On January 15, 2021, the Equal Employment Opportunity Commission (EEOC) updated its Compliance Manual on Religious Discrimination. While this document does not have the force of law, it does provide insight into how the EEOC views religious accommodation and discrimination issues under Title VII. Notably, before this recent revision the Religious Discrimination Compliance Manual had not been updated since July 2008. While none of the revisions demonstrate a major shift in how the EEOC views religious discrimination or accommodation issues, below is a summary of some of the changes found in the updated Manual of interest to employers.
Religious Discrimination and Accommodation Under Title VII
By brief background, Title VII prohibits an employer from discriminating against an employee because of their religion. Additionally, Title VII requires employers to accommodate employees’ sincerely held religious beliefs, practices, and observances, unless doing so imposes an “undue hardship” (i.e. a more than de minimus cost or burden) upon the business.
These two requirements often find themselves in conflict with one another. Indeed, the Compliance Manual recognizes that “some employees may perceive proselytizing or other religious expression as unwelcome based on their own religious beliefs and observances, or lack thereof” while simultaneously noting that in certain circumstances, an employee’s desire to proselytize may itself need to be accommodated. To that effect, the revised Manual provides some additional guidance for employers in navigating this issue.
“Religious Discrimination” Includes Discrimination Against the Secular
First, the revised Compliance Manual now notes in the definition section’s “overview” that “[i]ndividuals who do not practice any religion are also protected from discrimination on the basis of religion or lack thereof.” Courts have long interpreted Title VII to prohibit discrimination and harassment against an employee due to their “lack” of religion, and this was recognized in the prior version of the Manual as well. However new language in the revision more prominently reiterates this point.
Religious Expression in the workplace
An employee may experience an actionable hostile work environment if they are subjected to conduct “sufficiently severe or pervasive” “to alter the conditions of [the victim’s] employment and create an abusive working environment” as a result of their religious beliefs or lack thereof. The revised Manual adds a new example to help clarify where the “severe or pervasive” line is, specifically adding the following scenario:
“Isolated Practices Not Enough to Constitute Hostile Environment
Tran owns a restaurant serving Asian-fusion cuisine. The restaurant is decorated with Vietnamese art depicting scenes from traditional religious stories. Tran keeps a shrine of Buddha in the corner by the cash register and likes to play traditional Vietnamese music and chants. Linda has worked as a waitress in the restaurant for a few months and complains that she feels harassed by the religious symbols and music. As long as Tran does not discriminate on the basis of religion in his hiring or supervision of employees, the religious expression would likely not amount to practices that are severe or pervasive enough to constitute a hostile work environment based on religion.”
Additionally, the revised Manual adds the following point with respect to employees who allege that they are subjected to a religious hostile work environment based upon the social media activity of their coworkers:
“A coworker having a difference of opinion with an employee’s religious views does not establish a hostile work environment when there is no other evidence of harassment. This would include when a coworker disagrees with the religious views that an employee expresses outside of the workplace, for example on social media, when there is no evidence it is linked to the workplace.”
While the revised Compliance Manual does not contain any major changes with respect to the EEOC’s views regarding discrimination on the basis of religion or the duty to accommodate religious beliefs, its issuance provides a good reminder for employers that, under certain circumstances, accommodations may be needed regarding an employee’s religious beliefs, even if those accommodations have some impact on other employees.