rather than a CBA) pursuant to which weekend shifts are determined.
However, if other employees were unwilling to swap shifts or were otherwise harmed by not requiring Susan to work on the shift in question, or the employer would be subject to other operational costs that were more than de minimis by allowing Susan to swap shifts, then the employer can demonstrate undue hardship. [261]
4. Coworker Complaints
Although infringing on coworkers’ abilities to perform their duties [262] or subjecting coworkers to a hostile work environment [263] will generally constitute undue hardship, the general disgruntlement, resentment, or jealousy of coworkers will not. [264] Undue hardship requires more than proof that some coworkers complained or are offended by an unpopular religious belief or by alleged “special treatment” afforded to the employee requesting religious accommodation; a showing of undue hardship based on coworker interests generally requires evidence that the accommodation would actually infringe on the rights of coworkers or cause disruption of work. [265] Applying this standard, it would be an undue hardship for an employer to accommodate religious expression that is unwelcome potential harassment based on race, color, sex, national origin, religion, age, disability, or genetic information, or based on its own internal anti-harassment policy, and it may take action consistent with its obligations under Title VII and the other EEO laws. See also §§ 12‑III-C, supra, and 12‑IV-C-6, infra (discussing complaints regarding proselytizing and other forms of religious expression).
5. Security Considerations
If a religious practice conflicts with a legally mandated federal, state, or local security requirement, an employer need not accommodate the practice because doing so would create an undue hardship. If a security requirement has been unilaterally imposed by the employer and is not required by law or regulation, courts will engage in a fact-specific inquiry to decide whether it would be an undue hardship to modify or eliminate the requirement to accommodate an employee who has a religious conflict.
EXAMPLE 39
Accommodation Implicating Security Concerns
Patrick is employed as a correctional officer at a state prison, and his brother William is employed as a grocery store manager. Both Patrick and William seek permission from their respective employers to wear a fez at work as an act of faith on a particular holy day as part of their religious expression. Both employers deny the request, citing a uniformly applied workplace policy prohibiting employees from wearing any type of head covering. The prison’s policy is based on security concerns, supported by evidence, that head coverings may be used to conceal drugs, weapons, or other contraband, and may spark internal violence among prisoners. The grocery store’s policy is based on a stated desire that all employees wear uniform clothing so that they can be readily identified by customers. If both brothers file EEOC charges challenging the denials of their accommodation requests, the EEOC likely will not find reasonable cause in Patrick’s case because the prison’s denial of his request was based on legitimate, evidence-based security considerations posed by the particular religious garb sought to be worn. The EEOC likely will find cause in William’s case because there is no indication it would pose an undue hardship for the grocery store to modify its policy with respect to his request. [266]
EXAMPLE 40
Kirpan
Harvinder, a Sikh who works in a hospital, wears a small sheathed kirpan (religious article of faith resembling a knife) strapped and hidden underneath her clothing, as a symbol of her religious commitment to defend truth and moral values. When Harvinder’s supervisor, Bill, learned about her kirpan from a coworker, he instructed Harvinder not to wear it at work because it violated the hospital policy against weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh Code of Conduct and gave him literature explaining that the kirpan is a religious article of faith, not a weapon. She also showed him the kirpan, allowing him to see that it was no sharper than scissors, box cutters, cake knives, paper cutters, and other secular objects in the workplace. Nevertheless, Bill told her that she would be terminated if she continued to wear the kirpan at work. Absent evidence that allowing Harvinder to wear the kirpan would pose an undue hardship in the factual circumstances of this case, the hospital is liable for denial of accommodation.
C. Common Methods of Accommodation in the Workplace
Under Title VII, an employer or other covered entity may use a variety of methods to provide reasonable accommodations to its employees. The most common methods are: (1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers or changes in job assignment; and (4) modifying workplace practices, policies, or procedures.
1. Scheduling Changes
An employer may be able to reasonably accommodate an employee by allowing flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunch time in exchange for early departure, staggered work hours, and other means to enable an employee to make up time lost due to the observance of religious practices. [267] However, EEOC’s position is that it is insufficient merely to eliminate part of the conflict, unless eliminating the conflict in its entirety poses an undue hardship. [268]
EXAMPLE 41
Break Schedules/Prayer at Work
Rashid, a janitor, tells his employer on his first day of work that he practices Islam and will need to pray at several prescribed times during the workday in order to adhere to his religious practice of praying at five times each day, for several minutes, with hand washing beforehand. The employer objects because its written policy allows one fifteen-minute break in the middle of each morning and afternoon. Rashid’s requested change in break schedule will not exceed the 30 minutes of total break time otherwise allotted, nor will it affect his ability to perform his duties or otherwise cause an undue hardship for his employer. Thus, Rashid is entitled to accommodation. [269]
EXAMPLE 42
Blanket Policies Prohibiting Time Off
A large employer operating a fleet of buses had a policy of refusing to accept driver applications unless the applicant agreed that he or she was available to be scheduled to work any shift, seven days a week. This policy would violate Title VII if applied to discriminate against applicants who refrain from work on certain days for religious reasons, by failing to allow for the provision of religious accommodation absent undue hardship. [270]
2. Voluntary Substitutes and Shift Swaps
The reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available and willing to switch shifts, either for a single absence or multiple absences, including absences occurring over an extended period of time. “[T]he obligation to accommodate requires that employers and labor organizations facilitate the securing of a voluntary substitute with substantially similar qualifications. Some means of doing this which [covered entities] should consider are: to publicize policies regarding accommodation and voluntary substitution; to promote an atmosphere in which such substitutions are favorably regarded; to provide a central file, [physical or electronic] bulletin board or other means for matching voluntary substitutes with positions for which substitutes are needed.”[271] The employer’s obligation is to make a good faith effort to allow voluntary substitutions and shift-swaps to accommodate a religious conflict. [272] This does not require the employer itself to arrange a substitute or swap, but where it is difficult for employees to arrange shift substitutes or swaps on their own, the employer may have an obligation to do more to facilitate the search for volunteers. [273] Likewise, if the employer is on notice that the employee’s religious beliefs preclude him not only from working on his Sabbath but also from inducing others to do so, reasonable accommodation requires more than merely permitting the employee to swap. [274] An employer does not have to permit a substitute or swap if it would pose an undue hardship. As noted above, under the de minimis cost standard, if a swap or substitution would result in the employer having to pay premium wages (such as overtime pay), the frequency of the arrangement will be relevant to determining if it poses an undue hardship; “the Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing a reasonable accommodation.” [275]
If it does not pose an undue hardship, an employer must make an exception to its policy of requiring all employees, regardless of seniority, to work an “equal number of weekend, holiday, and night shifts,” and instead permit voluntary shift swaps between qualified coworkers in order to accommodate a particular employee’s sincerely held religious belief that he should not work on his or her Sabbath. Of course, if allowing a swap or other accommodation would not provide the coverage the employer needs for its business operations or otherwise pose an undue hardship, the accommodation does not have to be granted.
3. Change of Job Tasks and Lateral Transfer
When an employee’s religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee’s religion. Whether or not such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the nature of the employer’s business, the availability of others to perform the function, the availability of other positions, and the applicability of a collective bargaining agreement or seniority system.
EXAMPLE 43
Restaurant Server Excused from Singing Happy Birthday
Kim, a server at a restaurant, informed her manager that she would not be able to join other waitresses in singing “Happy Birthday” to customers because she is a Jehovah’s Witness whose religious beliefs do not allow her to celebrate holidays, including birthdays. There were enough servers on duty at any given time to perform this singing without affecting service. The manager refused any accommodation. If Kim files a Title VII charge alleging denial of religious accommodation, the EEOC will find cause because the restaurant could have accommodated her with little or no expense or disruption.
EXAMPLE 44
Pharmacist Excused from Providing Contraceptives
Neil, a pharmacist, was hired by a large corporation that operates numerous large pharmacies at which more than one pharmacist is on duty during all hours of operation. Neil informed his employer that he refuses on religious grounds to participate in distributing contraceptives or answering any customer inquiries about contraceptives. The employer reasonably accommodated Neil by offering to allow Neil to signal discreetly to a coworker who would take over servicing any customer who telephoned, faxed, or came to the pharmacy regarding contraceptives. [276]
EXAMPLE 45
Pharmacist Not Permitted to Turn Away Customers
In the above example, assume that instead of facilitating the assistance of such customers by a coworker, Neil leaves on hold indefinitely those who call on the phone about a contraceptive rather than transferring their calls, and walks away from in-store customers who seek to fill a contraceptive prescription rather than signaling a coworker. Neil refuses to signal another employee or inform the customer on the phone that he is placing them on a brief hold while he gets another employee. The employer is not required to accommodate Neil’s request to remain in such a position yet avoid all situations where he might even briefly interact with customers who have requested contraceptives, or to accommodate a disruption of business operations. The employer may discipline or terminate Neil if he disrupts business operations. [277]
The employee should generally be accommodated in his or her current position if doing so does not pose an undue hardship. [278] For example, if a pharmacist who has a religious objection to dispensing contraceptives can be accommodated without undue hardship by allowing the pharmacist to signal a coworker to assist customers with such prescriptions, the employer should not choose instead to accommodate by transferring the pharmacist to a different position. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. [279] The employer cannot transfer the pharmacist to a position that entails less pay, responsibility, or opportunity for advancement unless a lateral transfer is unavailable or would otherwise pose an undue hardship. [280]
EXAMPLE 46
Lateral Transfer Versus Transfer to a Lower-Paying Position
An electrical utility lineman requests accommodation of his Sabbath observance, but because the nature of his position requires being available to handle emergency problems at any time, there is no accommodation that would permit the lineman to remain in his position without posing an undue hardship. The employer can accommodate the lineman by offering a lateral transfer to another assignment at the same pay, if available. If, however, no job at the same pay is readily available, then the employer could satisfy its obligation to reasonably accommodate the lineman by offering to transfer him to a different job, even at lower pay, if one is available. [281]
4. Modifying Workplace Practices, Policies and Procedures
An employer may have to make an exception to its policies, procedures, or practices in order to grant a religious accommodation. [282]
a. Dress and Grooming Standards
When an employer has a dress or grooming policy that conflicts with an employee’s religious beliefs or practices, the employee may ask for an exception to the policy as a reasonable accommodation. [283] Religious dress may include clothes, head or face coverings, jewelry, or other items. Religious grooming practices may relate, for example, to shaving or hair length. Absent undue hardship, religious discrimination may be found where an employer fails to reasonably accommodate the employee’s religious dress or grooming practices. [284]
EXAMPLE 47
Facial Hair
Prakash, who works for CutX, a surgical instrument manufacturer, does not shave or trim his facial hair because of his Sikh religious observance. When he seeks a promotion to manage the division responsible for sterilizing the instruments, his employer tells him that, to work in that division, he must shave or trim his beard because otherwise his beard may contaminate the sterile field. When Prakash explains that he cannot trim his beard for religious reasons, the employer offers to allow Prakash to wear two face masks instead of trimming his beard. Prakash thinks that wearing two masks is unreasonable (for reasons unrelated to his religious practice) and files a Title VII charge. CutX will prevail because it offered a reasonable accommodation that would eliminate Prakash’s religious conflict with the hygiene rule.
