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LETS DIVE IN FOR HIGHLIGHTS OF WHAT HAPPENED IN JANUARY 2021

BSHRM, VP Legal / Legislation
Yvonne Maddalena

Each month we will update you on recent developments that could affect a company's relationship with its employees and provide you with locations where you can get additional information on any of these topics.  

EEOC Issues New Guidance on Religious Discrimination

The Equal Employment Opportunity Commission (EEOC) has approved revisions to its
Compliance Manual Section on Religious Discrimination (the “Guidance”). The revised
Guidance, approved on January 15, 2021, draws upon several U.S. Supreme Court
opinions issued since the agency’s last significant update to its guidelines in 2008.
The Guidance does not have the force of law nor does it rise to the level of EEOC
regulations. However, it does provide insight on the EEOC’s enforcement priorities and
serves as a summary of existing law as interpreted by the courts and the EEOC.
Employers are required to make reasonable accommodations for an employee’s
religious beliefs, so long as the accommodation does not pose an undue hardship on
the employer. The Guidance makes clear that the EEOC will continue to define religion
broadly under Title VII, so an individual is protected if their religious beliefs, practices, or
observances are sincerely held and it would not create an undue burden to
accommodate the employee’s sincerely held beliefs or practices. Further, this protection
is in place whether or not the employer views the work requirement in question as
implicating a religious belief. Under the Guidance, an employer can reasonably
accommodate an employee by flexible scheduling (such as permitting prayer breaks),
voluntary swaps of shifts, or lateral transfers to enable religious observance. In addition,
an employer can modify workplace practices, policies, or procedures. For example, if a
pharmacist has a religious objection to dispensing contraceptives, the pharmacist could
be allowed to signal a coworker to assist customers who seek to make those
purchases. However, the pharmacist should not be transferred as it is generally
recommended that employees be accommodated in their current position.
The Guidance notes that courts “have found undue hardship where the accommodation
diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits,
impairs workplace safety, or causes coworkers to carry the accommodated employee’s
share of potentially hazardous or burdensome work.” The U.S. Supreme Court has
defined “undue hardship” for purposes of Title VII as imposing “more than a de
minimis cost” on the operation of the employer’s business. Under the Guidance, factors
to be considered when assessing hardship include the “identifiable cost in relation to the
size and operating costs of the employer and the number of individuals who will in fact
need a particular accommodation.” As an example of such potential undue burden, the
Guidance states that an employee would not be expected to wear a work uniform
supporting LBGTQ rights if it conflicted with the employee’s religious beliefs, however,
that same employee would be expected to attend mandatory workplace trainings that
emphasized respect for others, including those who are members of the LGBTQ

community. While allowing the employee to wear a different shirt would not cause an
undue hardship for purposes of Title VII, the Guidance notes that employers have the
right to conduct workplace trainings that foster diversity and respect for others. An
interactive dialogue is noted in the Guidance as important in deciding whether an
accommodation would be reasonable and employers are encouraged to consider what
other accommodations, if any, would allow the employee to hold true to their religious
beliefs while not causing an undue hardship on the business.
Addressing one of the more challenging issues faced by employers, the Guidance
acknowledges that some religious beliefs might require proselytizing. However, conduct
that is disruptive to the workplace, even if it does not rise to the level of harassment
under Title VII, may still cause an undue hardship on the operation of a business. The
Guidance explains that an employer should balance the employee’s religious practice
(proselytizing, in this case) with other employees’ right not to be harassed for their own
religious beliefs or lack thereof.

For more information:  https://www.eeoc.gov/laws/guidance/section-12-religious-discrimintation