EEOC Proposed New Religious Discrimination Guidance

Monday, December 14, 2020

Within the hierarchy of employment discrimination legal guidelines, non secular discrimination has historically been considered because the proverbial undesirable stepchild, with pro-employer “undue hardship” exceptions to lodging necessities that don’t require a lot, both when it comes to hardship or of being undue.

Final month, nevertheless, non secular discrimination got here to the forefront, as on November 17, the EEOC issued a “Proposed Up to date Compliance Guide on Spiritual Discrimination,” with a feedback deadline of December 17.

Per the EEOC’s discover, “The revisions to the steerage embrace vital updates to the dialogue of protections for workers from non secular discrimination within the context of cheap lodging and harassment. It additionally expands the dialogue of defenses which may be accessible to non secular employers.”

Whereas pro-employer defenses stay deeply entrenched, some fascinating exceptions are to be discovered within the proposed new steerage.

Greater than ‘De Minimis Price’

To ascertain undue hardship in response to a request for non secular lodging, the employer should show that the lodging would require the employer “to bear greater than a de minimis price.”  In fact, “greater than a minimal price” continues to be not a lot price, in order that courts draw the traces at low thresholds. 

That is illustrated by case precedents cited within the new guide:

Translation:  Paying extra time or premium pay to alternative employees, as a part of a scheduling lodging, is an undue hardship.  Why? As a result of it’s “greater than de minimis”—until rare, or purely a wash with what it will have price with out lodging.

Past case precedent, the steerage goes on to offer its personal official examples (emphasis added): 

The primary is of an worker who needs to put on his hair lengthy on account of his Native American non secular beliefs, as an lodging for restaurant coverage requiring that hair be stored “quick and neat.”  Administration likes its coverage due to the eating ambiance it needs to create.  Between administration wanting a haircut and the worker wanting a hairnet, the worker wins. 

The opposite instance is of a Pentecostal metal mill laborer eager to put on a skirt as an lodging for non secular precepts of modesty, as a substitute of pants, as required by coverage.  Administration claims a historical past of accidents in whichemployees’ skirts had been caught within the metal mill equipment.  Simple name for the employer.

In truth, each instances are comparatively simple calls, one with a no-cost hairnet for the worker (OK, so much less ambiance), and the opposite with hazard to limb, if not life.  Whereas such simple instances don’t offermuch in the best way of steerage, the guide does clarify from case precedent that “[c]osts to be thought of embrace not solely direct financial prices but additionally the burden on the conduct of the employer’s enterprise. For instance, courts have discovered undue hardship the place the lodging diminishes effectivity in different jobs, infringes on different workers’ job rights or advantages, impairs office security, or causes coworkers to hold the accommodated worker’s share of probably hazardous or burdensome work.”

Translation:  Pure inconvenience, if inconvenient sufficient, and, in fact, security issues, are “greater than de minimis prices,” and thus undue hardships on the employer, excusing the employer from making non secular lodging.

Exceptions (Comparable to They Are)

With the ageless “greater than de minimis price” normal nonetheless in place, the proposed new steerage is fascinating in that it seeds varied exceptions to that normal.  Employers take observe—the seeds might develop.  Examples (emphasis added):

Co-worker complaints will not be fairly sufficient, till they’re.  Co-workers’ displeasure and even taking offense from non secular views, alone, is just not undue hardship—until it rises to the purpose of affecting “effectivity, manufacturing, high quality [or] morale.”

Not all safety necessities are inviolate.  A baptized Sikh sporting a “small (four-inch), boring and sheathed kirpan (miniature sword) strapped and hidden beneath her clothes, as an emblem of her non secular dedication to defend reality and ethical values” have to be accommodated in a hospital setting that prohibits all weapons, because the kirpan is “no sharper than butter knives discovered within the hospital cafeteria.”

Scheduling mandates typically have to offer means.  Employers should think about “permitting versatile arrival and departure occasions, floating or non-compulsory holidays, versatile work breaks, use of lunch time in alternate for early departure, staggered work hours, and different means to allow an worker to make up time misplaced as a result of observance of spiritual practices.” 

(In the identical vein, requiring work or work availability as a job requirement might violate Title VII from the start, within the absence of spiritual lodging—capped by undue hardship.)

Activity and site adjustments will not be at all times undue hardship.  “Applicable lodging might embrace relieving the worker of the duty or transferring the worker to a special place or location that eliminates the battle with the worker’s faith. Whether or not or not such lodging pose an undue hardship will depend upon elements comparable to the character or significance of the responsibility at challenge, the provision of others to carry out the perform, the provision of different positions, and the applicability of a collective bargaining settlement or seniority system.”

Most notably of all, voluntary shift swaps have to be affirmatively supported.  “Though it will pose an undue hardship to require workers involuntarily to substitute for each other or swap shifts, the cheap lodging requirement can typically be happy with out undue hardship the place a volunteer with considerably comparable {qualifications} is obtainable and keen to change shifts, both for a single absence or a number of absences, together with absences occurring over an prolonged time frame. The employer’s obligation is to make a superb religion effort to permit voluntary substitutions and shift-swaps to accommodate a non secular battle.”

Spiritual lodging is a case-by-case inquiry, and the brand new proposed steerage is much broader than this publish can cowl.  The EEOC appears to be hardening the goal for workers bringing these claims.  Conferring with L&E counsel on the outset of such lodging requests can assist lawsuit avoidance.