What Happened?
On July 22, 2008, the EEOC voted unanimously to approve a new 94-page section of its Compliance Manual that addresses religious discrimination. The EEOC issued the new section of the Compliance Manual in response to an 100% increase in religious discrimination charges between 1992 and 2007 and a corresponding increase in litigation and inquiries from EEOC staff, employers and the media regarding religious discrimination.
What Does It Mean?
The new section of the EEOC Compliance manual summarizes the development of the law of religious discrimination in the courts and clarifies the EEOC's position on what constitutes religious discrimination, particularly where the EEOC's views differ from court decisions. Although the Compliance Manual does not have the force of a legal decision or an EEOC regulation, it does illustrate what EEOC investigators will consider unlawful and what positions the EEOC will adopt in litigation brought by the agency itself.
To assist employers in complying with the EEOC's view of the legal requirements of Title VII regarding religion, the EEOC has issued a Fact Sheet and a list of Employer Best Practices along with the new section of the Compliance Manual. Some of the important subjects relevant to private sector employers discussed in the Fact Sheet include:
May An Employer Question A Claim For Accommodation Based On Religion?
In some cases, yes. The Employer may question the need for accommodation and engage in a limited inquiry if it has doubts about the individual employee's sincerity about the request to engage in a religious practice while at work. For example, if the employee has acted in a manner that is significantly inconsistent with the underlying religious beliefs for which he seeks the accommodation, the Employer can ask the employee for an explanation.
Must The Employer Grant Every Legitimate Request For Accommodation?
Not necessarily. Legitimate requests may be rejected if they would result in an undue hardship on the Employer's business operations. Significantly, "undue hardship" under Title VII is a much lighter burden than "undue burden" under the Americans with Disabilities Act ("ADA"). The ADA requires the employer to demonstrate "significant difficulty and expense," while undue hardship under Title VII merely requires "more than de minimis" cost or burden. Thus, if an employee asks for an opportunity to pray at a specific time of day when it would jeopardize the attainment of an important work function, and it would be a significant cost to reschedule operations so as to permit the prayer at that time, the request for the prayer could be denied. Of course, these questions are almost always fact-intensive and require a case-by-case analysis.
The undue hardship rule also comes into play when granting a request for accommodation might cause a breach of the seniority clause in a collective bargaining agreement. Significantly, the EEOC Fact Sheet makes it clear that it would constitute an undue burden if granting the accommodation would deprive an employee of a position he or she would have otherwise obtained under a bona fide seniority system or collective bargaining agreement. The EEOC is quick to point out, however, that although the existence of a collective bargaining agreement or bona fide seniority system may protect a senior employee in the face of a request for accommodation, the employer must, nevertheless, still attempt to accommodate the religious based request through other means.
Does Resentment, Disgruntlement Or Jealousy Of Co-Workers Ever Constitute An Undue Hardship?
Possibly. The EEOC states that an undue hardship could exist if a "disruption of work" occurs within the workforce as a direct result of the accommodation. How extensive such a disruption would have to be would undoubtedly be determined on a case-by-case basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
