11/ 21/ 2008
by Alison Schmauch, NFIB Small Business Legal Center
In response to a spike in the number of religious discrimination charges filed in recent years, the U.S. Equal Employment Opportunity Commission—the agency charged with enforcing federal laws prohibiting employment discrimination—has issued a new compliance manual addressing religious discrimination in the workplace.
"Title VII of the Civil Rights Act of 1964 seeks to ensure that applicants and employees enjoy the freedom to compete, advance and succeed in the workplace, irrespective of their religious beliefs," EEOC Chair Naomi C. Earp said. "This Compliance Manual Section serves as a valuable resource for employers, employees, practitioners and EEOC staff seeking information on Title VII's prohibition against religious discrimination."
In recent years, religion in the workplace has become an increasingly important issue for many business owners, as evidenced by the fact that the number of religious discrimination charges filed with the EEOC doubled between 1997 and 2003.
The following questions and answers were adapted from the EEOC's new manual, available at http://www.eeoc.gov/policy/docs/religion.html, which contains more detailed guidance, legal citations, case examples and best practices.
How is "religion" defined under Title VII?
Title VII defines "religion" to include all aspects of religious observance and practice as well as belief. Religion includes not only traditional, organized religions, but also religions that are new and with a small number of followers.
So if I say that I'm a member of the Church of the Flying Spaghetti Monster and I need to take off every Friday to respect the Spaghetti Monster's wishes, my employer has to accommodate me?
A religious belief must be "sincerely held" to qualify for Title VII protection. Although this "sincerely held" requirement is rarely litigated, it can be a defense in circumstances where, as here, the employee has strong non-religious reasons to seek a particular benefit. A reviewing court may also look to whether the employee has acted in a manner inconsistent with the professed religious belief on other occasions.
Doesn't this mean that if a Catholic tried to get a job as a rabbi, and was denied the job for not being Jewish, she could sue for religious discrimination—and win?
First, bona fide religious organizations (like synagogues) are exempt from Title VII's requirements. Sometimes, for-profit businesses that use religious language in their mission statements—including one construction business that described itself as a "Christian, faith operated" business—have tried unsuccessfully to claim this exemption in court. Unless the business's day-to-day activities are primarily religious, courts will not recognize the exemption.
Second, an employer may discriminate on the basis of religion when religion is a bona fide occupational qualification (BFOQ). The rabbinical position listed above is an obvious example of a job for which religion is a bona fide occupational qualification. But secular businesses have also successfully used the BFOQ defense. For example, an airline company could legally hire only Muslim pilots to fly to Mecca because, under Saudi law, any non-Muslim pilots flying to Mecca could be arrested and subsequently beheaded.
Beware that you cannot claim a BFOQ due to customers' discriminatory preferences. To use an example from the EEOC: a coffee shop hired a Sikh gentleman who wore a turban to work for religious reasons. Following the Sept. 11 attacks, several customers complained because they mistakenly thought that his turban indicated that he was a Muslim. If the employer were to fire him because of the customer complaints, this would be illegal discrimination based on religion.
Can I recruit employees by posting job advertisements at my church? By advertising by word of mouth there?
Yes, but if you advertise only among members of a particular religious group, courts may infer that you require employees to practice that religion. To protect yourself from charges of religious discrimination, it is wisest to recruit also in non-religious forums.
How can I tell if an accommodation offered to an employee is reasonable? Also, what level of hardship counts as an undue hardship?
What qualifies as a "reasonable accommodation" or "undue hardship" depends greatly on the facts of the individual situation. For some employers, it might be quite easy to arrange for Jewish employees to trade shifts with other employees so they can attend synagogue on Saturdays. For another employer, the same schedule shifts might be much more difficult. Courts, therefore, look at a number of facts in making these determinations, including the costs of accommodation, the level of disruption to regular operation of the business, and the number of employees who would need a particular accommodation. Note that courts have taken the size of a business into account when determining whether a cost is reasonable.
Other resources
The EEOC has also issued a question and answer fact sheet that responds to frequent questions about religious accommodation available online at http://www.eeoc.gov/policy/docs/qanda_religion.html. NFIB members can also consult the NFIB Employment Law Hotline at 866-678-NFIB (866-678-6342), a free member benefit.