Some courts have concluded that it would pose an undue hardship if an employer was required to accommodate a religious dress or grooming practice that conflicts with the public image the employer wishes to convey to customers. [285] While there may be circumstances in which allowing a particular exception to an employer’s dress and grooming policy would pose an undue hardship, an employer’s reliance on the broad rubric of “image” to deny a requested religious accommodation may in a given case be considered disparate treatment, including because it is tantamount to reliance on customer religious bias (so-called “customer preference”) in violation of Title VII. [286]
EXAMPLE 48
Religious Garb
Nasreen, a Muslim ticket agent for a commercial airline, wears a hijab (headscarf) to work at the airport ticket counter. After September 11, 2001, her manager objected, telling Nasreen that the customers might think she was sympathetic to terrorist hijackers. Nasreen explains to her manager that wearing the hijab is her religious practice and continues to wear it. She is terminated for wearing a hijab over her manager’s objection. Customer fears or prejudices do not amount to undue hardship. As a result, the airline’s refusal to accommodate her and its subsequent decision to terminate her violate Title VII. In addition, if the commercial airline had denied Nasreen the position due to perceptions of customer preferences about religious attire, that would also be disparate treatment based on religion in violation of Title VII, because it would be the same as refusing to hire Nasreen because she is a Muslim. See supra § 12‑II-B. [287]
There may be limited situations in which the need for uniformity of appearance is so important that modifying the dress code would pose an undue hardship. [288] This issue should be resolved on a case-by-case basis.
b. Use of Employer Facilities
If any employee needs to use a workplace facility as a reasonable accommodation, for example use of a quiet area for prayer during break time, the employer should accommodate the request under Title VII unless it would pose an undue hardship. If the employer allows employees to use the facilities at issue for non-religious activities not related to work, it may be difficult for the employer to demonstrate that allowing the facilities to be used in the same manner for religious activities is not a reasonable accommodation or poses an undue hardship. [289]
EXAMPLE 49
Use of Employer Facilities
An employee whose assigned work area is a factory floor rather than an enclosed office asks his supervisor if he may use one of the company’s unoccupied conference rooms to pray during a scheduled break time. The supervisor must grant this request if it would not pose an undue hardship. An undue hardship would exist, for example, if the only conference room is used for work meetings at that time. However, the supervisor is not required to provide the employee with his choice of the available locations and can meet the accommodation obligation by making any appropriate location available that would accommodate the employee’s religious needs if this can be done absent undue hardship, for example by offering an unoccupied area of the work space rather than the conference room.
c. Tests and Other Selection Procedures
An employer has an obligation to reasonably accommodate an applicant when scheduling a test or administering other selection procedures, where the applicant has informed the employer of a sincerely held religious belief that conflicts with a pre-employment testing requirement, unless undue hardship would result. [290] An employer may not permit an applicant’s presumed or actual need for a religious accommodation to affect its decision whether or not to hire the applicant unless the employer can demonstrate that it cannot reasonably accommodate the applicant’s religious observance or practice without undue hardship. [291]
d. Objections to Providing Social Security Numbers or Complying with Employer Identification Procedures
Whether it poses an undue hardship for an employer to provide an alternative means of identification for matters such as government forms, building security, or timekeeping will depend on the facts. It will typically pose an undue hardship for an employer to accommodate an applicant’s or employee’s asserted religious belief against providing or using a social security number, or identification requirements imposed by another federal law. [292] However, in cases where an alternative method of identification is feasible and does not pose an undue hardship, it may be required as a religious accommodation. [293]
5. Excusing Union Dues or Agency Fees
Absent undue hardship, Title VII requires employers and unions to accommodate an employee who holds religious objections to joining or financially supporting a union. [294] Such an employee can be accommodated, in many cases, by allowing the equivalent of her union dues (payments by union members) or agency fees (payments often required from non-union members in a unionized workplace) to be paid to a charity agreeable to the employee, the union, and the employer. [295] Whether a charity-substitute accommodation for payment of union dues would cause an undue hardship is an individualized determination based upon, among other things, the union’s size, operational costs, and the number of individuals who need the accommodation. [296]
If an employee’s religious objection is not to joining or financially supporting the union, but rather to the union’s support of certain political or social causes, the employee may be accommodated if it would not pose an undue hardship by, for example, reducing the amount owed, allowing the employee to donate to a charitable organization the full amount the employee owes or that portion that is attributable to the union’s support of the cause to which the employee has a religious objection, or diverting the amount owed to the national, state, or local union in the event one of those entities does not engage in support of the cause to which the employee has a religious objection. [297]
6. Permitting Prayer, Proselytizing, and Other Forms of Religious Expression
Some employees may seek to display religious icons or messages at their workstations or use a particular religious phrase when greeting others. Others may seek to proselytize by engaging in one-on-one discussions regarding religious beliefs or distributing literature. Still others may seek to engage in prayer at their workstations or to use other areas of the workplace for either individual or group prayer, study, or meeting. In some of these situations, an employee might request accommodation in advance to permit such religious expression. In other situations, the employer will not learn of the situation or be called upon to consider any action unless it receives complaints about the religious expression from either other employees or customers. As noted in §§ 12‑II-A-3 and 12‑III-C of this document, prayer, proselytizing, and other forms of religious expression do not solely raise a religious accommodation issue but may also raise intentional discrimination or harassment issues.
To determine whether allowing or continuing to permit an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, employers should consider the potential disruption, if any, that will be posed by permitting the expression of religious belief. [298] As explained below, relevant considerations may include the effect the religious expression has had, or can reasonably be expected to have, if permitted to continue, on coworkers, customers, or business operations.
a. Effect on Workplace Rights of Coworkers
Religious expression can create undue hardship if it disrupts the work of other employees or constitutes—or threatens to constitute—unlawful harassment. Conduct that is disruptive can still constitute an undue hardship, even if it does not rise to the level of unlawful harassment. Since an employer has a duty under Title VII to protect employees from harassment, it would be an undue hardship to accommodate expression that is harassing.[299] As explained in § 12‑III-A-2-b of this document, religious expression directed toward coworkers, made in coworkers’ presence, or that a coworker learns of, might constitute unlawful harassment in some situations, for example where it is facially abusive (i.e., demeans people of other religions) or where, even if not abusive, it persists even though it is clearly unwelcome. However, as with bias from customers, if coworkers’ objections are not because the conduct is facially abusive or persistent but rather because of bias of coworkers against religious expression generally or that particular religious expression, it is unlikely that accommodating the religious expression would be an undue hardship. It is necessary to make a case-by-case determination regarding whether the effect on coworkers actually is an undue hardship. Mere subjective offense or disagreement with unpopular religious views or practices by coworkers is not sufficient to rise to the level of unlawful harassment. However, this does not require waiting until the unwelcome behavior becomes severe or pervasive. [300] As with harassment on any basis, it is permitted and advisable for employers to take action to stop alleged harassment before it becomes severe or pervasive, because while isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful. [301]
b. Effect on Customers
The determination of whether it is an undue hardship to allow employees to engage in religiously oriented expression toward customers is a fact-specific inquiry and will depend on the nature of the expression, the nature of the employer’s business, and the extent of the impact on customer relations. For example, one court found that it was a reasonable accommodation to allow an employee to use the general religious greeting “Have a Blessed Day” with coworkers and with customers who had not objected, rather than using it with everyone, including a customer who objected. [302] However, other courts have found undue hardship where religiously oriented expression was used in the context of a regular business interaction with a client. [303] Whether or not the client objects, religiously oriented expression may create an undue hardship for an employer where the expression could be mistaken as the employer’s message, particularly in the instance of government employers. [304] Where the religiously oriented expression is not limited to use of a phrase or greeting, but rather is in the manner of individualized, specific proselytizing, an employer is far more likely to be able to demonstrate that it would constitute an undue hardship to accommodate an employee’s religious expression, regardless of the length or nature of the business interaction. [305]
EXAMPLE 50
Display of Religious Objects by an Employee
Susan and Roger are members of the same church and are both employed at XYZ Corporation. Susan works as an architect in a private office on an upper floor, where she occasionally interacts with coworkers, but not with clients. Roger is a security guard stationed at a desk in the front lobby of the XYZ building through which all employees, clients, and other visitors must enter. At a recent service at Susan and Roger’s church, the minister distributed posters with the message “Jesus Saves!” and encouraged parishioners to display the posters at their workplaces in order to “spread the word.” Susan and Roger each display the poster on the wall above their respective workstations. XYZ orders both to remove the poster despite the fact that both explained that they felt a religious obligation to display it, and despite the fact that there have been no complaints from coworkers or clients.
Susan and Roger file charges alleging denial of religious accommodation. The employer will probably be unable to show that allowing Susan to display a religious message in her personal workspace posed an undue hardship, unless there was evidence of disruption to the business or the workplace which resulted. By contrast, because Roger sits at the lobby desk and the poster is the first thing that visitors see upon entering the building, it would appear to represent XYZ’s views and would therefore likely be shown to pose an undue hardship. [306]
EXAMPLE 51
Undue Hardship to Allow Employee to Discuss Religion with Clients
Helen, an employee in a mental health facility that served a religiously and ethnically diverse clientele, frequently spoke with clients about religious issues and shared religious tracts with them as a way to help solve their problems, despite being instructed not to do so. After clients complained, Helen’s employer issued her a letter of reprimand stating that she should not promote her religious beliefs to clients and that she would be terminated if she persisted. Helen’s belief in the need to evangelize to clients cannot be accommodated without undue hardship. The employer has the right to control speech that threatens to impede provision of effective and efficient services. Clients, especially in a mental health setting, may not understand that the religious message represents Helen’s beliefs rather than the facility’s view of the most beneficial treatment for the patient. [307]
7. Employer-Sponsored Programs
Some employers have integrated their own religious beliefs or practices into the workplace, and they are entitled to do so. [308] However, if an employer holds religious services or programs or includes prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, including non-belief, absent a showing of undue hardship. [309] Excusing an employee from religious services normally does not create an undue hardship because it does not cost the employer anything and does not disrupt business operations or other workers. [310]
EXAMPLE 52
Prayer at Meetings
Michael’s employer requires that the mandatory weekly staff meeting begin with a religious prayer. Michael objects to participating because he believes it conflicts with his own sincerely held religious beliefs. He asks his supervisor to allow him to arrive at the meeting after the prayer. The supervisor must accommodate Michael’s religious belief by either granting his request or offering an alternative accommodation that would remove the conflict between Michael’s religious belief and the staff meeting prayer, even if other employees of Michael’s religion do not object to being present for the prayer. [311] The outcome would be the same if Michael sought the accommodation based on his lack of religious belief.
