Employment-Related Religious Rights and Responsibilities: EEOC

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How do religion and the workplace fit together? The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for handling employment-related religious discrimination claims, just updated its Compliance Manual on Religious Discrimination to extensively address this question in terms of both employers’ and employees’ legal rights. Among other things, the Manual defines religion itself, addresses important employment exemptions, and explains key concepts like harassment and required “reasonable accommodation.” The Manual also works through employees’ religious rights in the workplace, such as taking religious holidays, wearing religious garb, displaying religious symbols and literature, and sharing religious views with others.

Applying abundant judicial precedent, the EEOC’s comprehensive guidance deals with the often highly fact-specific intersection between employees’ and employers’ rights and obligations with respect to religious matters. This article focuses on relevant EEOC background, key legal parameters, and the inherent tensions involved with workplace-related religious issues.

EEOC and Title VII Background

The EEOC last updated its Manual in 2008. The legal landscape regarding religious discrimination has changed significantly since then. The EEOC invited public comments, due by December 17, 2020, then finalized the Manual by a 3-2 vote on January 15, 2021. The updated Manual notes that the number of employment-related religious discrimination claims has increased significantly in the last twenty-plus years, although the total number of claims remains relatively small compared to other types of discrimination claims (e.g., 3.7% of all claims in 2019). The Manual further establishes that it is only a guidance document intended to provide clarity, not a legally binding document.

The primary law considered here is Title VII of the Civil Rights Act of 1964, which is the federal statute protecting workers from employment discrimination based on their race, color, sex (a term which is now interpreted to include sexual orientation or gender identity),[1] national origin – and religion. Evaluating employment-related religious discrimination claims involves the definition of religion itself, available protections and prohibited actions, warranted “reasonable accommodation” and related steps necessary to address religious issues in the workplace, and potential employer liability when things go wrong. The EEOC provides the initial stage for employees who assert claims of discrimination, sometimes sufficient to resolve such matters and otherwise a necessary prerequisite to court action.

What is “Religion”?

Drawing on applicable case law, the Manual instructs that the word “religion” is to be viewed very broadly:

Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief,” not just practices that are mandated or prohibited by a tenet of the individual’s faith. Religion includes not only traditional, organized religions . . . but also religious beliefs that are new, uncommon, . . .or that seem illogical or unreasonable to another.

Additionally, a belief is “religious” if it is sincerely held in a “person’s own scheme of things.” An adjudicating body, whether the EEOC or a court, may never determine the reasonableness of an individual’s religious beliefs—such determinations always fall outside the scope of their role. Notably, at least for the EEOC, religious beliefs include both theistic and nontheistic beliefs, such as “moral or ethical beliefs as to what is right and wrong” if sincerely held “with the strength of traditional religious views.” Religion should concern “ultimate ideas” about “life, purpose, and death,” as a belief system. Notably, “[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.”

How Much Legal Protection for Religious Practices?

Within this definitional framework, Title VII extends protection to religious observances, which the Manual lists as ‘includ[ing], for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, and refraining from certain activities. Whether a practice is “religious” or not depends on the employee’s motivation, not the practice itself. For example, observing certain dietary restrictions may or may not be a religious practice. As the Manual instructs, the “EEOC and courts must exercise a ‘light touch’ in making this determination.”

Available Exemptions: “Religious Organizations” and “Ministerial Exemption”

The Manual reiterates that under Sections 702(a) and 703(e)(2) of Title VII, “a religious corporation, association, educational institution or society,” including a religious “school, college university, or educational institution” may hire persons “of a particular religion.” This is known as the “co-religionist” exemption. In other words, it is not religious discrimination for a Christian church or college to hire only Christians.

But what about other organizations? They must be sufficiently “religious” for this exemption to apply, meaning that their “purpose and character are primarily religious.” As the Manual instructs, to determine whether this statutory exemption applies, courts have looked at “all the facts,” considering and weighing “the religious and secular characteristics” of the entities including the following characteristics:

(1) whether the entity operates for a profit; (2) whether it produces a secular product; (3) whether the entity’s articles of incorporation or other pertinent documents state a religious purpose; (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue; (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; (6) whether the entity holds itself out to the public as secular or sectarian; (7) whether the entity regularly includes prayer or other forms of worship in its activities; (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and (9) whether its membership is made up of coreligionists.

Based on these considerations, “courts have found that Title VII’s religious organization exemption applies not only to churches and other houses of worship, but also to religious schools, hospitals, and charities.”

The ministerial exemption, however, is more individualized. Under the Supreme Court’s 2012 Hosanna-Tabor ruling, churches and other religious organizations may not be subject to discrimination claims brought by “ministers” and other clergy members. This bar to organizational liability arising from a First Amendment constitutional protection for religious organizations, “free from interference from civil authorities,” to select those who will “personify its beliefs,” “shape its own faith and mission,” or “minister to the faithful.” In other words, courts are to respect the autonomy of religious organizations to select, discipline, and terminate their own religious workers.

