Statement of Jeanne Goldberg, Senior Attorney Advisor, EEOC Office of Legal Counsel

Meeting of July 22, 2008 - Compliance Manual Chapter on Religious Discrimination

The remainder of the document is organized by the possible theories of liability under Title VII: disparate treatment, harassment, reasonable accommodation, and retaliation.

First, with respect to disparate treatment, the document makes clear that the usual rules for disparate treatment on other Title VII bases apply with respect to disparate treatment based on religion as well. The examples illustrate instances of disparate treatment based on religion in recruitment, hiring, promotion, discipline, discharge, compensation, and other terms, conditions, or privileges of employment.

The document also notes that Title VII may apply to prohibit disparate treatment of religious expression, using the example of an employer who allows a Christian employee to have a Bible on his desk but does not allow a Muslim employee to have a Quran.

Moreover, the document explains that "customer preference" is not a defense, spotlighting for example post-9/11 backlash cases that EEOC has brought where employers do not want to keep or place someone wearing Muslim or Sikh religious garb in a customer service position based on a desire to cater to customer bias.

Second, with respect to religious harassment, the document reflects -- as EEOC and the courts have repeatedly stated -- that the legal analysis for religious harassment claims is the same as that for harassment based on race, color, sex, or national origin. However, it explains that unique facts in religious harassment cases may present unique legal considerations.

The document gives examples of harassment that consists of religious coercion, where an employee is pressured to abandon or adopt certain religious beliefs or a degree of observance as a condition of being hired, promoted, or continuing to be employed. It also gives examples of unwelcome severe or pervasive hostile work environment harassment that is based on an employee's religious belief or observance, or lack thereof.

Moreover, the document provides guidance regarding situations where one employee alleges that another employee's religious practices constitute religious harassment, and what an employer must do in such situations. Specifically, the document explains how to comply with both the obligation to accommodate religious expression in the workplace absent undue hardship on the one hand, and on the other hand with the obligation to take prompt remedial action if the employer learns of unwelcome religious harassment.

Third, with respect to reasonable accommodation, the document explains that an employer must grant an employee's request for reasonable accommodation of a sincerely held religious belief, practice, or observance that conflicts with a work requirement by eliminating the conflict, unless doing so would pose an undue hardship.

The document explains that the undue hardship defense to providing religious accommodation under Title VII requires showing that the proposed accommodation in a particular case poses a "more than de minimis" cost or burden on the operation of the employer's business. The document makes clear that that this is a lower standard for an employer to meet than undue hardship under the Americans with Disabilities Act (ADA), which is defined in that statute as "significant difficulty or expense."

The document discusses the contours of the Title VII undue hardship defense, making clear that a lthough infringing on co-workers' ability to perform their duties or subjecting co-workers to a hostile work environment can constitute undue hardship, general disgruntlement, resentment, or jealousy of co-workers will not.

The document also makes clear that an employer never has to provide a religious accommodation that would violate a seniority system or collective bargaining agreement. However, it offers a detailed explanation of the nature and scope of an employer's obligation to permit voluntary substitutes and shift swaps among other possible accommodations for scheduling conflicts due to religious belief or observance.

In addition, the document explains in what circumstances and how employers may seek additional information in support of an accommodation request, and encourages discussion of the request with the employee if clarification is needed, emphasizing mutual cooperation.

Moreover, the document explores in detail the types of accommodations that most commonly arise, including scheduling changes, changes of job tasks, lateral transfers, exceptions to dress and grooming standards, certain use of employer facilities, diverting payment of union dues or agency fees, and accommodations relating to prayer, proselytizing or other forms of religious expression in the workplace, including excusing individuals on religious grounds from participation in certain employer programs.

Finally, the document addresses cases that involve an intersection of national origin, race, and religious discrimination, and also addresses how retaliation claims may arise following participation or opposition relating to religious discrimination.

This page was last modified on July 22, 2008.