EXAMPLE 53
Employer Holiday Decorations
Each December, the president of XYZ corporation directs that several wreaths be placed around the office building and a tree be displayed in the lobby. Several employees complain that to accommodate their non-Christian religious beliefs, the employer should take down the wreaths and tree, or alternatively should add holiday decorations associated with other religions. Title VII does not require that XYZ corporation remove the wreaths and tree or add holiday decorations associated with other religions. [312] The result under Title VII on these facts would be the same whether in a private or government workplace. [313]
Similarly, an employer is required, absent undue hardship, to excuse an employee from compulsory personal or professional development training or participation in an initiative or celebration where it conflicts with the employee’s sincerely held religious beliefs, observances, or practices. [314] There may be cases, however, where an employer can show that it would pose an undue hardship to provide an alternative training or to excuse an employee from any part of a particular training, even if the employee asserts it is contrary to his religious beliefs to attend (e.g., where the training provides information on how to perform the job, on how to comply with equal employment opportunity obligations, or on other workplace policies, procedures, or applicable legal requirements).
EXAMPLE 54
Religious Objection to Training Program – Employee Must Be Excused
As part of its effort to promote employee health and productivity, the new president of a company institutes weekly mandatory on-site meditation classes led by a local spiritualist. Angelina explains to her supervisor that the meditation conflicts with her sincerely held religious beliefs and asks to be excused from participating. Because it would not pose an undue hardship, the company must accommodate Angelina’s religious belief by excusing her from the weekly meditation classes, even if the company and other employees believe that this form of meditation does not conflict with any religious beliefs.
EXAMPLE 55
Religious Objection to Training Program – Employee Need Not Be Excused
Employer XYZ holds an annual training for employees on a variety of personnel matters, including compliance with EEO laws and also XYZ’s own internal anti-discrimination policy, which includes a prohibition on sexual orientation discrimination. Lucille asks to be excused from the portion of the training on sexual orientation discrimination because she believes that it “promotes the acceptance of homosexuality,” which she sincerely believes is immoral and sinful based on her religion. The training does not tell employees to value different sexual orientations but simply discusses and reinforces laws and conduct rules requiring employees not to discriminate against or harass other employees based on sexual orientation and to treat one another professionally. Because an employer needs to make sure that its employees know about and comply with such laws and workplace rules, it would be an undue hardship for XYZ to excuse Lucille from the training. [315]
· NOTE TO EEOC INVESTIGATORS ·
While not all of the following issues will be in dispute in every charge alleging denial of religious accommodation, if CP alleges that R failed to accommodate CP’s religious beliefs, observances, or practices, the investigator should generally follow this line of inquiry, considering these steps:
- ⇒ Ascertain the nature of the belief, observance, or practice that CP claims R has failed to accommodate (e.g., dress, grooming, holy day observance, etc.) and what accommodation was sought and needed (e.g., exception to dress code, schedule change, leave, etc.).
- ⇒ If disputed by R, determine what evidence R relies on to support its position that CP’s beliefs are not “religious” in nature.
- ⇒ If disputed by R, determine what evidence R relies on to support its position that CP does not “sincerely hold” the particular religious belief, observance, or practice at issue.
· Employer Best Practices ·
Reasonable Accommodation - Generally.
- Employers should inform employees and applicants that they will make reasonable efforts to accommodate religious practices.
- Employers should train managers and supervisors on how to recognize religious accommodation requests from employees.
- Employers should consider developing internal procedures for processing religious accommodation requests. Where the employer relies on a staffing firm or other entity for any of its staffing needs, the employer and the staffing entity should coordinate in advance how they will handle accommodating applicants’ or employees’ religious beliefs or practices, consistent with these best practices.
- Employers should individually assess each request and avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate.
- Employers and employees should confer fully and promptly to the extent needed to share any necessary information about the employee’s religious needs and the available accommodation options.
- An employer is not required to provide an employee’s preferred accommodation if there is more than one reasonable alternative. An employer should, however, consider the employee’s proposed method of accommodation, and if it is denied, explain to the employee why his proposed accommodation is not being granted.
- Managers and supervisors should be trained to consider alternative available accommodations if the particular accommodation requested would pose an undue hardship.
- When faced with a request for a religious accommodation which cannot be promptly implemented, an employer should consider offering alternative methods of accommodation on a temporary basis, while a permanent accommodation is being explored. In this situation, an employer should also keep the employee apprised of the status of the employer’s efforts to implement a permanent accommodation.
Undue Hardship – Generally
- The undue hardship standard refers to the legal requirement. Employers should be flexible in evaluating whether or not an accommodation is feasible, in light of that legal requirement. As with all aspects of employee relations, employers are free to go beyond the requirements of the law.
- An employer should not assume that an accommodation will conflict with the terms of a seniority system or collective bargaining agreement (CBA) without first checking if there are any exceptions for religious accommodation or other avenues to allow an accommodation consistent with the seniority system or CBA.
- An employer should not automatically reject a request for religious accommodation just because the accommodation would interfere with the existing seniority system or terms of a CBA. Although an employer may not upset coworkers’ settled expectations, an employer is free to seek a voluntary modification to a CBA in order to accommodate an employee’s religious needs.
- Employers should train managers that, if the requested accommodation would violate the CBA or seniority system, they should confer with the employee to determine if an alternative accommodation is available.
- Employers should ensure that managers are aware that reasonable accommodation may require making exceptions to policies or procedures that are not part of a CBA or seniority system, where it would not infringe on other employees’ legitimate expectations.
Schedule Changes
- Employers should work with employees who need an adjustment to their work schedules to accommodate their religious practices.
- Notwithstanding that the legal standard for undue hardship is “more than a de minimis cost,” employers may choose voluntarily to incur whatever additional operational or financial costs they deem appropriate to accommodate an employee’s religious need for scheduling flexibility.
- Employers should consider adopting flexible leave and scheduling policies and procedures that will often allow employees to meet their religious and other personal needs. Such policies can reduce individual requests for exceptions. For example, some employers have policies allowing alternative work schedules or a certain number of “floating” holidays for each employee. While such policies may not cover every eventuality and some individual accommodations may still be needed, the number of such individual accommodations may be substantially reduced.
Voluntary Substitutes or Swaps
- Employers should facilitate and encourage voluntary substitutions and swaps with employees of substantially similar qualifications by publicizing policies permitting such arrangements, promoting an atmosphere in which substitutes are favorably regarded, and providing a central file, bulletin board, group e-mail, or other means to help an employee with a religious conflict find a volunteer to substitute or swap.
Change of Job Assignments and Lateral Transfers
- An employer should consider a lateral transfer when no accommodation which would keep the employee in his or her position is possible absent undue hardship. However, an employer should only resort to transfer, whether lateral or otherwise, after fully exploring accommodations that would permit the employee to remain in his or her position.
- Where a lateral transfer is unavailable, an employer should not assume that an employee would not be interested in a lower-paying position if that position would enable the employee to abide by his or her religious beliefs. If there is no accommodation available that would permit the employee to remain in his or her current position or an equivalent, the employer should offer the next best available position as an accommodation and permit the employee to decide whether or not to take it.
Modifying Workplace Practices, Policies, and Procedures
- Employers should make efforts to accommodate an employee’s religious practice of wearing a beard or religious garb such as a yarmulke, hijab, long skirts (as opposed to pants), or turban.
- Managers and employees should be trained not to engage in stereotyping based on religious dress and grooming practices and should not assume that atypical dress will create an undue hardship.
- Employers should be flexible and creative regarding work schedules, work duties, and selection procedures to the extent practicable.
- Employers should be sensitive to the risk of unintentionally pressuring or coercing employees to attend social gatherings if an employee has indicated a religious objection to attending.
Permitting Prayer, Proselytizing, and Other Forms of Religious Expression
- Employers should train managers to gauge the actual disruption posed by religious expression in the workplace, rather than merely speculating that disruption may result. Employers should also train managers to identify alternatives that might be offered to avoid actual disruption (e.g., designating an unused or private location in the workplace where a prayer session, study, or meeting can occur if it is disrupting other workers in a different location).
- Employers should incorporate a discussion of religious expression, and the need for all employees to treat each other professionally, regardless of actual or perceived religious or lack of religious beliefs, into any anti-harassment training provided to managers and employees.
· Employee Best Practices ·
- Employees should advise their supervisors or managers of the nature of the conflict between their religious needs and the work rules.
- Employees should provide enough information to enable the employer to understand what accommodation is needed, and why it is necessitated by a religious observance, practice, or belief.
- Employees who seek to proselytize in the workplace should cease doing so with respect to any individual who indicates that the communications are unwelcome.
12-V RELATED FORMS OF DISCRIMINATION
A. National Origin, Race, and Color
Title VII’s prohibition against religious discrimination may overlap with Title VII’s prohibitions against discrimination based on national origin, race, and color. Where a given religion is strongly associated – or perceived to be associated – with a certain national origin, the same facts may state a claim of both religious and national origin discrimination. [317] All four bases might be implicated where, for example, coworkers target a dark-skinned Muslim employee from Saudi Arabia for harassment because of his color, religion, national origin, and/or race. [318]
B. Retaliation
Title VII prohibits retaliation by an employer, employment agency, or labor organization because an individual has engaged in protected activity. [319] Protected activity consists of opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII. [320] EEOC has taken the position that requesting a religious accommodation is a protected activity under this provision of Title VII. [321] Retaliation in this context means taking an action against the employee because of her protected activity that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” [322]
EXAMPLE 56
Retaliation for Requesting Accommodation
Jenny requests that she be excused from daily employer-sponsored Christian prayer meetings because she is an atheist. Her supervisor insists that she attend, but she persists in her request that she should be excused and explains that requiring her to attend is offensive to her religious beliefs. She takes her request to human resources and informs them that requiring her to attend these prayer meetings is offensive to her religious beliefs. Despite her supervisor’s objections, the human resources department instructs the supervisor that in the circumstances no undue hardship is posed and he must grant the request. Motivated by reprisal, her supervisor shortly thereafter gives her an unjustified poor performance rating and denies her requests to attend training that is approved for similarly situated employees. This retaliation violates Title VII.
