Religious Accommodations in the Workplace

The Manual covers five major topics: coverage issues, disparate treatment, harassment, reasonable accommodation, and related forms of discrimination. It also “defines religious discrimination, discusses typical scenarios in which religious discrimination may arise, and provides guidance to employers on how to balance the needs of individuals in a diverse religious climate.” Manual at p. 3.

The information contained in the Manual is summarized in two companion documents issued by the agency: a question-and-answer fact sheet and a best practices booklet. Essentially, these documents are quick reference guides for employers: They provide plain-language answers to common questions and “best practice” strategies for employers to adopt in the workplace. When used in conjunction with the Compliance Manual, these resources are extremely useful tools for employers to use to prevent or eliminate religious discrimination in the workplace.

What Is 'Religion'?

Title VII defines “religion” broadly to include “all aspects of religious observance and practice as well as belief.” 42 U.S.C. ' 2000e(j). The Manual does not change the definition of “religion” under Title VII, but it does highlight the broad protection of the law. For example, religion includes not only traditional, organized religions but also religious beliefs that are new, uncommon, or that may even seem illegal or unreasonable to others. See Manual at p. 6-7. In addition, religion typically concerns “ultimate ideas about life, purpose and death,” while social, political, or economic philosophies, as well as personal preferences, are not religious beliefs protected by Title VII. Id. at p. 8.

The Manual emphasizes that determining whether a particular practice is “religious” depends on the employee's motivation rather than on the nature of the activity. Id. at p. 9. One employee may engage in a practice for religious reasons while another may engage in that same activity for secular reasons. For example, one employee may observe certain dietary restrictions (i.e., vegetarianism) as a religious requirement while another employee adheres to the same dietary restrictions to improve his or her health. Id. at fn. 30.

Employers are advised to examine each situation on a case-by-case basis before determining whether or not an employee's practice is “religious.” See Id. at p. 9. Furthermore, because the definition of religion is broad and may protect unfamiliar beliefs and practices, employers should ordinarily assume that an employee's beliefs and practices are religious unless the facts demonstrate otherwise.

Reasonable Accommodation

Title VII requires employers to accommodate only those religious beliefs and practices that are sincerely held and that can be accommodated without undue hardship. 42 U.S.C. ' 2000e(j). The Manual delves deeply into this requirement and also stresses the importance of employer-employee communication, cooperation and flexibility in searching for such an accommodation.

Title VII requires employers to accommodate only those religious beliefs that are “sincerely held.” 42 U.S.C. ' 2000e(j). “Like the 'religious' nature of a belief or practice, the 'sincerity' of an employee's stated religious belief is not typically in dispute.” See Manual at p. 13. Employers should not assume that an employee's religious belief is insincere because some of his or her practices deviate from the norm. See Id. at fn. 38. Nevertheless, there are some factors that may undermine an employee's assertion that the religious belief is sincere, including: whether the employee has behaved in a manner that is inconsistent with the professed belief; whether the accommodation sought was really for secular reasons; and whether the timing of the request renders it suspect. Id. at p. 13. On the whole, however, employers are advised to assume that the employee's request for religious accommodation is based on a sincerely held religious belief unless the facts demonstrate otherwise. Id. at p. 14.

The Request

The employee has the obligation to request a religious accommodation. No “magic words” are required: “To request an accommodation, the employee may use plain language and is not required to mention any particular terms such as 'Title VII' or 'religious accommodation'.” Id. at p. 47. However, the employee must provide enough information to make the employer aware that there exists a specific conflict between the employee's religious practice or belief and a job requirement. Id.

Although there is usually no reason to question whether the practice at issue is religious or sincerely held, the employer may ask for corroborating evidence ' such as written materials, the employee's own first-hand explanation, or third-party statements ' to verify the facts and circumstances of the employee's claim. Id. at p. 50. However, “employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.” Id. at p. 51.

What Is 'Reasonable'?

