Whenever there is a change in federal administrations, employers must be aware of how various employment laws, rules and regulations will change. One hot topic in employment law, which has seen significant change in recent years, is religious discrimination and accommodation of religious beliefs in the workplace.
This issue is pertinent, not only because of the recent change in administrations, but also because of the Equal Employment Opportunity Commission’s (“EEOC”) January 2021 revisions to the agency’s Compliance Manual Section on Religious Discrimination, which is the first such update since 2008. While the Compliance Manual does not have the force of law, it does establish how the EEOC analyzes claims of religious discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), and provides useful guidance to employers.
Background on Title VII
Title VII 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 brought by certain employees.
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 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.
Religious Discrimination and Accommodation Since 2008
Since 2008, the law continued to evolve, often spurred by advocacy from various constituencies.
- Different interest groups have taken steps to probe and test the limits of their civil rights in the courtroom.
- Employees have sought to enforce their rights to be free from discrimination based on their religious beliefs, sexual orientation and gender identity.
- Employers have advocated for their own religious freedom and free speech protections in the workplace.
Courts, the EEOC and legislatures have worked to resolve conflicts through legal interpretations, policy changes and enforcement actions, and new legislation. For example, during the period spanning 2008 to 2017, the EEOC experienced a surge in charges under Title VII alleging religion-based discrimination. Beginning in 2013, there has been a steady increase in EEOC sexual-orientation/gender-identity discrimination charges. In 2015, the EEOC, in a federal sector decision, determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. See Baldwin v. Dep’t of Transp., Appeal No. 0120133080 (July 15, 2015).
There have also been important religious discrimination and accommodation decisions handed down by the U.S. Supreme Court in recent years. For instance, in the case of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the Supreme Court ruled that the “ministerial exception,” which bars ministers from suing churches and other religious institutions for employment discrimination, also extends to suits brought by religious school teachers. The Supreme Court issued another landmark Title VII ruling in 2020 in the case of Bostock v. Clayton County, Georgia, in which the Supreme Court ruled that Title VII protects gay, lesbian and transgender employees from discrimination based on sex.
Other significant Title VII rulings in the last decade include Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which involved the question of whether a closely-held business has a constitutional right to discriminate based on its owner’s beliefs, and Burwell v. Hobby Lobby Stores, Inc., which held that the government cannot require certain employers to provide insurance coverage for birth control if they conflict with the employer’s religious beliefs.
2021 EEOC Guidance
The January 2021 EEOC guidance on religious discrimination and accommodation builds upon and clarifies many of the judicial, legislative and policy actions that have taken place since 2008. Some of the more noteworthy updates include:
Reasonable Accommodation. The guidance provides that an employer can reasonably accommodate an employee through flexible scheduling, voluntary swaps of shifts, or lateral transfers to enable religious observance. An employer can also modify workplace practices, policies, or procedures. For instance, the EEOC advises 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.
Undue Hardship. 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 the employee to wear something else. However, the employer can require the employee to attend diversity training that fosters respect for others.
In another example, the guidance notes that although certain religious beliefs might require proselytizing, conduct 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 such actions, such as proselytizing, the guidance explains that an employer should balance the employee’s religious practice with other employees’ rights not to be harassed for their own religious beliefs or lack thereof.
Religious discrimination and accommodation will almost certainly continue to be a hot employment law topic in the years ahead. Some of the important questions that we expect to be at the forefront of debate—and litigation, legislation and enforcement—include:
- What is the outside boundary of an employer’s right to exercise its religious beliefs in the workplace?
- What is the outside boundary of an employee’s right to exercise his or her religious beliefs in the workplace?
- What happens when an employer argues that compliance with Title VII infringes on an employer’s religious liberties?