· Employer Best Practices ·
Retaliation
- Employers can reduce the risk of retaliation claims by training managers and supervisors to be aware of their anti-retaliation obligations under Title VII, including specific actions that may constitute retaliation.
- Employers can help reduce the risk of retaliation claims by carefully and timely recording the accurate business reasons for disciplinary or performance-related actions and sharing these reasons with the employee.
Addendum on Executive Order Compliance
Guidance Procedures
Executive Order 13891
The definition of “guidance” in Executive Order 13891 encompasses this interpretive guidance. See Exec. Order No. 13891, 84 Fed. Reg. 155235, 155235 (defining “guidance document”); Memorandum from Dominic J. Mancini, Acting Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, to Regulatory Policy Officers at Executive Departments and Agencies and Managing Directors of Certain Agencies and Commissions (Oct. 31, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/10/M-20-02-Guidance-Memo.pdf (explaining the exclusions under E.O. 13891).
Because the Commission is issuing this document as interpretive guidance, within the recognized constraints of its authority, the Commission concludes that the guidance procedures under Executive Order 13891, as codified in EEOC regulations at 29 CFR 1695.01-.10, apply. Accordingly, the Commission states that:
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. Any final document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
The EEOC and the Office of Management and Budget (OMB) have determined that the guidance raises novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in Executive Order 12866. In consequence, it is “significant guidance” within the meaning of Section 2(c) of Executive Order 13891. Pursuant to Section 4(a)(iii)(D) of Executive Order 13891, an agency submitting a significant guidance document to OIRA for review should demonstrate how the guidance document complies with Executive Orders 12866, 13563, 13609, [323] 13771, and 13777.
Executive Order 12866
The EEOC has coordinated issuance of the guidance with OMB. Pursuant to Section 3(f) of Executive Order 12866, the EEOC and OMB have determined that the guidance will not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. It will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, nor will they materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. It will, however, raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in Executive Order 12866. In consequence, it is “significant regulatory action” within the meaning of section 3(f) of Executive Order 12866.
Executive Order 13563
The guidance will maximize net benefits and reduce the burden on the public by clarifying the legal standards applicable to religious discrimination claims, presenting typical scenarios in which religious discrimination may arise, and providing guidance to employers on how to balance the needs of individuals in a diverse religious climate. The guidance is not being issued because of any retrospective review.
Executive Orders 13771
The guidance will reduce the burden on the public by clarifying the legal standards the EEOC will apply to religious discrimination claims. The guidance will be an Executive Order 13771 deregulatory action.
Executive Orders 13777
Providing clear, accurate guidance that is up to date with current law is part of the Commission’s regulatory reform agenda. Therefore, this guidance is being issued as part of the Commission’s regulatory reform agenda.
Congressional Review Act
Pursuant to 29 C.F.R. § 1695.6(e), the Commission will submit this significant guidance document to Congress under the procedures described in 5 U.S.C. § 801. This guidance is not a “major rule” as defined in 5 U.S.C. § 804(2).
Addendum Pursuant to 29 C.FR. §1695.6(c) on Major Comments
on Proposed Compliance Manual on Religious Discrimination
and EEOC ResponsesThe EEOC received 71 unique comments [324] from individuals, organizations, and members of Congress on the proposed Compliance Manual on Religious Discrimination, which was posted for public input on www.regulations.gov on November 17, 2020. A number of these comments were submitted on behalf of multiple organizations or officeholders, including one on behalf of 51 organizations and another on behalf of 44 organizations. The major comments and the Commission’s responses to those comments are summarized below.
Process
Comment: Numerous organizational and Congressional commenters asserted that there was insufficient opportunity for stakeholder consultation and inadequate time allotted for Commissioner and public input. These commenters requested that the Commission withdraw rather than finalize the proposed guidance. Several commenters also expressed concerns with listening sessions that the General Counsel held and the commenters felt that they undermined the comment period.
Response: The Commission engaged in an internal process and inter-agency consultation before issuing the proposal, and then provided a standard 30-day public input period. This is the first significant guidance that the Commission has issued under the regulations found at 29 CFR 1695.01-.10, which call for a public comment period and other procedural measures. In 2008, the public was not given an opportunity to comment on a proposed draft of the guidance. The comment period yielded many detailed comments from a wide range of stakeholders representing many differing perspectives. Moreover, issuance of both the proposal and of the final guidance was subject to review and clearance by the Office of Management and Budget. Many public commenters noted that the update is needed and timely. Regarding the General Counsel’s listening sessions, these sessions were not organized to receive comments on the proposed guidance. Instead, they were an opportunity for the General Counsel to hear organizations’ perspectives on the Commission’s enforcement efforts. The General Counsel did not seek comments on the proposed guidance and instead encouraged participants to submit comments through the formal process, if they were interested. Furthermore, the listening sessions in no way prevented the public from having the opportunity to comment.
Definition of Religion
Comment: Some commenters expressed concern that the draft did not make sufficiently clear that Title VII protects against discrimination based on a lack of religious faith.
Response: The Commission has made additions to reference repeatedly that discrimination based on a lack of religious faith is prohibited.
Religious Organization Exemption
Comment: Various commenters took issue with the draft’s statement that it was an “open question” whether a for-profit corporation can constitute a “religious corporation” within the meaning of section 702(a) of Title VII, 42 U.S.C. § 2000e(1)(a).
Response: The final guidance has deleted this language. Instead, the final guidance observes that although courts have historically relied on for-profit status to indicate that an entity is not a “religious corporation” under § 702(a), the plain text of the statute does not reference for-profit and nonprofit status, and that it is possible courts may be more receptive to finding a for-profit corporation can qualify given language from the Supreme Court’s decision in Hobby Lobby.
Comment: Many organizational and Congressional commenters asked for clarification or revision of the proposal’s interpretation of the scope of the statutory exemption permitting employment of individuals “of a particular religion” by religious corporations under § 702(a) or religious educational institutions under § 703(e)(2). Some commenters asked the Commission to state that religious organizations are barred from discrimination based on race, color, sex, national origin, or other bases, even if motivated by a religious belief. By contrast, others asked for greater clarity that religious organizations are shielded from such claims by the statutory permission to hire individuals “of a particular religion.” Additionally, some commenters discussed how the Commission should proceed if a respondent entity invokes the religious organization exception.
Response: The final guidance clearly states that religious organizations are subject to the Title VII prohibitions against discrimination on the basis of race, color, sex, national origin (as well as the anti-discrimination provisions of the ADEA, ADA, and GINA), and related retaliation, but are permitted to assert the statutory exemption as an affirmative defense.
The guidance further notes that “[c]ourts have held that the religious organization’s assertion that the challenged employment decision was made on the basis of religion is subject to a pretext inquiry, where the employee has the burden to prove pretext.” The guidance discusses a case where the court found if the religious organization presented “‘convincing evidence’ that the challenged employment practice resulted from discrimination on the basis of religion,” then the religious organization exemption “deprives the EEOC of jurisdiction to investigate further to determine whether the religious discrimination was a pretext for some other form of discrimination.”
Ministerial Exception
Comment: Some commenters objected to the nature or extent of the Commission’s treatment of the ministerial exception. Others discussed the draft’s handling of procedural matters relating to adjudication of the ministerial exception when asserted as a defense.
Response: The final guidance has streamlined the discussion of the ministerial exception and has clarified how the Commission will procedurally address assertions of the defense.
Interaction of Title VII with the First Amendment and the Religious Freedom Restoration Act (RFRA)
Comment: Numerous commenters asked the Commission to delete or modify references to RFRA as a potential defense to Title VII enforcement by the government. Some noted the holdings in particular Title VII decisions addressing RFRA defenses, and cited RFRA’s legislative history stating it was not intended to modify Title VII.
Response: The final guidance refines treatment of the cited authorities in this section, including explanations of the outcome in cases in which RFRA was raised as a defense to EEO enforcement.
Comment: The National Federation of Independent Business recommended insertion of language guiding EEOC staff to confer with the EEOC Office of Legal Counsel, which may as needed consult with the Department of Justice’s Office of Legal Counsel, when matters raise the interaction of the First Amendment or RFRA with statutes enforced by the EEOC.
Response: The final guidance includes this type of instruction to EEOC staff.
Employment Decisions
Comment: The Sikh Coalition requested that an example in this section be revised to illustrate a claim of unlawful segregation of those who wear religious garb, and also requested various descriptions of ritual practices in this and other sections to improve accuracy and reduce rather than reinforce bias or stereotypes.
Response: The final guidance incorporates these recommended changes.
Harassment
Comment: Numerous commenters asked the Commission to clarify and further emphasize that consensual non-harassing conversations about religious topics are not potential harassment of coworkers.
Response: The final guidance includes additional statements and examples illustrating instances of non-harassing, non-disruptive religious expression.
Comment: Some commenters recommended that the Commission address whether or when employee statements on private social media may implicate the EEO laws with respect to discrimination, including harassment, either by or against religious employees.
Response: The final guidance adds additional authority to the discussion of social media and harassment.
Interaction of Harassment and Accommodation of Religious Expression
Comment: With respect to balancing harassment and accommodation obligations, numerous commenters asked the Commission to make clear that employers are permitted to, and should, take remedial action once on notice of unwelcome potential harassment on any basis, even if the harassing conduct is not yet severe or pervasive.
Response: The final guidance includes additional language explicitly reiterating an employer’s rights and responsibilities under Title VII with respect to coworker complaints about unwelcome harassing conduct.
Reasonable Accommodation and Undue Hardship
Comment: Various commenters addressed the Commission’s statement in the draft that a denial of religious accommodation absent undue hardship is actionable even if there was not an additional, independent adverse employment action taken against the employee. Some commenters agreed with the Commission’s position and others opposed it.
Response: The final guidance maintains the Commission’s position, which is also articulated in the existing 2008 document, and has been the subject of past and current litigation brought by the Commission on behalf of applicants and employees who were unlawfully denied religious accommodation. Requiring an employee to work without religious accommodation where a work rule conflicts with his religious beliefs necessarily alters the terms and conditions of his employment for the worse.
Comment: Numerous commenters expressed concerns that the Commission’s citation to laws enforced by the U.S. Department of Health and Human Services regarding rights of those with objections to participating in certain health care duties could be misleading with respect to the requirements under either those laws or Title VII.
Response: The final guidance includes a clear statement that the Commission is referencing these laws for informational purposes and is not opining on any of their requirements or whether they would require additional burdens on employers beyond Title VII’s analysis for reasonable accommodation.
