by Jim Layton
We previously noted that the Equal Employment Opportunity Commission (EEOC) proposed a substantial revision of Section 12: Religious Discrimination in the EEOC Compliance Manual (“Religious Discrimination Manual”). On January 15, 2021, the EEOC adopted a slightly revised version of the proposed Manual—again, in a 3-2 vote. The final version is available here. The “major comments” made on the proposed revision are summarized in an addendum included with that final version.
The new Religious Discrimination Manual replaces a version that had been in place since 2008. Relying largely on court decisions in the last decade, it expands various parts of Section 12.
Section 12 still reminds all employers that they cannot:
- Indicate a religious preference when recruiting. Employers also cannot choose recruiting methods that have that “purpose or effect,” as word-of-mouth recruiting might do.
- Exclude applicants because they may need reasonable accommodations for their religious beliefs, such as a somewhat modified dress code. The same rule applies to promotions.
- Discriminate based on religious expression or practice when imposing discipline or adjusting wages or benefits.
- Make the discriminatory preferences of customers or co-workers a basis for adverse action as to the religious employee.
The revised Manual adds significantly more detail regarding accommodations for employees’ religious practices. “The most common methods [of accommodation] are: (1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers or changes in job assignment; and (4) modifying workplace practices, policies, or procedures.”
- Flexible scheduling includes “flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunch time in exchange for early departure, staggered work hours, and other means to enable an employee to make up time lost due to the observance of religious practices.” Examples are given of an employee who practices Islam who asks for time to pray, and a bus driver whose religion requires refraining from work on certain days. The Manual warns that the EEOC will consider it “insufficient” to eliminate only part of a conflict.
- The employer may not be required to arrange shift substitutes and swaps, but needs to accommodate those arranged by employees—though not if doing so imposes “an undue hardship.”
- Examples of changes of job assignments include excusing a server from joining others in singing “Happy Birthday” to customers, and permitting a pharmacist unwilling to fill a contraceptive prescription to pass to another pharmacist on duty the task of filling the prescription—which the Manual distinguishes from a pharmacist who refuses to even interact with the customer presenting the prescription.
- Among the examples of modifying workplace practices set out in the Manual are accommodating facial hair and religious garb, allowing use of an unused area for prayer, and scheduling testing at times that do not conflict with religious observation.
Employers are only obligated to make “reasonable” accommodations for religious practice. Though it gives guidance, including examples, the Manual correctly observes, “Ultimately, reasonableness is a fact-specific determination.” And the Manual adds cautionary notes—including this one with regard to partial accommodations:
An adjustment offered by an employer is not a “reasonable” accommodation if it merely lessens rather than eliminates the conflict between religion and work, provided that eliminating the conflict would not impose an undue hardship. If all accommodations eliminating such a conflict would impose an undue hardship on an employer, the employer must reasonably accommodate the employee’s religious practice to the extent that it can without suffering an undue hardship, even though such an accommodation would be “partial” in nature.
And this note regarding how accommodations for religious practice compare to accommodations given for other reasons:
However, an employer’s proposed accommodation will not be “reasonable” if a more favorable accommodation is provided to other employees for non-religious purposes, or, for example, if it requires the employee to accept a reduction in pay rate or some other loss of a benefit or privilege of employment and there is an alternative accommodation that does not do so.
Again, as with accommodations in the disability discrimination realm, “an adjustment also must not discriminate against the employee or unnecessarily disadvantage the employee’s terms, conditions, or privileges of employment.”
The revised Manual includes two lists of “Employer Best Practices”—points that employers can use to evaluate their current policies and procedures.
The first “best practices” list addresses hiring and other employment decisions:
- Employers can reduce the risk of discriminatory employment decisions by establishing written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates.
- In conducting job interviews, employers can ensure nondiscriminatory treatment by asking the same questions of all applicants for a particular job or category of job and inquiring about matters directly related to the position in question.
- Employers can reduce the risk of religious discrimination claims by carefully and timely recording the accurate business reasons for disciplinary or performance‑related actions and sharing these reasons with the affected employees.
- When management decisions require the exercise of subjective judgment, employers can reduce the risk of discriminatory decisions by providing training to inexperienced managers and encouraging them to consult with more experienced managers or human resources personnel when addressing difficult issues.
- If an employer is confronted with customer biases, e.g., an adverse reaction to being served by an employee due to religious garb, the employer should consider engaging with and educating the customers regarding any misperceptions they may have and/or the equal employment opportunity laws.
The second “best practices” list addresses steps that can help employers avoid or minimize harassment based on religion:
- Employers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
- Employers should encourage managers to intervene proactively and discuss whether particular religious expression is welcome if the manager believes the expression is likely to be construed as unwelcome to a reasonable person.
- Employers should allow religious expression among employees at least to the same extent that they allow other types of personal expression that are not harassing or disruptive to the operation of the business.
- Once an employer is on notice that religious expression by an employee is unwelcome to another employee, the employer should investigate and, if appropriate, take steps to ensure that the expression in question does not become sufficiently severe or pervasive to create a hostile work environment.
- If harassment is perpetrated by a non-employee assigned by a contractor, vendor, or client, the supervisor or other appropriate individual in the impacted employee’s chain of command should initiate a meeting with the contractor, vendor, or client regarding the harassment and require that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different individual be assigned.
- To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of objectively abusive or insulting conduct, even absent a complaint.
- While supervisors are permitted to engage in certain religious expression, they should avoid expression that might – due to their supervisory authority – reasonably be perceived by subordinates as coercive, even when not so intended.
Tueth Keeney attorneys are ready to help as you consider policies and accommodations, using both the revised Manual and pertinent court precedents.
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Labor and Employment – Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. has successfully represented a number of businesses, large and small, throughout the Midwest in labor and employment matters. Our broad range of experience includes employment discrimination litigation, wage-hour investigations, affirmative action revision plans development, INS audits, and a variety of traditional labor matters.
James Layton leads the firm’s Appellate practice group and is a member of the firm’s Commercial Litigation, Labor, and Education groups. He assists clients with analysis and presentation of complex legal issues in Missouri and federal courts, both trial and appellate. In addition to handling cases himself and with other attorneys at Tueth Keeney, Jim consults with clients on appellate strategy and assists other counsel in high-stakes, complex appeals.
Jim has briefed and argued cases before the U.S. Supreme Court and before all Missouri appellate courts—including nearly 100 cases before the Missouri Supreme Court. He has represented clients in U.S. district courts and in Missouri circuit courts from Jackson County to the City of St. Louis. He has extensive experience with government-related litigation and state taxation disputes. Jim is a fellow of the American Academy of Appellate Lawyers, a past president of the Bar Association of the U.S. Court of Appeals for the Eighth Circuit, and a past chair of the American Bar Association’s Council of Appellate Lawyers. He is a frequent speaker in the areas of appellate practice and constitutional law, both state and federal.