EEOC issues proposed updates on religious bias

Here are 10 quick takes.

The Equal Employment Opportunity Commission issued on Tuesday a proposed update to the Religious Discrimination section of its Compliance Manual. The current section of the Compliance Manual has not been updated since 2008.

The proposed section is available for public comment until December 17. The EEOC will take the feedback into account and then will issue a finalized version.

Quickly. Before January 20. 

Much of the new section is consistent with what we already knew about religious discrimination. I won't go through all of that again, but here is some of the more interesting or controversial material in the new document.

No. 1: The EEOC says that it and other government entities are required by the U.S. Constitution to "analyze cases neutrally and without any hostility to religion or religious viewpoints," a reference to the Supreme Court's Masterpiece Cakeshop decision issued in 2018.

No. 2: Two giant exemptions. The proposed section contains a thorough discussion of the "religious organization" exemption in Title VII, which allows these organizations to "discriminate" based on religion with respect to "work connected with the carrying on by" the organization "of its activities." (Put in simpler terms, and as an example, it would not be illegal for a Jewish synagogue to refuse to hire a Catholic to lead its youth group.)

There is also a thorough discussion of "the ministerial exception," which means that the courts will not interfere in employment decisions "involving selection, supervision, and removal" of employees who play "certain key roles" "that are essential to the institution's central mission."

Here's what I wrote in 2012 about the Supreme Court's "ministerial exception" decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC:

In a nice victory for religious employers, the Supreme Court unanimously held that there is indeed such a thing as a "ministerial exception" to the federal anti-discrimination laws arising from the Establishment and Free Exercise clauses of the First Amendment, and that it applies to people other than the clergy. The plaintiff in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was a teacher who was formally considered a "minister" in the church and taught religion and led devotions and worship services, but who spent the majority of her time teaching "secular" subjects. She alleged that her employment was terminated in retaliation for exercising her rights under the Americans with Disabilities Act. Although many lower courts had recognized the ministerial exception, the Supreme Court had not addressed the issue. The EEOC and the government had argued unsuccessfully that the exception was unnecessary. The decision means that, if a court finds that the ministerial exception applies to a case, the case will be dismissed. (Religious employers who are not Protestant Christians will be particularly interested in the concurring opinion by Justices Samuel Alito and Elena Kagan -- not a combination you see every day! -- in which they provide an excellent discussion of how the exception should apply to employees who perform religious functions but are not "ministers.")

No. 3: It may or may not be OK to proselytize at work. The proposed section doesn't take a hard line against proselytizing, and recognizes that some employees' religious beliefs may actually require them to proselytize. But "[w]hen an employee expressly objects to particular religious expression, unwelcomeness is evident," and then continued proselytizing may cross the line and become harassment. (Unwelcomeness may also be evident from body language or other signs.)

"Woe be unto to me if I don't try to convert you at the office!"

No. 4: Not all "insensitive" behavior related to religion is illegal or harassing.
If the behavior or remarks are isolated and not "extremely severe," then they're probably not unlawful. The EEOC cites court decisions saying that these actions, standing alone, didn't cut it as "religious harassment":

  • Sending a religious co-worker an invitation to a same-sex wedding.
  • Inviting a co-worker to come to church.
  • Asking a religious employee to "swear on a Bible . . . and telling her that people did not like her 'church lady act.'"
  • Telling a Rastafarian employee that his "'dread things' made him look too 'radical.'"

No. 5: Employers may have to accommodate employees with traditional religious beliefs. The EEOC uses as an example an employer with "a policy that all employees in its retail stores must wear shirts conveying messages celebrating LGBTQ Pride in the month of June . . .." If an employee has a religious objection to wearing the shirt, the employer "may have an obligation to accommodate." Or, if an employer has a wellness program with classes that incorporate Eastern religious concepts (as do some yoga or meditation classes), it would have to allow employees with religious objections to opt out.

(On the other hand, an employer does not have to accommodate an employee who objects to mandatory training that emphasizes respect for others' religious beliefs or lack of belief, or non-discrimination based on sexual orientation.)

No. 6: "Magic words" are not required for a valid request for religious accommodation. And if the employee doesn't provide enough information, the employer should follow up and get more details.

"Say the secret woid, and you'll get an accommodation!"

No. 7: "Interactive process" is encouraged.
Under the Americans with Disabilities Act, an employer considering a disability-related accommodation request should engage in an "interactive process" with the applicant or employee making the request. The EEOC encourages employers considering religious accommodations to do the same.

No. 8: Accommodation of "conscientious objection" may be required. The proposed section uses the example of a Labor and Delivery nurse who has a religious objection to participating in abortions. Even if it might be an undue hardship to let the nurse swap duties on an ad hoc basis with other nurses (and it might not), the employer should consider options such as a lateral transfer to another department where the nurse would not be asked to assist with abortions.

No. 9: Fear of "the floodgates" is not an undue hardship. The following is a true story. Many years ago, in a very Baptist region of my state, a handful of devout Baptists at a client that operated 24/7 asked to be excused from work on Sundays. Virtually the entire workforce was Baptist, so management was terrified that if they made the accommodation and word got out, they'd never be able to get anyone to work on Sunday. The EEOC's proposed section says that this fear would not be a valid reason for denying the requested accommodation. Fortunately, in my true story, the managers didn't say no. They overcame their fears, accommodated the employees, and the "floodgates" never opened because the rest of the workforce just wasn't that devout. The EEOC's proposed guidance says that an employer can base an "undue hardship" claim on "the number of individuals who will in fact need a particular accommodation." (Emphasis added.) But "[a] mere assumption that many more people with the same religious practices . . . may seek accommodation is not evidence of undue hardship."

No. 10: Secular observance of religious holidays is not prohibited by Title VII. Just in time for the holiday season! The proposed guidance says that wreaths and Christmas trees, and similar "secular" decorations in the workplace, do not have to be taken down even if they offend some employees who don't celebrate the holiday. The employer also doesn't have to give equal time to decorations related to holidays of other faiths that occur around the same time. 

"I am so relieved, ho-ho-ho!"

Image Credits: From flickr, Creative Commons license. Religious symbols by Ze'ev Barkan, preacher by daliscar1,
"You Bet Your Life" (starring Groucho Marx, 1950-61) by Insomnia Slept Here, Santa Claus by jmawork.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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