Comment: Commenters offered a range of perspectives on the Supreme Court’s 1977 holding that the Title VII undue hardship defense permits an employer to deny any religious accommodation that would impose more than a de minimis burden on the operation of the employer’s business. Some commenters believed the Commission’s inclusion of a citation to Justice Alito’s concurring opinion in the denial of certiorari in Patterson v. Walgreen Co., 140 S. Ct. 685 (2020), expressing that the Court should reconsider this definition, was potentially confusing or misleading.
Response: The final guidance deletes this citation to ensure clarity regarding the current legal standard.
[1] This document uses examples that refer to practices and beliefs of various religions. These examples are intended to clarify the legal principles for which they are used and do not purport to represent the religious beliefs or practices of all members of the cited religions. Unless otherwise noted, cases are cited in this document for their holdings under Title VII of the Civil Rights Act of 1964 (Title VII). In some instances, links to non-EEOC internet sites are provided for the reader’s convenience in obtaining additional information; EEOC assumes no responsibility for their content and does not endorse their organizations or guarantee the accuracy of these sites. Use of the term “employee” in this document should be presumed to include an applicant and, as appropriate, a former employee.
[2] See 42 U.S.C. § 2000e(k) (Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”); Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (holding that Title VII’s prohibition of discrimination based on sex, 42 U.S.C. § 2000e-2(a), includes a prohibition of discrimination because of sexual orientation or transgender status).
[5] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).
[6] Compare Hardison, 432 U.S. at 84 (interpreting Title VII “undue hardship” standard), with 42 U.S.C. § 12111(10)(A) (defining ADA “undue hardship” standard). Note: Various state and local laws extend beyond Title VII in terms of the protected bases covered, the discrimination prohibited, the accommodation required, and the legal standards and defenses that apply.
[7] See, e.g., Cooper v. Gen. Dynamics, Convair Aerospace Div., 533 F.2d 163, 168 (5th Cir. 1976) (stating “all forms and aspects of religion, however eccentric, are protected”).
[8] This common formulation derives from the seminal Supreme Court decisions interpreting the conscience exemption in the Military Selective Service Act, 50 U.S.C. § 3806(j). See, e.g., Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (“We believe the proper test to be applied to the determination of what is ‘religious’ under § 2000e(j) can be derived from the Supreme Court decisions in Welsh v. United States, 398 U.S. 333 (1970), and United States v. Seeger, 380 U.S. 163 (1969), i.e., (1) is the ‘belief’ for which protection is sought ‘religious’ in person’s own scheme of things, and (2) is it ‘sincerely held.’” (quoting those decisions)); Fallon v. Mercy Cath. Med. Ctr., 877 F.3d 487, 490-91 (3d Cir. 2017) (applying same test to Title VII claim of religious discrimination); Davis v. Fort Bend Cnty., 765 F.3d 480, 485 (5th Cir. 2014) (same); Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 448 (7th Cir. 2013) (same); EEOC v. Union Independiente de la Autoridad de Acueductos, 279 F.3d 49, 56 (1st Cir. 2002) (same); see also, e.g., EEOC Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.1 (stating that EEOC has “consistently applied” this standard to Title VII).
[9] Fallon, 877 F.3d at 491 (quoting Welsh, 398 U.S. at 340 (quoting Seeger, 380 U.S. at 176)).
[10] See, e.g., Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007) (addressing “non-adherence or reverse religious discrimination claim”); Reed v. Great Lakes Cos., 330 F.3d 931, 933-34 (7th Cir. 2003) (“[F]or these purposes, . . . ‘religion’ includes antipathy to religion. And so an atheist . . . cannot be fired because his employer dislikes atheists.”); Shapolia v. Los Alamos Nat’l Lab’y, 992 F.2d 1033, 1037 (10th Cir. 1993) (plaintiff claimed he was fired “because he did not hold the same religious beliefs as his supervisors”); Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140 (5th Cir. 1975) (finding Title VII violated by requiring atheist employee to attend prayer portion of business meeting).
[11] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731‑32 (2018) (holding that a state administrative agency’s consideration of baker’s First Amendment free exercise claim opposing alleged violation of public accommodations nondiscrimination law “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint” and apply laws “in a manner that is neutral toward religion”); Epperson v. Ark., 393 U.S. 97, 103-04 (1968) (“Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”); see also Bd. of Educ. v. Grumet, 512 U.S. 687, 714 (1994) (O’Connor, J., concurring) (“We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or do not worship.”).
[12] In fiscal year 2019, EEOC received 2,725 religious discrimination charges, accounting for 3.7% of all charges filed with the Commission that year. In fiscal year 1997, EEOC received 1,709 religious discrimination charges, accounting for 2.1% of all charges filed with the Commission that year. Statistics regarding the number of religious discrimination charges filed with the Commission and dispositions can be found at https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0.
[13] In general, the principles discussed in this Section apply to Title VII claims against private employers as well as to federal, state, and local public sector employers, unless otherwise noted. See 42 U.S.C. §§ 2000e(a)-(b), 2000e-16(a) et seq. See, e.g., infra § 12-I-C-3 (“Additional Interaction of Title VII with the First Amendment and the Religious Freedom Restoration Act (RFRA)”). Claims under various state or local laws may be analyzed under different standards. Investigators should contact the Office of Legal Counsel if questions arise about how to appropriately analyze charges brought against government entities.
[14] 42 U.S.C. § 2000e-2. To determine whether an entity is covered by Title VII, see EEOC, Compliance Manual: Threshold Issues (2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues [hereinafter Threshold Issues]. Although this document concerns Title VII, employers and employees should note that there may be state and local laws in their jurisdiction prohibiting religious discrimination in employment, some of which may be parallel to Title VII and some of which may afford broader coverage.
[15] See, e.g., EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1120 (10th Cir. 2013) (“A religious accommodation claim is distinct from a disparate treatment claim.” (quoting EEOC, Compliance Manual: Religious Discrimination § 12-IV (2008)), discussing case law describing disparate treatment and reasonable accommodation as different theories of discrimination), rev’d and remanded, 575 U.S. 768, 135 S. Ct. 2028 (2015).
[16] Abercrombie & Fitch Stores, Inc., 135 S. Ct. at 2031-32.
[17] Id. at 2032-33. Since the Abercrombie decision was issued, some lower courts have nevertheless continued to characterize denial of accommodation as a distinct cause of action.
[18] 42 U.S.C. § 2000e(j); see Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978) (observing that “the very words of the statute . . . leave little room for such a limited interpretation”; “to restrict the act to those practices which are mandated or prohibited by a tenet of the religion, would involve the court in determining not only what are the tenets of a particular religion, which by itself perhaps would not be beyond the province of the court, but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion,” a determination that would be “irreconcilable with the warning issued by the Supreme Court” that “‘[i]t is no business of courts to say . . . what is a religious practice or activity’” (quoting Fowler v. Rhode Island, 345 U.S. 67, 70 (1953))); see also Emp’t Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 887 (1990) (explaining in Free Exercise Clause case that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim”). However, as discussed in this section, Title VII does not cover all beliefs; for example, social, political, or economic philosophies, and mere personal preferences, are not “religious” beliefs within the meaning of the statute.
[19] See Thomas v. Rev. Bd., 450 U.S. 707, 714 (1981) (ruling that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”); see also Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (holding that although animal sacrifice may seem “abhorrent” to some, Santeria belief is religious in nature and is protected by the First Amendment); Toronka v. Cont’l Airlines, 649 F. Supp. 2d 608, 612 (S.D. Tex. 2009) (holding in Title VII case that a moral and ethical belief in the power of dreams that is based on religious convictions and traditions of African descent is a religious belief, and that this determination does not turn on veracity but rather is based on a theory of “’man’s nature or his place in the Universe,’” even if considered by others to be “nonsensical” (quoting Brown v. Dade Christian Schs., Inc., 556 F.2d 310, 324 (5th Cir. 1977) (Roney, J., dissenting))); United States v. Meyers, 906 F. Supp. 1494, 1499 (D. Wyo. 1995) (relying on First Amendment jurisprudence to observe in Religious Freedom Restoration Act case that “one man’s religion will always be another man’s heresy”).
[20] Welsh v. United States, 398 U.S. 333, 339 (1970) (interpreting what is now the Military Selective Service Act, 50 U.S.C. § 3806(j)); see also Thomas, 450 U.S. at 716 (“[I]t is not within the judicial function and judicial competence to inquire whether the petitioner or [another practitioner] . . . more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.”) (First Amendment).
[21] United States v. Seeger, 380 U.S. 163, 166, 176 (1965). Although Seeger arose under what is now the Military Selective Service Act, 50 U.S.C. § 3806(j), the EEOC has “consistently applied this standard” to Title VII, see Commission Guidelines, 29 C.F.R. § 1605.1. The courts have as well. See supra note 8.
[22] Thomas, 450 U.S. at 714 (“The determination of what is a ‘religious’ belief or practice is more often than not a difficult and delicate task. . . . However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014) (“[I]t is not for us to say that the line [employee] drew [between work that was consistent with religious beliefs and work that was morally objectionable] was an unreasonable one.” (quoting Thomas, 450 U.S. at 715)).
[23] Commission Guidelines, 29 C.F.R. § 1605.1 (“The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”); Welsh, 398 U.S. at 343 (finding that petitioner’s beliefs were religious in nature although the church to which he belonged did not teach those beliefs) (Military Selective Service Act); accord Africa v. Pennsylvania, 662 F.2d 1025, 1032-33 (3d Cir. 1981) (First Amendment); Bushouse v. Local Union 2209, United Auto., Aerospace & Agric. Implement Workers of Am., 164 F. Supp. 2d 1066, 1076 n.15 (N.D. Ind. 2001) (“Title VII’s intention is to provide protection and accommodation for a broad spectrum of religious practices and belief not merely those beliefs based upon organized or recognized teachings of a particular sect.”).
[24] Commission Guidelines, 29 C.F.R. § 1605.1 (“This standard was developed in [Seeger] and [Welsh]. The Commission has consistently applied this standard in its decisions.”); see Torcaso v. Watkins, 367 U.S. 488, 489-90 (1961) (ruling that government may not favor theism over pantheism or atheism) (First and Fourteenth Amendments); Welsh, 398 U.S. at 339-340 (reiterating that a belief in God or divine beings is not necessary to qualify as a religion; nontheistic beliefs can be religious within the meaning of the statute as long as they “occupy in the life of that individual ‘a place parallel to that filled by . . . God’ in traditionally religious persons.”).
