Defining “Religion” and Types of Discrimination
Title VII of the Civil Rights Act of 1964 prohibits employers with 15 or more employees from discriminating against employees on the basis of religion. “Religion” is defined broadly, and includes not only traditional organized religions such as Christianity or Judaism, but also atheism and other religions that are new, uncommon, or may seem unreasonable to others.
Religious discrimination comes in a variety of forms:
- Disparate Treatment: Employers may not treat employees or applicants differently regarding any aspect of employment (including recruitment, hiring, assignments, discipline, promotion, and benefits) based on their religious beliefs or practices. For example, an employer may not reject a highly qualified applicant in favor of a less qualified applicant because of the less qualified applicant’s “preferable” religious practices.
- Harassment: Employers may not subject employees to harassment because of their religious beliefs or practices. Harassment occurs when an employee is: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment, or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive.
- Accommodation: Employers must reasonably accommodate an applicant’s or employee’s sincerely held religious beliefs or practices – or lack thereof – so long as the accommodation will not impose an undue hardship on the employer.
- Retaliation: An employer may not retaliate against an applicant or employee who has engaged in “protected activity.” Examples of protected activity include (but are not limited to) opposing a practice the employee reasonably believes to be discriminatory, filing an EEOC charge, testifying in an EEOC investigation, and requesting a religious accommodation.
Exceptions
Title VII’s religious protections do not apply to “religious organizations.” In order to be considered a religious organization, the purpose and character of the institution must be primarily religious. Under this exception, religious organizations may give employment preference to employees of the same religion. However, religious organizations are still prohibited from discriminating on the basis of any other protected class (e.g., race, color, national origin, sex, age, disability) with one exception – religious organizations are insulated from employment discrimination liability where the employee in question qualifies as a “minister.”
The “ministerial exception,” which was recently recognized by the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (U.S. 2012), is grounded in the First Amendment and precludes application of employment discrimination legislation to claims concerning the employment relationship between a religious institution and its ministers. Religious organizations should nevertheless be cautious when relying on this exception, as the determination of who qualifies as a “minister” is fact-specific and likely to result in a lengthy legal battle.
Accommodating Employees’ Religious Practices or Beliefs
As mentioned above, Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice or observance conflicts with a work requirement, unless providing the accommodation would create an “undue hardship” on the employer. A religious accommodation constitutes an “undue hardship” under federal law if it poses “more than de minimis” cost or burden on the employer. For example, an accommodation may constitute an undue hardship if it impairs workplace safety, diminishes the efficiency of other employees, requires the hiring of additional employees, or infringes on other employees’ job rights or benefits. Conversely, the following costs generally do not constitute undue hardship: the costs associated with rearranging schedules, time spent recording substitutions for payroll purposes, and the temporary payment of overtime wages while a permanent accommodation is found.
In evaluating whether a requested accommodation poses an undue hardship, the EEOC considers: (1) the type of workplace, (2) the nature of the employee’s duties, (3) the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and (4) the number of employees who will in fact need a particular accommodation. [Note: This undue hardship standard under Title VII is substantially lower than the more burdensome undue hardship standard under the Americans with Disabilities Act.]
As a practical matter, employers should engage in an “interactive process” or discussion with an employee once the employee becomes aware of a potential religious accommodation issue. This allows the employer to promptly obtain whatever additional information is needed to determine the availability of an accommodation that would eliminate the employee’s religious conflict without posting an undue hardship on the employer. This also shows good faith on the part of the employer in the event the denial of a reasonable accommodation results in future litigation.