KEEPING THE FAITH

Not since 1960, when John F. Kennedy's Roman Catholic faith became an issue during his presidential campaign, has religion been as prominent in our minds as it is today. With the increasing number of diverse groups from different religious backgrounds living in the United States, the Equal Employment Opportunity Commission has seen a sharp increase in claims of discrimination and harassment based on religion by all ethnic and religious groups. Since 1992, the EEOC has seen the number of complaints of discrimination and harassment based on religion more than double. The EEOC has taken new action in response to this pandemic rise in charges filed by employees.

In July 2008, the EEOC unanimously voted to issue Compliance Manual Section 12, addressing workplace discrimination, harassment and retaliation based on religion. The new Section 12 is primarily intended to benefit employers, but will also be used as a tool by EEOC staff when investigating claims based on religion. Section 12 includes a comprehensive review of the relevant provisions of Title VII of the Civil Rights Act of 1964, which seeks to ensure that individuals enjoy the freedom to exist, advance and succeed in the workplace, regardless of their religious values. Section 12 does not set forth new law or modify existing EEOC regulations on religious discrimination and harassment. Instead, it consolidates recent Title VII case law and the EEOC's position regarding issues surrounding religion.

The new Section 12 of the Compliance Manual seeks to highlight and clarify the law surrounding religion under Title VII. It also provides practical tips for employers to assist with workplace issues involving an employee's right to religious freedom balanced against the employer's need to maintain a productive work environment.

The Supreme Court has defined religion broadly under Title VII so as to include not only traditional, organized religions such as the monotheistic faiths (Christianity, Islam and Judaism), but also religious beliefs that are held by a few people or even one person. Although the courts broadly interpret religion so as to resolve doubts about certain practices and beliefs in favor of being characterized as "religious," this is not without limit. For example, the courts have held that religion must normally concern "ultimate ideas" about "life, purpose, and death." Further, the courts have held that personal preferences, political, economic, philosophical and social beliefs are not entitled to protection under Title VII.

An employer must look at each employee's acts on a case-by-case basis to determine whether the activity is religious and thus entitled to Title VII protection. In order for a practice that an employee engages in to be "religious," the act must be motivated by religious faith. For example, the same practice, such as a restricted diet, may be engaged in by a secular person for health reasons, and by another person for religious purposes. The focus is on the reason for the act, and not the act itself. Typical religious practices include but are not limited to: praying, wearing or displaying religious symbols or clothing, refraining from certain activities or attending worship services.

The religious belief must also be "sincerely held" to require a religious accommodation. Section 12 stresses that employers must assume that an employee's request for religious accommodation is based on a sincerely held religious belief. This is due to the broad definition of religion, which is so expansive that it assumes employers are incapable of knowing about all valid beliefs and practices that exist and warrant accommodation. But where there is doubt by the employer, the courts have recognized certain factors to help determine whether an employee's religious beliefs are sincerely held: whether the employee has behaved in a manner that is contradictory to the edicts of the employee's espoused religious faith, whether the employee previously requested the same accommodation for secular purposes and is now making the same request but for purported religious reasons, whether the requested accommodation sought has a benefit for secular purposes, and any other evidence the employer has to show that the employee is not seeking an accommodation for religious purposes.

Section 12 provides guidance to employers about religious accommodations. Those religious practices, observances and beliefs that are sincerely held must be accommodated where the accommodation does not pose an undue hardship on the employer. But the burden is on the employee to provide sufficient information that there is a conflict between a religious belief or practice and a job duty so that an accommodation is necessary. The employee must make a request for an accommodation; there is no obligation for the employer to offer an accommodation absent a request. Common examples of requests include modifications of work schedules to allow for attendance at worship services (such as church on Sunday mornings or Shabbat services on Friday evenings), allowing certain employees to be exempt from certain dress code or grooming rules (such as Sikhs who wear turbans or Muslim women who choose to wear head scarves), or exempting certain employees from certain activities that violate their religious beliefs (such as Jehovah's Witnesses attending birthday or holiday celebrations or Muslim employees attending events where alcohol is served).

An employer is entitled to refuse a religious accommodation where it would pose an undue burden or hardship. An employer must be able to demonstrate "more than a de minimis" cost or burden to make the requisite showing under Title VII. This is a less stringent requirement for employers to meet than the "undue hardship" requirement for mental or physical disability accommodations. But the burden of showing undue hardship under Title VII is still on the employer. Section 12 identifies the following factors for employers to consider: the cost in relation to the operating costs and size of the employer, and the number of people requesting the accommodation. The following specific examples are identified in Section 12 as instances where the cost may be deemed more than de minimis on the employer, thereby allowing the employer to reject the request for an accommodation: regular payment of overtime wages, affecting the rights of other employees who have earned job preference rights based on seniority, diminishing the efficiency in other jobs, infringing on other employees' job rights or benefits, detrimental effects on workplace safety, other employees are forced to carry the burden of the accommodated employee's hazardous or onerous work, and where the proposed accommodation conflicts with other existing laws.

In addition to religious discrimination, retaliation because an individual engages in a protected activity is also prohibited by Title VII. The EEOC considers a request for a religious accommodation a protected activity, and thus an employee cannot be retaliated against for making such a request. The Compliance Manual provides employers with tips to avoid retaliation claims. For example, employers are encouraged to train supervisors to be aware of their anti-retaliation obligations under Title VII. Employers are also encouraged to document the legitimate business reasons for disciplinary or performance-related actions taken against an employee, and then communicating those reasons to the employee so the likelihood of a retaliation claim is reduced.

The Compliance Manual also addresses harassment on the basis of an employee's religious beliefs. The analysis is to be conducted the same way the test is done for harassment on the basis of other proscribed Title VII grounds (race, sex, etc.). Quid pro quo harassment on the basis of religion occurs where the employee is required or coerced to adopt, change or abandon a religious practice or belief as a condition of employment. Hostile work environment religious harassment exists where the employee is subjected to unwelcome statements or conduct based on religion that is so severe or pervasive that the employee reasonably finds the work environment abusive. Section 12 provides a thorough discussion of the elements of both types of harassment and provides tips to help avoid harassment claims. For example, Section 12 states that the employer should have a publicized anti-harassment policy, should allow religious expression to the same extent other personal expression is allowed that is not harassing or disruptive, and the employer should immediately intervene when first aware of abusive or insulting conduct (even where no complaint has been made by an employee) to avoid further escalation of an incident.

We live in a diverse society with varied and prevalent religious beliefs. Strongly held religious beliefs can give rise to strife in the workplace where religious and non-religious employees feel that their rights are being infringed upon. In response to the rise of complaints based on religion, Section 12 of the new EEOC Compliance Manual provides employers with new tools to aid in the detection and prevention of harassment, discrimination and retaliation on the basis of religion. Although Section 12 does not change the existing law in this area, it provides much-needed guidance on a pervasive form of harassment, discrimination and retaliation. It would behoove employers to analyze their existing anti-harassment and anti-discrimination policies to determine whether modifications to these policies are necessary in light of the new tools provided by the EEOC.

Morin I. Jacob is of counsel to Liebert Cassidy Whitmore in their San Francisco office. The firm specializes in public sector labor and employment law.