[25] United States v. Meyers, 906 F. Supp. 1494, 1499 (D. Wyo. 1995) (observing that the threshold for establishing the religious nature of beliefs is low; under the First Amendment, “if there is any doubt about whether a particular set of beliefs constitutes a religion, the Court will err on the side of freedom and find that the beliefs are a religion . . . [because the country’s] founders were animated in large part by a desire for religious liberty”), aff’d, 95 F.3d 1475, 1482-83 (10th Cir. 1996); see also Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 887, 887 (1990) (explaining in Free Exercise Clause case that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim”).
[26] Meyers, 906 F. Supp. at 1502 (ruling that religions address “ultimate ideas,” i.e., “fundamental questions about life, purpose, and death,” and that single-faceted worship of marijuana was not a religion for First Amendment purposes), aff’d, 95 F.3d at 1483. “Thus, a genuinely held belief that involves matters of the afterlife, spirituality, or the soul, among other possibilities, qualifies as religion under Title VII.” Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 448 (7th Cir. 2013).
[27] Fallon v. Mercy Catholic Med. Ctr. of Se. Pa., 877 F.3d 487, 491 (3d Cir. 2017) (quoting Africa, 662 F.2d at 1032). Although “religion” is often marked by external manifestations such as ceremonies, rituals or clergy, such manifestations are not required for a belief to be “religious.” See, e.g., Malnak v. Yogi, 592 F.2d 197, 209-10 (3d Cir. 1979).
[28] See Fallon, 877 F.3d at 492 (employee’s objection to flu vaccine did not qualify as a religious belief protected by Title VII because his beliefs that “one should not harm their own body and . . . that the flu vaccine may do more harm than good” did not “address fundamental and ultimate questions having to do with deep and imponderable matters” and were not “comprehensive in nature”). Similarly, EEOC and courts have found that the Ku Klux Klan is not a religion within the meaning of Title VII because its philosophy has a narrow, temporal, and political character. See Commission Decision No. 79-06, CCH EEOC Decisions ¶ 6737 (1983); Bellamy v. Mason’s Stores, Inc., 368 F. Supp. 1025, 1026 (E.D. Va. 1973), aff’d, 508 F.2d 504 (4th Cir. 1974); Slater v. King Soopers, 809 F. Supp. 809, 810 (D. Colo. 1992) (dismissing religious discrimination claim by a member of the Ku Klux Klan who allegedly was fired for participating in a Hitler rally because the Ku Klux Klan is “political and social in nature” and is not a religion for Title VII purposes); see also Brown v. Pena, 441 F. Supp. 1382, 1385 (S.D. Fla. 1977) (holding that plaintiff’s belief that eating cat food contributes to his well-being is a personal preference and not a religion). In a related context, the Supreme Court has held that, unlike religious beliefs, philosophical and personal beliefs “do[] not rise to the demands of the Religion Clauses.” Wisconsin v. Yoder, 406 U.S. 205, 216 (1972). When evaluating whether the belief qualifies as religious, courts should consider whether the belief is merely focused on an “isolated moral teaching” or rather is part of a “comprehensive system of beliefs about fundamental or ultimate matters.” Fallon, 877 F.3d at 492.
[29] Fallon, 877 F.3d at 492. See also Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 225 (3d Cir. 2000) (addressing merits of Title VII religious accommodation claim based on plaintiff’s refusal to participate in medical procedures that terminate a pregnancy); cf. Gadling-Cole v. W. Chester Univ., 868 F. Supp. 2d 390, 396-97 (E.D. Pa. 2012)(emphasizing that Title VII religious discrimination claims have been held cognizable as to topics that “overlap both the religious and political spectrum, such as abortion, so long as the claims are based on a plaintiff’s bona fide religious belief”).
[30] See Yoder, 406 U.S. at 216 (explaining that “if the Amish asserted their [free exercise] claims [against a compulsory education law] because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis”).
[31] See Davis v. Fort Bend Cnty., 765 F.3d 480, 485, 486-87 (5th Cir. 2014) (holding that whether a practice is religious turns not on the nature of the activity itself, but rather whether the plaintiff “sincerely believed it to be religious in her own scheme of things,” and finding the lower court erred in characterizing plaintiff’s attendance at service and event breaking ground for a new church and feeding community as “a personal commitment, not religious conviction”); Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978) (finding the employer liable for failing to accommodate employee’s participation in Saturday Bible classes pursuant to a sincerely held religious belief given that he was appointed to be lifetime leader of his church Bible study class many years earlier, time of meeting was scheduled by church elders, and employee felt that his participation was at dictate of his elders and constituted a “religious obligation”); see also Dachman v. Shalala, 9 F. App’x 186, 191-93 (4th Cir. 2003) (ruling that plaintiff’s accommodation request to be home by time of Sabbath observance was covered by Title VII, but time off sought for tasks that could be performed at another time, such as purchasing ritual foods, cooking, and cleaning in preparation for the observance, was a personal preference that the employer was not required to accommodate); Jiglov v. Hotel Peabody, GP, 719 F. Supp. 2d 918, 929-30 (W.D. Tenn. 2010) (holding that a scheduling accommodation request could be covered by Title VII where employee’s religious dictates for observance of Russian Orthodox Easter included not only attendance at church service but also a priest’s blessing of the family meal, the sharing of the meal, and prayer with family members); Duran v. Select Med. Corp., No. 08-cv-2328-JPM-tmp, 2010 WL 11493117, at *5-6 (W.D. Tenn. Mar. 19, 2010) (holding that a scheduling accommodation request to be able to attend Christmas Mass was covered by Title VII, but not the family meal and gift exchange that followed).
[32] Cf. Spies v. Voinovich, 173 F.3d 398, 406-07 (6th Cir. 1999) (ruling there was no obligation to accommodate a vegan diet that an individual conceded was unrelated to his Zen Buddhist religious beliefs); LaFevers v. Saffle, 936 F.2d 1117 (10th Cir. 1991) (holding that although not all Seventh-day Adventists are vegetarian, an individual adherent’s genuine religious belief in such a dietary practice warrants constitutional protection under the First Amendment).
[33] Compare Fallon, 877 F.3d at 492-93 (recognizing that anti-vaccination beliefs such as those held by Christian Scientists can be part of a “broader religious faith” and therefore subject to Title VII religious accommodation in some circumstances, but concluding that plaintiff’s beliefs did not qualify as religious because he “simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine.”), with Chenzira v. Cincinnati Child.’s Hosp. Med. Ctr., No. 1:11–CV–00917, 2012 WL 6721098, at *4 (S.D. Ohio Dec. 27, 2012) (holding that Title VII could cover a request to be excused from hospital mandatory vaccination policy due to vegan opposition to a vaccine that was animal-tested or contains animal byproducts if plaintiff “subscribe[d] to veganism with a sincerity equating that of traditional religious views,” noting her citation to essays about veganism and to Biblical excerpts).
[34] Davis, 765 F.3d at 486 (quoting Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013)); see also Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452 (7th Cir. 2013) (emphasizing that Title VII has a “broad and intentionally hands-off definition of religion”).
[35] See Dettmer v. Landon, 799 F.2d 929, 932 (4th Cir. 1986) (rejecting argument that witchcraft was a “conglomeration” of “various aspects of the occult” rather than a religion, because religious beliefs need not be “acceptable, logical, consistent or comprehensible to others” to be protected under the First Amendment); Wash. Ethical Soc’y v. Dist. of Columbia, 249 F.2d 127, 128 (D.C. Cir. 1957) (holding that ethical society qualifies as a “religious corporation or society” under District of Columbia Tax Statute, and its building is entitled to tax exemption; belief in a Supreme Being or supernatural power is not essential to qualify for tax exemption accorded to “religious corporations,” “churches,” or “religious societies”). Compare EEOC v. United Health Programs of Am., Inc., 213 F. Supp. 3d 377, 402 (E.D.N.Y. 2016) (holding, where plaintiff alleged harassment or denial of religious accommodation, that employer’s use of conflict resolution program known as “Onionhead” or “Harnessing Happiness” was a “religion” within the meaning of Title VII, since program’s system of beliefs and practices was more than intellectual and involved ultimate concerns signifying religiosity, including chants, prayers, and mentions of God, transcendence, and souls), with Cavanaugh v. Bartelt, 178 F. Supp. 3d 819, 829-30 (D. Neb. 2016) (ruling that allegation one is a “Pastafarian,” a believer in the divine “Flying Spaghetti Monster” who practices the religion of “FSMism,” was not a religion within the meaning of Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 1983, or Constitution, but instead “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education”), aff’d, No. 16-2105 (8th Cir. Sept. 7, 2016).
[36] See EEOC v. Red Robin Gourmet Burgers, Inc., No. C04–1291JLR, 2005 WL 2090677, at *3 (W.D. Wash. Aug. 29, 2005) (denying employer’s motion for summary judgment on religious accommodation claim arising from employee’s refusal to cover his Kemetic religious tattoos to comply with employer’s dress code).
[37] See Fallon, 877 F.3d at 491.
[38] Dockery v. Maryville Acad., 379 F. Supp. 3d 704, 718 n.18 (N.D. Ill. 2019) (ruling that “while the ‘validity’ of a religious belief cannot be questioned, ‘the threshold question of sincerity . . . must be resolved in every case’” (quoting United States v. Seeger, 380 U.S. 163, 185 (1965))).
[39] See Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443 (5th Cir. 2011) (reciting prima facie case for harassment because of religion without reference to inquiry into sincerity of religious belief); Dixon v. Hallmark Cos., 627 F.3d 849 (11th Cir. 2010) (analyzing sincerity of religious belief only with respect to failure-to-accommodate claim, not with respect to discriminatory termination claim).
[40] Cf. Moussazadeh v. Tx. Dep’t of Crim. Just., 703 F.3d 781, 790 (5th Cir. 2012) (case arising under Religious Land Use and Institutionalized Persons Act (RLUIPA)).
[41] Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452 (7th Cir. 2013) (holding that inquiring into sincerity is limited to determining if the asserted belief or practice is in fact the employee’s own religious belief; it should not entail considering any matters such as whether employee had a true conversion experience or whether the practices are embedded in his cultural and family upbringing); see also Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 716 (1981) (“Particularly in this sensitive area [where employee had quit job producing armaments citing religious objections and claimed that state’s denial of unemployment compensation violated the First Amendment], it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker [another Jehovah’s Witness who was willing to take the same job] more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.”).
[42] Davis v. Ft. Bend Cnty., 765 F.3d 480, 486 (5th Cir. 2014) (quoting Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013)).
[43] Grayson v. Schuler, 666 F.3d 450, 454-55 (7th Cir. 2012) (finding in RLUIPA case that Nazirite prisoner’s asserted belief in not cutting his hair was sincerely held).
