Statement of Peggy Mastroianni, Associate Legal Counsel, EEOC, Office of Legal Counsel

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

Good afternoon Madam Chair, Madam Vice Chair, and Commissioners. I am here to provide some background before Dianna and Jeanne describe the nuts and bolts of the document before you.

Six years ago, the Office of Legal Counsel began work on this Compliance Manual Section on Religious Discrimination. It was intended to consolidate longstanding Commission positions set forth in our regulations, in earlier policy guidances, and in our litigation, into one comprehensive document for use by our staff and stakeholders.

Let me start by explaining why we wrote this Compliance Manual section. Compelling trends in the Commission's workload, as well as significant demographic changes, led us to the conclusion that it was necessary, pursuant to the specific Commission powers enumerated in section 705(g) of Title VII, to provide technical assistance in order to further compliance with the religious discrimination provisions of the Civil Rights Act.

First, the number of religion charges filed with the Commission increased 100% from 1992 to 2007, including a 13% increase last year to 2880 charges. As a result, we have seen a dramatic increase in inquiries from our investigators regarding religious discrimination issues.

Second, the Commission has increased its litigation activity with respect to religious discrimination claims over the last six years.

Third, the Commission has found it necessary to expand its outreach activities regarding the religious discrimination requirements of Title VII in response to a vast increase in the number of inquiries on religion and the workplace from the press and from employers.

• In 2007, Commission staff made at least 227 presentations on religious discrimination issues.
• The need for more outreach on the subject of religious discrimination was most recently demonstrated by the results of a February 2008 Customer Satisfaction Survey which examined the extent to which Commission stakeholders were aware of their rights and responsibilities under Commission-enforced laws.
• In response to a series of scenarios regarding race, pregnancy, harassment, age, disability, and ethnicity, the vast majority of respondents identified the correct legal outcomes.
• However, two-thirds of the respondents did not know the answer to a simple question about whether an employer needs to allow an employee who is on his break to pray in an empty office.

Let me now move on to the demographic changes because, while no one knows for sure, we have good reason to believe that an increase in religious diversity in this country, which is reflected in the workplace, may be contributing to the increase in charges. Surveys conducted by the Society of Human Resource Management together with the Tanenbaum Center for Interreligious Understanding (2001), and by the Pew Forum on Religion and Public Life (2008) have reported notable increases in religious diversity. Driven in part by recent immigration trends, we have seen the number of Muslims double, the number of Buddhists triple, and the number of Hindus quadruple from 1993 to 2003. In addition, new varieties of Christianity have taken root in this country as a result of immigration. All of these demographic changes are reflected in the American workplace.

I would also like to address the issue of public input. Although this is not a regulation that has been published for formal notice and comment, the Office or Legal Counsel did receive input from a wide variety of stakeholders. Specifically, in 2003, and again in 2008, we held a series of productive meetings with religious groups, employer groups, unions, and secular civil liberties groups in which we (1) conveyed our basic thinking on the major disparate treatment, harassment, and religious accommodation issues (without sharing any draft documents), and (2) got input regarding what issues our stakeholders thought ought to be addressed.

Finally, how is this document different from EEOC's 1993 proposed guidelines on harassment that caused so much controversy among religious groups? For those of you who were not at the EEOC then, let me give you some background. The Commission approved a Notice of Proposed Rulemaking in 1993 that focused on the general principle that employers are required to protect employees from abusive epithets based on race, color, sex, religion, national origin, age, and disability. The NPRM was terse, with no specific discussion of religious harassment – the description of harassment was one page, with no examples. Religious groups in particular became concerned that the guidelines could be construed to require employers to stifle religious expression, and controversy ensued.

This Compliance Manual Section is different in every way. It focuses on issues unique to religion in the areas of disparate treatment, harassment, accommodation, and retaliation. At 90 pages, it certainly is not terse, and it contains extensive examples and discussions of case law. Most important, it makes clear that an employee's right to engage in religious expression should be accommodated unless it poses an undue hardship.

In sum, the document before you is timely and relevant – just as the Compliance Manual Section on National Origin was relevant after 9/11, and just as the Enforcement Guidance on Caregivers was of its time when you approved it last year.

Thank you for this opportunity to speak.

This page was last modified on July 22, 2008.