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EEOC issues new guidance on religious discrimination

10.01.2008

On July 22, 2008, the Equal Employment Opportunity Commission (EEOC) issued a new compliance manual section addressing religious discrimination under Title VII of the Civil Rights Act of 1964. The EEOC also issued a companion summary of the guidance titled “Questions and Answers: Religious Discrimination in the Workplace.” The agency explained that the new guidance was spawned by an increase in charges of religious discrimination, more religious diversity in the United States, and requests for guidelines from EEOC staff, employers, and the media.

Although it doesn’t make any policy changes, the guidance is lengthy and includes a comprehensive review of the relevant Title VII provisions and the EEOC’s policies on religious discrimination, harassment, and accommodations. The agency intends it to be a practical resource to guide employers in balancing the needs of workers in a diverse religious climate. Remember, you can’t rely on the new guidelines or any other EEOC guidance as a legal defense, but the documents are helpful in discerning the agency’s positions on various issues. They’re also sometimes persuasive to courts of law.

Some features of the new guidance

One of the most useful parts of the guidance is the portion construing the statutory term “religion.” The EEOC makes it clear that it interprets “religion” very broadly to include not only traditional organized religions like Christianity, Judaism, Islam, and Buddhism but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or seemingly illogical or unreasonable to others. Further, religious beliefs include theistic beliefs as well as nontheistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

Although the EEOC’s interpretation is very broad, it isn’t unlimited. The guidance makes clear that religion (in the EEOC’s view) typically concerns “ultimate ideas” about “life, purpose, and death.” Social, political, and economic philosophies and personal preferences aren’t protected by Title VII.

Religious discrimination involves, of course, the disparate treatment of similarly situated persons. The guidance addresses various types of religious discrimination and provides an example of an employer’s disparate treatment of religious expression in the workplace. In the example, an employer allows one secretary to display a Bible on her desk while telling another secretary to put the Koran out of view because it will make other employees uncomfortable. That would obviously violate Title VII, the EEOC explains.

According to the guidance, religious harassment occurs when an employee is required to abandon, alter, or adopt a religious practice as a condition of employment or when he’s subjected to unwelcome religion-based statements or conduct so severe or pervasive that he reasonably finds the work environment hostile or abusive and there’s a basis for employer liability. The bases of religious harassment mirror the quid pro quoand hostile environment types of sexual harassment with which most of you are familiar.

The bases for employer liability also mirror those of sexual harassment law: You are always liable for a supervisor’s harassment if it results in a tangible employment action. If it doesn’t, you may assert a defense by showing that (a) you 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 you provided or to avoid harm otherwise. You are liable for religious harassment by nonsupervisory employees if you knew or should have known about the harassment and failed to take prompt and appropriate corrective action.

Noting that Title VII requires employers to accommodate only religious beliefs that are “sincerely held” and can be accommodated without undue hardship, the guidance states that an employer with a bona fide doubt about the basis for an accommodation request may make a limited inquiry into the facts and circumstances of the employee’s claim. Under Title VII, you must show that a proposed religious accommodation requires more than a minimal cost or burden. That’s a lighter standard than the burden imposed by the Americans with Disabilities

What the new guidance means for you

As the EEOC notes, claims of religious discrimination and requests for religious accommodation are on the rise. Even if you’ve never had a religious discrimination or accommodation issue in the past, you very well might have one or more in the future. You may find the new Compliance Manual section and the accompanying “Questions and Answers: Religious Discrimination in the Workplace” (both available at www.eeoc.gov/policy/ docs/ religion.html) useful in understanding your obligations to prevent religious discrimination. But don’t rely on the new guidance as an alternative to actual legal advice.

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Copyright 2008 M. Lee Smith Publishers LLC

KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

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