An employer is free to choose among various possible accommodations; however, the accommodation provided must be reasonable. Id. at pp. 51-2. The Manual explains that an accommodation that “merely lessens rather than eliminates the conflict between religion and work” is not reasonable. Id. at fn. 129. In addition, an accommodation is not reasonable if it provides a disadvantage to the employee's terms, conditions, or privileges of employment (e.g., results in a reduction in pay or loss of privileges). Id. at fn. 130.

Ultimately, reasonableness is a fact-specific determination to be made on a case-by-case basis. Id. at p. 53. Employers and employees are encouraged to communicate and work together to determine if a reasonable accommodation can be made.

Undue Hardship

An employer can refuse to provide a reasonable accommodation if doing so would impose an undue hardship. To demonstrate an undue hardship under Title VII, an employer must show a “more than de minimis” cost on the operation of the employer's business. Commission Guidelines, 29 C.F.R. '1065.2(e)(1). It is important to note that this is a lower standard for employers to satisfy than the “ undue hardship” defense under the Americans with Disabilities Act. See Manual at fn. 142.

Factors to be considered in determining if the cost of an accommodation is “more than de minimis” are “ the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need the particular accommodation.” Commission Guidelines, 29 C.F.R. ' 1065.2(e)(1). However, administrative costs necessary for the accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes or occasional/infrequent payments of overtime wages, are generally not considered “more than de minimis” costs. See Manual at fn. 150.

The Manual provides many helpful examples of costs or burdens that would likely impose an undue hardship. These include: requiring the employer regularly to incur overtime wage costs or hire additional employees; requiring the employer to engage in an activity that impairs workplace safety or security; requiring other employees to assume a disproportionate share of the workload involuntarily; or depriving other employees of a job preference or other benefit guaranteed by a seniority system or collective bargaining agreement. Id. at pp. 59-62.

An employer should not infer a “potential” or “hypothetical” hardship when faced with a religious accommodation request, but should rather rely on objective information. Id. at pp. 57-8. Merely assuming that other employees with the same religious background will ask for the same accommodation is also not evidence of undue hardship. Id. However, if it is determined that the employee's proposed accommodation would impose an undue hardship, the employer should explore alternative accommodations rather than deny the request all together. See Questions and Answers: Religious Discrimination in the Workplace, available at http://www.eeoc.gov/policy/docs/qanda_religion.html (last visited Dec. 4, 2008) (hereinafter “Q&A”).

Common Methods

The Manual emphasizes that an employer may use a variety of methods to provide reasonable accommodations to its employees. Some of the most common methods include:

• Schedule changes, voluntary substitutes, and shift swaps;
• Changing an employee's job tasks or providing a lateral transfer;
• Making an exception to dress and grooming rules;
• Use of a designated area in the work facility for religious observance;
• Allowing “charity-substitute” accommodations for employees who have a religious objection to joining or financially supporting a union or agency ( i.e., the equivalent of an employee's union dues or agency fees would be paid, either in full or in part, to a charity agreeable to the employee, the union, and the employer rather than to the union or agency); and
• Accommodating prayer, proselytizing, and other forms of religious expression. See Id.

With respect to the accommodation of prayer, proselytizing and other forms of religious expression, employers should consider the potential disruption, if any, that may result from permitting this expression of religious belief. See Manual at p.77. In determining whether permitting an employee to engage in religious expression in the workplace would impose an undue hardship, relevant considerations may include “the effect such expression has on co-workers, customers, or business operations.” See Q&A at question 13. However, where the expression is limited to use of a phrase or greeting, it is more difficult for the employer to demonstrate undue hardship. Id. On the other hand, “the employer is permitted to restrict the religious expression where it would cause customers or co-workers to reasonably perceive the materials to express the employer's own message, or where the item or message in question is harassing or disruptive.” Id.

Employer Best Practices

The Manual's companion document, Best Practices for Eradicating Religious Discrimination in the Workplace (the “Best Practices Booklet”), is an excellent resource for employers in responding to religious accommodation requests. Like the Manual, the Best Practices Booklet is divided into sections on disparate treatment, religious harassment and accommodation, with the accommodation section offering the most information. While these guidelines are not exhaustive, the following should be considered when responding to religious accommodation requests:

Employers should consider developing internal procedures for
processing and responding to religious accommodation requests. In this regard, employers may wish to train managers and supervisors on how to recognize religious accommodation requests and provide information about reasonable alternatives that are available. Employers may also wish to incorporate a discussion of religious expression, and the need for all employees to be sensitive to the beliefs and non-beliefs of others, into training provided to managers and employees.