Since Hosanna-Tabor was decided, the scope of the ministerial exemption has been clarified to extend beyond houses of worship and clergy members, such as for parochial schoolteachers, church musicians, and other employees who perform religious or sacerdotal functions. As the Supreme Court ruled in the recent 2020 Our Lady of Guadalupe decision, the ministerial exception applies to employees who perform “vital religious duties” at the core of the mission of the religious institution. No rigid formula should be used, but instead all the facts and circumstances should be considered. Per Our Lady, “[w]hat matters, at bottom, is what an employee does.”[2]

Covered Employment Decisions

For covered employers and employees, then, what protections does Title VII provide regarding religious matters? Its scope is wide, applying to recruitment, hiring, promotion, discipline, and wages and benefits. Title VII also protects religious expression, such as an employee’s right to display a Bible or Koran on her desk. Further, an employer is not allowed to make employment decisions based on customer preferences. For example, an employer may not terminate or take other adverse actions against an employee who wears a turban for religious reasons, based on a customer’s objection to such behavior.

Notably, the Manual clarifies that “bona fide occupational qualifications” (BFOQ) may apply. For example, a hospital that provides chaplain services is allowed to require that its chaplains are religious. Similarly, an organization that provides Jewish religious instruction may require that its employees hired for such purpose are actually Jewish believers.

The Tension of Employment-Related Religious Harassment

As with sexual harassment issues, Title VII’s religious discrimination protection extends to both “quid pro quo” and “hostile work environment” situations. An example of the first category is religious conformance, such as requiring protected employees to hold certain religious beliefs in order to be promoted or to keep their jobs.

The hostile work environment considerations can be quite broad and quickly get tricky in application. If an employee mentions his religion belief, is such expression “hostile”? No. The objected-to activities must be “severe and pervasive,” sufficient to create an objectively “abusive” environment. Potentially insensitive remarks or other isolated comments are not “severe,” particularly if they are not directed at an employee who may find them offensive. Notably, an employer may be subject to liability for a hostile work environment created by supervisors, co-workers, and even contractors who are regularly present in the workplace.

But as the Manual points out, employers may be faced with the complex task of balancing the above considerations for some employees with other employees’ protected rights of religious expression:

While some employees believe that religion is intensely personal and private, others are open about sharing or outwardly expressing their religion. In addition, there are employees who may believe that they have a religious obligation to share their views and to try to persuade coworkers of the truth of their religious beliefs, i.e., to proselytize. Certain private employers, too, whether or not they are religious organizations, may wish to express their religious views and share their religion with their employees. [H]owever, some employees may perceive proselytizing or other religious expression as unwelcome based on their own religious beliefs and observances, or lack thereof. In an increasingly pluralistic society, the mix of divergent beliefs and practices can give rise to conflicts requiring employers to balance the rights of employers and employees who wish to express their religious beliefs with the rights of other employees to be free from religious harassment under the foregoing Title VII harassment standards.

With a nod toward the following section on reasonable accommodation, the Manual next instructs that “while Title VII requires employers to accommodate an employee’s sincerely held religious belief in engaging in religious expression (e.g. proselytizing) in the workplace, an employer does not have to allow such expression if it imposes an undue hardship on the operation of the business.”

The Manual further clarifies that “discussion of religion in the workplace is not illegal.” Further, “Title VII violations may result if an employer tries to avoid potential coworker objections to employee religious expression by preemptively banning all religious communications in the workplace or discriminating against unpopular religious views, since Title VII requires that employers not discriminate based on religion and that they reasonably accommodate employees’ sincerely held religious observances, practices, and beliefs as long as accommodation poses no undue hardship.”

So, which is it? May employees discuss religion? What is an undue hardship on the employer? And how can employers best comply with their legal requirements? The Manual provides a list of recommended best practices, such as to include religious harassment in their anti-discrimination policy, to take proactive measures to address issues as they may arise, to not allow any religiously oriented coercion, and to 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.”

Reasonable Accommodations and Undue Burdens

This very significant area introduces a related tension – between an employee’s need to practice and express his or her religious beliefs and the potentially resulting burden on the employer. In a nutshell, “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.”

The Manual defines the term “religious accommodation” as “an adjustment to the work environment that will allow the employee to comply with his or her religious beliefs.” Some examples wearing certain garb or religious symbols, taking off work for religious observances, not working on a certain day of the week, and not handling certain job duties based on religious objections. In other words, an employee may need an adjustment to a general workplace rule because it infringes on the employee’s ability to practice his or her religion. As the Manual instructs, the accommodation requirement is “plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others.”

What’s an undue burden? For purposes of religious accommodations, an employer must show that proposed accommodation in a particular case poses “more than a de minimis” cost or burden – i.e., not much. As the Manual points out, this is a lower standard for an employer to meet than undue hardship under the ADA, which is defined in that statute as “an action requiring significant difficulty or expense.” The Manual provides extensive examples regarding reasonable accommodations, undue hardships, and related considerations for religious harassments, to aid with their real-life application.

The EEOC Compliance Manual is available online here. Broadly speaking, the Manual’s updated version is encouraging in its affirmation of vitally important religious liberty interests, within the employment context and beyond. But these balancing challenges will surely continue as courts, the EEOC, employers, and employees continue to grapple with inherent tensions among personal preferences, deeply held religious convictions, work responsibilities, and First Amendment religious protections.


[1] For Title VII’s recent expansion of the word “sex” to also mean sexual orientation and gender identity status, see our blog here.

[2] For more guidance on Our Lady and the ministerial exemption, see our blogs here and here.