[44] EEOC v. Union Independiente De La Autoridad De Acueductos, 279 F.3d 49, 57 (1st Cir. 2002).
[45] See, e.g., id. (holding that evidence the employee had violated a number of tenets of his professed Seventh Day Adventist faith was sufficient to create a triable issue of fact for jury); Hansard v. Johns-Manville Prods. Corp., No. 1902, 1973 WL 129, at *2 (E.D. Tex. Feb. 16, 1973) (employee’s contention that he objected to Sunday work for religious reasons was undermined by his very recent history of Sunday work); see also Hussein v. Waldorf-Astoria, 134 F. Supp. 2d 591, 596 (S.D.N.Y. 2001) (employer had a good faith basis to doubt sincerity of employee’s professed religious need to wear a beard because he had not worn a beard at any time in his fourteen years of employment, had never mentioned his religious beliefs to anyone at the hotel, and simply showed up for work one night and asked for an on-the-spot exception to the no‑beard policy), aff’d, 2002 WL 390437 (2d Cir. Mar. 13, 2002).
[46] See, e.g., Brown v. Gen. Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979) (“[42 U.S.C.] § 2000e-2(a)(1) does not require an employer to reasonably accommodate the purely personal preferences of its employees” and thus would not have required the employer in this case to bear the costs of “excusing vast numbers of employees who wish to have Friday night off for secular reasons”); Dachman v. Shalala, 9 F. App’x 186, 192 (4th Cir. 2001) (holding that employer not required to accommodate Jewish employee’s desire to leave work earlier on Friday afternoon to pick up Challah bread instead of doing it on Thursday evening; “Title VII does not protect secular preferences” (quoting Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 682 (9th Cir. 1998))).
[47] See, e.g., Union Independiente, 279 F.3d at 57 (fact that employee initially “objected only to certain membership requirements” and “voiced his opposition to any form of union membership after UIA agreed to accommodate him with respect to each practice he had identified” gave rise to jury issue on sincerity).
[48] See, e.g., EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997) (en banc) (finding that Jewish employee proved her request for leave to observe Yom Kippur was based on a sincerely held religious belief even though she had never in her prior eight-year tenure sought leave from work for a religious observance, and conceded that she generally was not a very religious person, where the evidence showed that certain events in her life, including the birth of her son and the death of her father, had strengthened her religious beliefs over the years); Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994) (holding that employee held sincere religious belief against working on Saturdays, despite having worked the Friday night shift at plant for approximately seven months after her baptism, where seventeen months intervened before employee was next required to work on Saturday and employee’s undisputed testimony was that her faith and commitment to her religion grew during this time); Cunningham v. City of Shreveport, 407 F. Supp. 3d 595, 609-10 (W.D. La. 2019) (holding that disputed material facts precluded summary judgment on sincerity where employee who previously grew beard during vacations and extended weekends asserted new religious adherence prompted wearing beard full-time); EEOC v. IBP, Inc., 824 F. Supp. 147, 151 (C.D. Ill. 1993) (holding that Seventh-day Adventist employee’s previous absence of faith and subsequent loss of faith did not prove that his religious beliefs were insincere at the time that he refused to work on the Sabbath); see also Union Independiente, 279 F.3d at 57 & n.8 (noting the fact that the alleged conflict between plaintiff’s beliefs and union membership kept changing might call into question the sincerity of the beliefs or “might simply reflect an evolution in plaintiff’s religious views toward a more steadfast opposition to union membership”).
[49] See EEOC v. Alamo Rent-A-Car, LLC, 432 F. Supp. 2d 1006, 1012 (D. Ariz. 2006) (finding that it was Muslim employee’s sincerely held religious observance to wear headscarf during Ramadan, even though she did not wear it the rest of the year).
[50] See EEOC v. Triangle Catering, LLC, No. 5:15-CV-00016-FL, 2017 WL 818261, at *9 (E.D.N.C. Mar. 1, 2017) (holding that reasonable factfinder could conclude employee had sincerely held religious belief in wearing religious garb if it credited his explanation for not having worn it to job interview for fear of hiring discrimination).
[51] See Commission Guidelines, 29 C.F.R. § 1605.1; Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452-54 (7th Cir. 2013) (holding that employee presented sufficient evidence to show that his request to attend his father's funeral in Nigeria to perform specific rites, traditions, and customs “was borne from his own personally and sincerely held religious beliefs” because “participating in the rites and traditions identified by his father is a necessary part of [the employee’s] religious observance” even though employee’s religious practices “were not identical to the religious practices his family observes in Nigeria”).
[52] Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 475 (7th Cir. 2001) (finding that employee’s belief that she needed to use the phrase “Have a Blessed Day” was a religious practice covered by Title VII even though using the phrase was not a requirement of her religion); Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); see also Adeyeye, 721 F.3d at 452 (“It is not within our province to evaluate whether particular religious practices or observances are necessarily orthodox or even mandated by an organized religious hierarchy.”).
[53] Title 42 U.S.C. § 2000e-2(a) applies to employers with fifteen or more employees. See 42 U.S.C. § 2000e(b). Section 2000e-2(b) applies to employment agencies, stating it is unlawful for employment agencies to “fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his . . . religion . . . or to classify or refer for employment any individual on the basis of his . . . religion . . . .” Section 2000e-2(c) applies to unions, stating it is unlawful for unions to “(1) to exclude or expel from membership, or otherwise to discriminate against, any individual because of his . . . religion . . . ; (2) to limit, segregate or classify its membership or applicants . . . or to refuse to refer for employment any individual . . . because of such individual’s . . . religion . . . ; or (3) to cause or attempt to cause an employer to discriminate . . . in violation of this section.”
[54] See Threshold Issues, supra note 14.
[55] See, e.g., EEOC v. Union Independiente De La Autoridad De Acueductos, 279 F.3d 49 (1st Cir. 2002); Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066 (N.D. Ind. 2001). For further discussion see infra §§ 12-II, 12-III, and 12-IV, including 12-IV-C-5.
[56] See Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69 (1987) (holding that unions violated “§ 703(c)(1) [of Title VII, which] makes it an unlawful practice for a Union to ‘exclude or to expel from its membership, or otherwise to discriminate against, any individual’” when they “ignored [racial] discrimination claims . . . , knowing that the employer was discriminating in violation of the contract”); Rainey v. Town of Warren, 80 F. Supp. 2d 5, 17 (D.R.I. 2000) (“It is axiomatic that a union’s failure to adequately represent union members in the face of employer discrimination may subject the union to liability under either Title VII or its duty of fair representation.”). To the extent it has been held that a union cannot be held liable where it knowingly acquiesces in discrimination, the EEOC disagrees. See EEOC v. Pipefitters Ass’n Local Union 597, 334 F.3d 656 (7th Cir. 2003); see also Burton v. Freescale Semiconductor, Inc., 789 F.3d 222, 229 (5th Cir. 2015) (“A staffing agency is liable for the discriminatory conduct of its joint-employer client if it participates in the discrimination, or if it knows or should have known of the client’s discrimination and fails to take corrective measures within its control.”).
[57] Section 702(a) of Title VII, 42 U.S.C. § 2000e-1(a), provides:
[Title VII] shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
Section 703(e)(2) of Title VII, 42 U.S.C. § 2000e-2(e)(2) provides:
[I]t shall not be an unlawful employment practice for a school, college, university, or educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
The Americans with Disabilities Act (ADA) also provides religious entities with two defenses to claims of discrimination that arise under Title I, the ADA’s employment provisions. The first provides that “[t]his subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.” 42 U.S.C. § 12113(d)(1). The second provides that “[u]nder this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.” 42 U.S.C. § 12113(d)(2).
[58] Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000); see also Garcia v. Salvation Army, 918 F.3d 997, 1003 (9th Cir. 2019) (“In applying the [religious organization exemption], we determine whether an institution’s ‘purpose and character are primarily religious’ by weighing ‘[a]ll significant religious and secular characteristics.’” (quoting EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988)) (second alteration in original)); LeBoon v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 226 (3d Cir. 2007) (applying similar “primarily religious” standard); Killinger v. Samford Univ., 113 F.3d 196, 198‑99 (11th Cir. 1997) (looking at specific facts to determine whether university was “religious” or “secular”).
[59] LeBoon, 503 F.3d at 226; but see Spencer v. World Vision, Inc., 633 F.3d 723, 730-33 (O’Scannlain, J. concurring) (expressing concern that “several of the LeBoon factors could be constitutionally troublesome if applied to this case”).
[60] In Hall, 215 F.3d at 624-25, the Sixth Circuit, looking to “all the facts,” found that a college of health sciences was a Title VII religious organization because it was an affiliated institution of a church-affiliated hospital, it had a direct relationship with the Baptist church, and the college atmosphere was permeated with religious overtones. In Spencer v. World Vision, Inc., 633 F.3d 723, 724 (9th Cir. 2011) (per curiam), the Ninth Circuit held that an entity is “eligible” for the exemption, at least, if the entity (1) is organized for a religious purpose; (2) is engaged primarily in carrying out that religious purpose; (3) holds itself out to the public as an entity for carrying out that religious purpose; and (4) does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts. One judge in Spencer took the view that the exemption is met if the entity is a non-profit and satisfies the first three factors, id. at 734 (O’Scannlain, J., concurring), and another judge took the view that the Salvation Army, for example, would satisfy the “nominal amounts” standard of the fourth factor, notwithstanding that it generates a large-dollar amount of sales revenue, because it “gives its homeless shelter and soup kitchen services away, or charges nominal fees.” Id. at 747 (Kleinfeld, J., concurring). In Garcia, 918 F.3d at 1003-04, the Ninth Circuit held that the Salvation Army is a religious organization under Title VII by applying the Spencer test under either judge’s formulation. In LeBoon, 503 F.3d at 226-29, the Third Circuit found that a Jewish community center was a Title VII religious organization where, among other factors, the center “identified itself as Jewish,” relied on coreligionists for financial support, offered instructional programs with Jewish content, began its Board of Trustees meetings with biblical readings, and involved rabbis from three local synagogues in its management). See also Killinger, 113 F.3d at 199-200 (university founded as a theological institution by the Alabama Baptist State Convention qualified as a “religious educational institution” under Title VII; the court noted that all Trustees must be Baptist, the Convention is the university’s largest single source of funding, and the school’s charter designates its chief purpose as “the promotion of the Christian Religion throughout the world by maintaining and operating … institutions dedicated to the development of Christian character in high scholastic standing.”).
