Statement of Dianna Johnston, Assistant Legal Counsel, EEOC, Office of Legal Counsel

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

The proposed compliance manual section reflects prevailing case law as well as longstanding Commission positions, set forth in the Commission’s 1980 “Guidelines on Discrimination Because of Religion,” published at 29 C.F.R. Part 1605, older policy documents, and Commission litigation. The section is a comprehensive and updated examination of the issues related to Title VII’s prohibition against religious discrimination. It surveys and explains relevant case law, and provides instructions for our investigators and best practices for employers and employees.

The proposed section addresses the whole range of issues related to religious discrimination claims, including disparate treatment, harassment, reasonable accommodation, and retaliation. It helps stakeholders understand how the law balances the need of employees to practice their religion with the need of employers to maintain efficient business operations. Particular attention is given to fact patterns involving religious expression by employers and employees in both public and private employment settings. The document explains that employers must accommodate employees’ religious expression to the extent that the expression does not otherwise pose an undue hardship on the operation of the business.

The chapter also addresses the relevance of First Amendment law to the analysis of religious expression issues under Title VII. Finally, every proposition reviewed in the chapter discusses and cites to relevant and significant case law to help readers identify the authoritative source material that forms the basis for the legal and factual analyses presented.

I’ll briefly discuss some definitional and jurisdictional issues that are discussed in this Manual section. Jeanne Goldberg will then discuss the different theories of liability.

Definition of Religion

Any discussion of religious discrimination raises the question of what is included in the term “religion,” for purposes of Title VII. The proposed section explains that Title VII defines protected religion very broadly. Relying on the 1980 Guidelines, as well as case law, the section explains that Title VII protects “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” That definition applies whether the beliefs are theistic in nature (i.e. those that include a belief in God) or non-theistic. Thus, the definition encompasses not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or even that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that belief or practice, or even if no other people adhere to it. As long as it is a sincerely held religious belief or practice, it is protected. The document also makes clear that Title VII’s protections extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

The Manual section explains, as set forth in the 1980 guidelines, that Title VII protects all aspects of religious observance and practice as well as belief. Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities.

However, the document also explains that, although the definition of religion is broad and courts generally resolve doubts about particular beliefs in favor of finding that they are religious, beliefs are not protected merely because they are strongly held. Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death” and right and wrong; it is not one dimensional. Social, political, or economic philosophies, such as membership in the KKK, or mere personal preferences are not “religious” beliefs protected by Title VII.

Definition of Sincerely Held

Title VII requires employers to accommodate employees’ sincerely held religious beliefs and practices. Therefore, the document discusses the meaning of “sincerely held.” It explains that although there will usually be no reason to question the requesting employee’s sincerity, there may be circumstances in which the employee’s conduct raises a bona fide question in the employer’s mind about whether the employee’s asserted religious belief is “sincerely held.” For example, if an employee who has never before worn a beard suddenly expresses a religious need to wear one, the employer may want further information. The document discusses the inquiries that employers can appropriately make. It also explains that the fact that an employee’s religious beliefs or practices vary over time does not necessarily indicate that the employee is insincere. An employee may have had a religious conversion or some other experience that leads him to adhere more stringently to a particular observance. In short, the document makes clear that whether a belief is “sincerely held’ is a fact-specific determination. The document provides both employers and Commission investigators with guidance about how to make that assessment when the issue is raised.

Jurisdictional Exceptions

The document also addresses two exceptions to coverage, one statutory, one judge made.

The first is the Title VII exception that allows employers that are “religious organizations” to prefer to employ members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” The document reviews the factors to be considered in determining whether a particular employer is a religious organization within the meaning of the statute.

The document also makes clear that the exception only allows religious organizations to prefer to employ individuals who share their religion. It does not allow religious organizations otherwise to discriminate in employment on the bases of race, color, national origin, sex, age, or disability.

The second exception addressed is the so-called “ministerial exception.” Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws. This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority. The document explains that the exception applies only to employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction. The document reviews the range of case law in this area, and notes that some courts have made an exception for harassment claims where they concluded that analysis of the case would not implicate these constitutional constraints.

Now Jeanne will review the portion of the document addressing the different theories of liability.

This page was last modified on July 22, 2008.