The Equal Employment Opportunity Commission (EEOC) recently responded to an increase in religious discrimination claims by issuing compliance assistance focusing on the prevention of religious discrimination. The compliance assistance gives a broad interpretation of "religion" under Title VII and focuses on a series of employer and employee "best practices" in four areas: individual religious discrimination, religious harassment, reasonable accommodation and retaliation.
In defining "religion," the EEOC includes "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views" but which are not based on a belief in God. Further, the definition includes new religions, uncommon religions and religions that seem illogical or unreasonable to others. According to the EEOC, because the definition of religion is broad, the employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely-held religious belief. If, however, an employee requests religious accommodation and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.
Highlights of recommended best practices include:
A well-publicized and consistently applied anti-harassment policy that (1) covers religious harassment; (2) sets out prohibited conduct; (3) promises a prompt, effective investigation and corrective action; and (4) protects against retaliation.
Employers can amend current anti-harassment policies if religion is not already included. Employers also should highlight the policy's application to religion when conducting education and/or training.
Employers should immediately intervene when they become aware of objectively abusive or insulting conduct.
The EEOC places an affirmative obligation on the employer to step in even before an employee complains of harassment. The best practice is based on an "objective" standard, a difficult standard for front-line supervisors who often view workplace conduct subjectively, perhaps overlooking potentially actionable conduct. This is especially true if there are no employee complaints. Employers should train supervisors to spot and report questionable conduct to Human Resources for investigation. Human Resources can address the situation more objectively and consistently across departments.
Employers and employees should confer fully and promptly to share any necessary information about the religious belief and the available accommodations.
Although acknowledging that a face-to-face discussion is not required, the EEOC looks for a formalized process for addressing accommodation requests and expects the employer and employee to share information necessary in their attempts to resolve the conflict between religion and work. The employee best practices affirmatively state that it is the employee's responsibility to identify the nature of the conflict between work and their religious needs and provide enough information for the employer to use in identifying reasonable accommodations.
Employers do not have to provide an accommodation if it causes undue hardship.
Undue hardship in the religious context is a higher standard than under the Americans with Disabilities Act (ADA). For purposes of requests based on religion, an accommodation creates an undue hardship if it poses a "more than de minimis" cost or burden. Accommodations may include schedule changes (including voluntary swaps), change of job assignments and lateral transfers, modifying dress codes/appearance policies. Here are some examples in the healthcare setting:
Schedule change: A member of the housekeeping staff tells his supervisor on his first day of work that he follows Islamic practices and will need to pray at five specific times during the day in accordance with his religion. The hospital offers one 15-minute break during the morning and afternoon. According to the EEOC, the hospital will not suffer an undue hardship if the housekeeper takes the requested 5 prayer breaks that do not exceed the total 30 minutes otherwise allowed in the two breaks.
Objection to job duties: A pharmacist works at a large hospital at which more than one pharmacist is on duty during all hours of operation. The employee informs his employer that he refuses on religious grounds to participate in filling medical orders for patients that include contraceptives. The hospital may reasonably accommodate the employee by offering to allow him to signal to a co-worker who would take over servicing any patient medical order that includes contraceptives. But what if there is no other pharmacist on duty and the employee fails to fill patient medicine orders that includes contraceptives? The employer is not required to accommodate a request to remain in such a position yet avoid all situations where he might even briefly interact with pharmacy orders including contraceptives, or to accommodate a disruption of business operations. The employer may discipline or terminate the employee for not meeting legitimate expectations.
Lateral Transfer: A nurse who is a member of the Pentecostal faith was employed as a nurse assigned to the Labor and Delivery Unit. She advised the nurse manager that her faith forbids her from participating "directly or indirectly in ending a life," and that this proscription prevents her from assisting with abortions. She asked the hospital to accommodate her religious beliefs by allowing her to trade assignments with other nurses in the Labor and Delivery Unit as needed. The hospital concluded that it could not accommodate the employee within the Labor and Delivery Unit because there were not enough staff members able and willing to trade with her. The hospital instead offered to permit her to transfer, without a reduction in pay or benefits, to a vacant nursing position in the Newborn Intensive Care Unit, which did not perform any such procedures. The hospital's solution complies with Title VII. The hospital is not required to grant the employee's preferred accommodation where it has offered a reasonable alternative solution that eliminates the conflict between work and a religious practice or belief under its existing policies and procedures. If there had been no other position to which she could transfer, the employer would have been entitled to terminate her since it would pose an undue hardship to accommodate her in the Labor and Delivery Unit.
While the recent compliance assistance serves as guidance and is not binding, the EEOC will certainly defer to the guidance in investigating charges and courts may use these best practices as guidance in deciding religious discrimination cases. Employers should review the best practices and consider changes to policies and practices. The EEOC has made the following resources available on its web site:
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