[61] LeBoon, 503 F.3d at 229 (holding that a Jewish community center was a religious organization under Title VII, despite engaging in secular activities such as secular lectures and instruction with no religious content, employing overwhelmingly Gentile employees, and failing to ban non-kosher foods, and noting that a religiously affiliated newspaper and a religious college had also been found covered by the exemption). However, in LeBoon, the court did state that “the religious organization exemption would not extend to an enterprise involved in a wholly secular and for-profit activity.” LeBoon, 503 F.3d at 229; see also Townley Eng’g & Mfg. Co., 859 F.2d at 619 (holding that evidence the company was for profit, produced a secular product, was not affiliated with a church, and did not mention a religious purpose in its formation documents, indicated that the business was not “primarily religious” and therefore did not qualify for the religious organization exemption). In Garcia v. Salvation Army, 918 F.3d 997, 1003 (9th Cir. 2019), the court cited Townley as the governing precedent for defining a religious organization.
[62] In Hobby Lobby, a case interpreting the term “person” under RFRA, the Supreme Court briefly referenced Title VII’s religious organization exemption in response to the U.S. Department of Health and Human Services’ (HHS) argument that “statutes like Title VII . . . expressly exempt churches and other nonprofit religious institutions but not-for-profit corporations.” 573 U.S. at 716. The Court did not expressly agree with HHS’s characterization but noted that other statutes “do exempt categories of entities that include for-profit corporations from laws that otherwise require these entities to engage in activities to which they object on grounds of conscience.” Id. “If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations.” Id. at 717. It should be noted that, despite HHS’s assertion in its Hobby Lobby brief, section 702(a) does not expressly distinguish “religious” entities based on for-profit or nonprofit status.
[63] Cf. id. at 702, 708 (in a non-Title VII case, rejecting the argument that “‘for-profit, secular corporations cannot engage in religious exercise’ within the meaning of [the Religious Freedom Restoration Act (RFRA)] or the First Amendment,” and holding that RFRA’s protections for any “person” whose religious free exercise is substantially burdened by the government is not limited to nonprofits and includes for-profit closely held corporations providing secular goods or services because “no conceivable definition of the term [‘person’] includes natural persons and nonprofit corporations, but not for-profit corporations”); see Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 349 (1987) (O’Connor, J., concurring) (recognizing that it is an open question regarding application of Title VII’s religious organizations exemption under section 702 to for-profit organizations, specifically mentioning possible Establishment Clause issues with respect to for-profit organizations).
[64] 42 U.S.C. § 2000e-1(a). The Supreme Court, in dicta in a case focused on religious discrimination, has characterized section 702 by stating it “exempts religious organizations from Title VII’s prohibition against discrimination on the basis of religion.” Amos, 483 U.S. at 329. Section 703(e)(2) states, “it shall not be an unlawful employment practice” for certain schools, colleges, universities, or other educational institutions “to hire or employ employees of a particular religion.” 42 U.S.C. § 2000e-2(e)(2).
[65] See Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011) (holding that exemption “does not exempt religious organizations from Title VII’s provisions barring discrimination on the basis of race, gender, or national origin”); Boyd v. Harding Acad. of Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996) (stating that the exemption “does not … exempt religious educational institutions with respect to all discrimination”); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 173 (2d Cir. 1993) (“religious institutions that otherwise qualify as ‘employer[s]’ are subject to Title VII provisions relating to discrimination based on race, gender and national origin”); Rayburn v. Gen. Conf. of Seventh-day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (“While the language of § 702 makes clear that religious institutions may base relevant hiring decisions upon religious preferences, Title VII does not confer upon religious organizations a license to make those same decisions on the basis of race, sex, or national origin.”); cf. Garcia, 918 F.3d at 1004-5 (holding that Title VII retaliation and hostile work environment claims related to religious discrimination were barred by religious organization exception, but adjudicating disability discrimination claim on the merits).
[66] 42 U.S.C. § 2000e-2(e) (“Notwithstanding any other provision of [Title VII], it shall not be an unlawful employment practice for [certain religious educational organizations] . . . to hire and employ employees of a particular religion . . . .”).
[67] Courts take varying approaches regarding the causation standard and proof frameworks to be applied in assessing this defense. See Kennedy, 657 F.3d 189 at 193-94 (holding that plaintiff’s claims of discharge, harassment, and retaliation based on religion were covered by section 702(a) religious exemption and thus barred); Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 141 (3d Cir. 2006) (“Thus, we will not apply Title VII to [plaintiff’s sex discrimination] claim because Congress has not demonstrated a clear expression of an affirmative intention that we do so in situations where it is impossible to avoid inquiry into a religious employer's religious mission or the plausibility of its religious justification for an employment decision.”); DeMarco, 4 F.3d at 170-71 (“[T]he [McDonnell Douglas] inquiry is directed toward determining whether the articulated purpose is the actual purpose for the challenged employment-related action.”); EEOC v. Miss. Coll., 626 F.2d 477, 485 (5th Cir. 1980) (holding race and sex discrimination claims barred by section 702 exemption where religious employer presents “convincing evidence” that employment practice was based on the employee’s religion).
[68] “For the purposes of this subchapter … [t]he term “religion” includes all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j).
[69] See Curay-Cramer, 450 F.3d at 141 (distinguishing the case “from one in which a plaintiff avers that truly comparable employees were treated differently following substantially similar conduct”); DeMarco, 4 F.3d at 171 (stating pretext inquiry “focuses on . . . whether the rule applied to the plaintiff has been applied uniformly”); EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1368 n.1 (9th Cir. 1986) (finding that Title VII’s exemption did not apply when the religious employer’s practice and justification were “conclusive[ly]” a pretext for sex discrimination).
[70] See Curay-Cramer, 450 F.3d at 141 (“[T]he existence of [section 702(a)] and our interpretation of its scope prevent us from finding a clear expression of an affirmative intention on the part of Congress to have Title VII apply when its application would involve the court in evaluating violations of [Catholic] Church doctrine.”); DeMarco, 4 F.3d at 170-71 (“The district court reasoned that, where employers proffered religious reasons for challenged employment actions, application of the McDonnell Douglas test would require ‘recurrent inquiry as to the value or truthfulness of church doctrine,’ thus giving rise to constitutional concerns. However, in applying the McDonnell Douglas test to determine whether an employer’s putative purpose is a pretext, a fact-finder need not, and indeed should not, evaluate whether a defendant’s stated purpose is unwise or unreasonable. Rather, the inquiry is directed toward determining whether the articulated purpose is the actual purpose for the challenged employment-related action.” (citations omitted)); cf. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014) (in determining whether an agency rule contravened a closely held corporation’s rights under the Religious Freedom Restoration Act, “it is not for the Court to say that . . . religious beliefs are mistaken or unreasonable”; rather the Court’s “‘narrow function . . . is to determine’ whether the plaintiffs’ asserted religious belief reflects ‘an honest conviction’”).
[71] Fremont Christian Sch., 781 F.2d at 1367 n.1; see also Miss. Coll., 626 F.2d at 486 (if evidence disclosed that the college “in fact” did not consider its religious preference policy in determining which applicant to hire, section 702 did not bar EEOC investigation into applicant’s sex discrimination claim).
[72] Fremont Christian Sch., 781 F.2d at 1366 (quoting Miss. Coll., 626 F.2d at 485).
[73] See Garcia v. Salvation Army, 918 F.3d 997, 1007 (9th Cir. 2019) (holding that Title VII’s religious organizations exemption is not jurisdictional and can be waived if not timely raised in litigation). “Because Congress did not rank the religious exemption as jurisdictional, this Court will ‘treat the restriction as nonjurisdictional in character.’” Smith v. Angel Food Ministries, Inc., 611 F. Supp. 2d 1346, 1351 (M.D. Ga. 2009) (quoting Arbaugh, 546 U.S. 500, 515 (2006)).
[74] See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987) (addressing the issue of whether the § 702 exemption to the secular nonprofit activities of religious organizations violates the Establishment Clause of the First Amendment, the Court held that “as applied to the nonprofit activities of religious employers, § 702 is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions”); Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011) (“The revised [religious organization exemption] provision, adopted in 1972, broadens the exemption to include any activities of religious organizations, regardless of whether those activities are religious or secular in nature.”).
[75] Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991) (holding religious organization exemption barred religious discrimination claim by parochial school teacher who was discharged for failing to follow church canonical procedures with respect to annulment of a first marriage before remarrying).
[76] See 42 U.S.C. § 2000e(j) (defining religion to include “all aspects of religious observance and practice, as well as belief”); see also Little, 929 F.2d at 951 (concluding that “the permission to employ persons ‘of a particular religion’ includes permission to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts”).
[77] Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000); see, e.g., Killinger v. Samford Univ., 113 F.3d 196, 200 (11th Cir. 1997) (holding that under religious organization exemption School of Divinity need not employ professor who did not adhere to the theology advanced by its leadership); Little, 929 F.2d at 951 (holding that religious organization exemption barred religious discrimination claim challenging parochial school’s termination of teacher who had failed to validate her second marriage by first seeking an annulment of her previous marriage through the canonical procedures of the Catholic church).
[78] See Hall, 215 F.3d at 625 (finding that Title VII’s religious organization exemption was not waived by the employer’s receipt of federal funding or holding itself out as an equal employment opportunity employer); Little, 929 F.3d at 951 (finding that Title VII’s religious organization exemption was not waived by Catholic school knowingly hiring a Lutheran teacher); see also Garcia v. Salvation Army, 918 F.3d 997, 1007 (9th Cir. 2019) (holding that Title VII’s religious organization exemption is not jurisdictional and can be waived).
[79] “In this context, there are circumstances, like those presented here, where a religious institution's ability to ‘create and maintain communities composed solely of individuals faithful to their doctrinal practices’ will be jeopardized by a plaintiff's claim of gender discrimination.” Curay-Cramer, 450 F.3d at 140-42 (affirming dismissal under the religious organization exemption and First Amendment grounds of Catholic school teacher’s claim that her termination for signing pro-choice newspaper advertisement constituted sex discrimination under Title VII; evaluating the plaintiff’s claim that male employees were treated less harshly for different conduct that violated church doctrine (e.g., opposition to the Iraq war) would require the court to “measure the degree of severity of various violations of Church doctrine” in violation of the First Amendment); see also Miss. College, 626 F.2d at 485 (holding that a plaintiff is barred from proceeding with a Title VII suit if a religious employer presents “convincing evidence” that the employment practice was based on a religious preference).
[80] Id. at 141 (“We distinguish this case from one in which a plaintiff avers that truly comparable employees were treated differently following substantially similar conduct . . . Requiring a religious employer to explain why it has treated two employees who have committed essentially the same offense differently poses no threat to the employer's ability to create and maintain communities of the faithful.”)
[81] 565 U.S. 171 (2012).
[82] Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049, 2061 (2020).
[83] Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188-89 (2012).