Employers should not automatically reject a request for religious accommodation just because the accommodation may impose an undue hardship. Rather, employers should be flexible in evaluating whether or not an accommodation is feasible. If faced with an accommodation request that cannot be implemented, employers should consider offering alterative methods of accommodation on a temporary basis, while the parties explore the possibility of a more permanent accommodation. In this situation, an employer should also keep the employee apprised of the employer's effort to implement a permanent accommodation.

Employers are encouraged to be open and creative regarding work schedules, dress, grooming, and other requests that relate to religious expression. When evaluating these types of requests, employers should make reasonable efforts to accommodate the employee's desire to the extent practicable. For example, if an employee wants to wear a certain type of religious garb but has regular interactions with customers, the employer may consider whether it's possible for the employee to wear the garb in the company's uniform colors. Finally, before denying the request based on an “undue hardship,” employers are again reminded to consider alternative accommodations that could be adopted at a lower cost or with less disruption.

John D. Shyer, a member of this newsletter's Board of Editors, is a Labor and Employment Law Partner in the New York office of Latham & Watkins LLP. Amy S. Donovan is an associate in the firm's New York office.

On July 22, 2008, the Equal Employment Opportunity Commission (“EEOC”) issued a revised Compliance Manual Section regarding religious discrimination in the workplace. See EEOC Compliance Manual on Religious Discrimination (the “Manual”). Although the Manual does not purport to change EEOC policy, it does provide further clarification regarding the EEOC's application of Title VII with respect to religious discrimination. This article provides a general overview of the Manual and examines its guidance on the definition of “religion” as well as an employer's obligation to provide a reasonable accommodation.

Background

According to a press release from the EEOC, the Manual was issued “in response to an increase in charges of religious discrimination, increased religious diversity in the United States, and requests for guidance from stakeholders and agency personnel investigating and litigating claims of religious discrimination.” See Press Release: EEOC Issues Compliance Assistance on Religious Discrimination, Tuesday July 22, 2008, available at http://www.eeoc.gov/press/7-22-08.html. It does not replace or modify in any way the EEOC's existing policies on religious discrimination, 20 C.F.R.
' 1605 (2008). Rather, it is designed as a practical resource for employers in creating and maintaining a work environment that is free from religious discrimination and harassment.

The Manual covers five major topics: coverage issues, disparate treatment, harassment, reasonable accommodation, and related forms of discrimination. It also “defines religious discrimination, discusses typical scenarios in which religious discrimination may arise, and provides guidance to employers on how to balance the needs of individuals in a diverse religious climate.” Manual at p. 3.

The information contained in the Manual is summarized in two companion documents issued by the agency: a question-and-answer fact sheet and a best practices booklet. Essentially, these documents are quick reference guides for employers: They provide plain-language answers to common questions and “best practice” strategies for employers to adopt in the workplace. When used in conjunction with the Compliance Manual, these resources are extremely useful tools for employers to use to prevent or eliminate religious discrimination in the workplace.

What Is 'Religion'?

Title VII defines “religion” broadly to include “all aspects of religious observance and practice as well as belief.” 42 U.S.C. ' 2000e(j). The Manual does not change the definition of “religion” under Title VII, but it does highlight the broad protection of the law. For example, religion includes not only traditional, organized religions but also religious beliefs that are new, uncommon, or that may even seem illegal or unreasonable to others. See Manual at p. 6-7. In addition, religion typically concerns “ultimate ideas about life, purpose and death,” while social, political, or economic philosophies, as well as personal preferences, are not religious beliefs protected by Title VII. Id. at p. 8.

