Over the last several presidential administrations, the independent U.S. Equal Employment Opportunity Commission (EEOC) has changed its enforcement priorities numerous times, most recently with a new guidance on religious discrimination and the accommodation of religious beliefs in the workplace.
Title VII of the1964 Civil Rights Act prohibits employers from discriminating against individuals because of their religion (or lack of religious belief) in hiring, firing, or any other terms and conditions of employment. The law also prohibits an employer from imposing religion on its employees, with the exception of religious institutions which are immune from federal employment-related civil rights statutes.
In addition, Title VII requires employers to reasonably accommodate the sincerely held religious beliefs and practices of applicants and employees, unless doing so would cause an undue hardship on the employer. A reasonable religious accommodation is considered to be an adjustment to the working environment that allows an employee to practice his or her religion.
The determination of whether a religious accommodation is reasonable requires a careful fact-based analysis, says attorney Karl Butterer of the law firm of Foster Swift Collins & Smith.
In January, the commission revised its compliance manual section on religious discrimination—the first such revision since 2008. While it does not have the force of law, the manual establishes how EEOC chooses to analyze religious discrimination claims under Title VII and in so doing offers useful guidance to employers, Butterer explains.
Since the manual’s previous revision in 2008, there have been a lot of changes in religious discrimination law, such as the clash between religious belief and new legal protections adopted regarding sexual orientation, particularly after the U.S. Supreme Court legalized gay marriage and then extended employment legal protections to LGBTQ employees in 2020.
The new EEOC guidance spells out that an employer can reasonably accommodate an employee’s religious observance needs through flexible scheduling, voluntary swaps of shifts, or lateral transfers. An employer also can choose to provide accommodation by modifying workplace practices, policies or procedures.
For example, the commission suggests that an employer could accommodate a pharmacist who has a religious objection to dispensing contraceptives by allowing a coworker to assist customers who seek to make those purchases, Butterer points out.
Under the guidance, factors to be considered when assessing undue hardship for an employer 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.”
By way of example, the guidance states if an employee does not want to wear a uniform supporting LGBTQ rights on religious grounds, the employer can reasonably accommodate the employee without undue hardship by permitting him or her to wear something else. “However, the employer can require the employee to attend diversity training that fosters respect for others,” Butterer adds.
In another example, the guidance says that although certain religious beliefs might require proselytizing by their adherents, conduct that is considered disruptive to the workplace may cause an undue hardship on the operation of a business even if it does not rise to the level of harassment under Title VII.
In considering whether to allow actions such as proselytizing, the guidance explains that an employer should balance the employee’s religious practice with other employees’ right not to be harassed for their own religious beliefs or lack of them.
“Religious discrimination and accommodation will almost certainly continue to be a hot employment law topic in the years ahead,” Butterer says.
He says that some of the important questions expected to be at the forefront of future debates—and which are likely to result in further litigation, legislation and enforcement activity—will deal with establishing the outside boundary for employees’ and employers’ rights to exercise their religious beliefs in the workplace.