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EEOC Issues New Guidance Regarding Issues of Religion in the Workplace

October 30, 2008
Labor and Employment Blog Post

On July 22, 2008, the EEOC issued Compliance Manual Section 12 on Religious Discrimination. While Section 12 does not appear to advocate for substantive changes in the law of religious discrimination, it provides a helpful summary of the existing law. The manual also includes several notes to EEOC investigators, which are instructive to employers and provides recommended best practices.

The Section addresses the scope of religion within the meaning of Title VII; religion-based disparate treatment, religion-based harassment, the scope of the requirement to reasonably accommodate religious beliefs, and retaliation. The Section also provides guidance on the sometimes complex workplace issues involved in balancing employees rights regarding religious expression with employers need to maintain efficient, productive workplaces.

As confirmed in the Section, religion is very broadly defined under Title VII. Religious beliefs, practices, and observances include not only those that concern the belief in one God (those that are theistic), but also non-theistic moral or ethical beliefs that are sincerely held with the strength of traditional religious views. Religious beliefs can include unique views held by a few or even one individual; however, mere personal preferences are not religious beliefs.

In terms of disparate treatment, the Section explains the actions prohibited by Title VII; namely recruiting, hiring, promoting, disciplining, discharging, or providing different wages or benefits based on an employee's religious beliefs. The Section further provides employer "best practices" to avoid disparate treatment, including:

  • Establishing written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates;
  • Asking the same questions of all applicants for a particular job or category of job and inquiring about matters directly related to the position in question;
  • Carefully and timely recording the accurate business reasons for disciplinary or performance-related actions and sharing these reasons with the affected employees; and
  • Providing training to inexperienced managers and encouraging them to consult with more experienced managers or human resources personnel when addressing difficult issues requiring subjective assessments of employees.

The Section also provides guidance regarding the types of employment situations that may give rise to unlawful religion-based harassment in the workplace. In addition to hostile-environment based harassment, the EEOC states that religion-based harassment occurs when employees are required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (essentially a quid pro quo theory).

In terms of reasonable accommodation, the Section includes a helpful analysis of several commonly requested workplace accommodations. The Section emphasizes the importance of both employers and employees engaging cooperatively in an interactive process to determine whether reasonable accommodation can be made to eliminate conflict between an employee's religious beliefs or practices and his or her work requirements. The Section further identifies several "best practices" to help employers ensure they will meet their duty to provide reasonable accommodation of employee religious beliefs. Examples include allowing flexible use of paid time off and facilitating "voluntary swap" shift arrangements.

For addition information regarding issues of religion in the workplace or other employment discrimination matters, please contact Stephanie Setterington at 616/336-6466 or srsetterington@varnumlaw.com .

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