The Manual emphasizes that determining whether a particular practice is “religious” depends on the employee's motivation rather than on the nature of the activity. Id. at p. 9. One employee may engage in a practice for religious reasons while another may engage in that same activity for secular reasons. For example, one employee may observe certain dietary restrictions (i.e., vegetarianism) as a religious requirement while another employee adheres to the same dietary restrictions to improve his or her health. Id. at fn. 30.

Employers are advised to examine each situation on a case-by-case basis before determining whether or not an employee's practice is “religious.” See Id. at p. 9. Furthermore, because the definition of religion is broad and may protect unfamiliar beliefs and practices, employers should ordinarily assume that an employee's beliefs and practices are religious unless the facts demonstrate otherwise.

Reasonable Accommodation

Title VII requires employers to accommodate only those religious beliefs and practices that are sincerely held and that can be accommodated without undue hardship. 42 U.S.C. ' 2000e(j). The Manual delves deeply into this requirement and also stresses the importance of employer-employee communication, cooperation and flexibility in searching for such an accommodation.

Title VII requires employers to accommodate only those religious beliefs that are “sincerely held.” 42 U.S.C. ' 2000e(j). “Like the 'religious' nature of a belief or practice, the 'sincerity' of an employee's stated religious belief is not typically in dispute.” See Manual at p. 13. Employers should not assume that an employee's religious belief is insincere because some of his or her practices deviate from the norm. See Id. at fn. 38. Nevertheless, there are some factors that may undermine an employee's assertion that the religious belief is sincere, including: whether the employee has behaved in a manner that is inconsistent with the professed belief; whether the accommodation sought was really for secular reasons; and whether the timing of the request renders it suspect. Id. at p. 13. On the whole, however, employers are advised to assume that the employee's request for religious accommodation is based on a sincerely held religious belief unless the facts demonstrate otherwise. Id. at p. 14.

The Request

The employee has the obligation to request a religious accommodation. No “magic words” are required: “To request an accommodation, the employee may use plain language and is not required to mention any particular terms such as 'Title VII' or 'religious accommodation'.” Id. at p. 47. However, the employee must provide enough information to make the employer aware that there exists a specific conflict between the employee's religious practice or belief and a job requirement. Id.

Although there is usually no reason to question whether the practice at issue is religious or sincerely held, the employer may ask for corroborating evidence ' such as written materials, the employee's own first-hand explanation, or third-party statements ' to verify the facts and circumstances of the employee's claim. Id. at p. 50. However, “employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment.” Id. at p. 51.

What Is 'Reasonable'?

An employer is free to choose among various possible accommodations; however, the accommodation provided must be reasonable. Id. at pp. 51-2. The Manual explains that an accommodation that “merely lessens rather than eliminates the conflict between religion and work” is not reasonable. Id. at fn. 129. In addition, an accommodation is not reasonable if it provides a disadvantage to the employee's terms, conditions, or privileges of employment (e.g., results in a reduction in pay or loss of privileges). Id. at fn. 130.

Ultimately, reasonableness is a fact-specific determination to be made on a case-by-case basis. Id. at p. 53. Employers and employees are encouraged to communicate and work together to determine if a reasonable accommodation can be made.

Undue Hardship

An employer can refuse to provide a reasonable accommodation if doing so would impose an undue hardship. To demonstrate an undue hardship under Title VII, an employer must show a “more than de minimis” cost on the operation of the employer's business. Commission Guidelines, 29 C.F.R. '1065.2(e)(1). It is important to note that this is a lower standard for employers to satisfy than the “ undue hardship” defense under the Americans with Disabilities Act. See Manual at fn. 142.

Factors to be considered in determining if the cost of an accommodation is “more than de minimis” are “ the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need the particular accommodation.” Commission Guidelines, 29 C.F.R. ' 1065.2(e)(1). However, administrative costs necessary for the accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes or occasional/infrequent payments of overtime wages, are generally not considered “more than de minimis” costs. See Manual at fn. 150.

The Manual provides many helpful examples of costs or burdens that would likely impose an undue hardship. These include: requiring the employer regularly to incur overtime wage costs or hire additional employees; requiring the employer to engage in an activity that impairs workplace safety or security; requiring other employees to assume a disproportionate share of the workload involuntarily; or depriving other employees of a job preference or other benefit guaranteed by a seniority system or collective bargaining agreement. Id. at pp. 59-62.

An employer should not infer a “potential” or “hypothetical” hardship when faced with a religious accommodation request, but should rather rely on objective information. Id. at pp. 57-8. Merely assuming that other employees with the same religious background will ask for the same accommodation is also not evidence of undue hardship. Id. However, if it is determined that the employee's proposed accommodation would impose an undue hardship, the employer should explore alternative accommodations rather than deny the request all together. See Questions and Answers: Religious Discrimination in the Workplace, available at http://www.eeoc.gov/policy/docs/qanda_religion.html (last visited Dec. 4, 2008) (hereinafter “Q&A”).

Common Methods

The Manual emphasizes that an employer may use a variety of methods to provide reasonable accommodations to its employees. Some of the most common methods include:

• Schedule changes, voluntary substitutes, and shift swaps;
• Changing an employee's job tasks or providing a lateral transfer;
• Making an exception to dress and grooming rules;
• Use of a designated area in the work facility for religious observance;
• Allowing “charity-substitute” accommodations for employees who have a religious objection to joining or financially supporting a union or agency ( i.e., the equivalent of an employee's union dues or agency fees would be paid, either in full or in part, to a charity agreeable to the employee, the union, and the employer rather than to the union or agency); and
• Accommodating prayer, proselytizing, and other forms of religious expression. See Id.

With respect to the accommodation of prayer, proselytizing and other forms of religious expression, employers should consider the potential disruption, if any, that may result from permitting this expression of religious belief. See Manual at p.77. In determining whether permitting an employee to engage in religious expression in the workplace would impose an undue hardship, relevant considerations may include “the effect such expression has on co-workers, customers, or business operations.” See Q&A at question 13. However, where the expression is limited to use of a phrase or greeting, it is more difficult for the employer to demonstrate undue hardship. Id. On the other hand, “the employer is permitted to restrict the religious expression where it would cause customers or co-workers to reasonably perceive the materials to express the employer's own message, or where the item or message in question is harassing or disruptive.” Id.

Employer Best Practices

The Manual's companion document, Best Practices for Eradicating Religious Discrimination in the Workplace (the “Best Practices Booklet”), is an excellent resource for employers in responding to religious accommodation requests. Like the Manual, the Best Practices Booklet is divided into sections on disparate treatment, religious harassment and accommodation, with the accommodation section offering the most information. While these guidelines are not exhaustive, the following should be considered when responding to religious accommodation requests:

Employers should consider developing internal procedures for
processing and responding to religious accommodation requests. In this regard, employers may wish to train managers and supervisors on how to recognize religious accommodation requests and provide information about reasonable alternatives that are available. Employers may also wish to incorporate a discussion of religious expression, and the need for all employees to be sensitive to the beliefs and non-beliefs of others, into training provided to managers and employees.

Employers should not automatically reject a request for religious accommodation just because the accommodation may impose an undue hardship. Rather, employers should be flexible in evaluating whether or not an accommodation is feasible. If faced with an accommodation request that cannot be implemented, employers should consider offering alterative methods of accommodation on a temporary basis, while the parties explore the possibility of a more permanent accommodation. In this situation, an employer should also keep the employee apprised of the employer's effort to implement a permanent accommodation.

Employers are encouraged to be open and creative regarding work schedules, dress, grooming, and other requests that relate to religious expression. When evaluating these types of requests, employers should make reasonable efforts to accommodate the employee's desire to the extent practicable. For example, if an employee wants to wear a certain type of religious garb but has regular interactions with customers, the employer may consider whether it's possible for the employee to wear the garb in the company's uniform colors. Finally, before denying the request based on an “undue hardship,” employers are again reminded to consider alternative accommodations that could be adopted at a lower cost or with less disruption.

John D. Shyer, a member of this newsletter's Board of Editors, is a Labor and Employment Law Partner in the New York office of Latham & Watkins LLP. Amy S. Donovan is an associate in the firm's New York office.