What Does the EEOC Think About Religious Accommodations? It’s Spooky!
By Fiona W. Ong - Shawe Rosenthal LLP
October 31, 2019
In its latest edition of the Digest of EEO Law, the Equal Employment Opportunity Commission included an article entitled, “Religious Accommodation in the Workplace: An Overview of the Law and Recent Commission Decisions.” Although the article summarizes federal sector decisions, it provides guidance to private employers on the EEOC’s overall position on religious accommodations – and (just in time for Halloween) the conclusions are a little scary!
The EEOC’s article provides a general overview of Title VII’s protections against religious discrimination and the requirement to provide reasonable accommodations of an employee’s sincerely held religious beliefs, observances, and practices when requested. As the article notes, such accommodation must be provided unless it poses an undue hardship, which the U.S. Supreme Court has defined as requiring more than a de minimis cost.
Of greater interest, the article also reviews recent federal sector decisions on religious accommodations, and it is clear that the EEOC takes a more aggressive position with regard to the reasonable accommodation obligation than the federal courts. As we noted in January 2018, the EEOC believes that an employer must provide an accommodation that completely eliminates the conflict between the employee’s religious need and the workplace conflict – a position that has been rejected by the federal courts. Yet, these recent decisions demonstrate that the EEOC continues to impose greater mandates on employers than courts would require under Title VII.
For example, in Ronnie S. v. Dep’t of Veterans Affairs, the employee claimed that the agency failed to accommodate his request to attend Easter Services. The EEOC found that the employer had an obligation to facilitate the securing of a voluntary substitute. In this case, the EEOC stated that “management placed the burden solely on Complainant” when it suggested to the Complainant that he ask colleagues to swap shifts. This is interesting because the EEOC’s own Compliance Manual on Religious Discrimination states that “The employer’s obligation is to make a good faith effort to allow voluntary substitutions and shift swaps.” (Emphasis added). The Compliance Manual specifies that the employer is only obligated to do more than permit a swap “if the employer is on notice that the employee’s religious beliefs preclude him not only from working on his Sabbath but also from inducing others to do so.” So, the EEOC apparently ignored its own Compliance Manual in this instance. And, in the case itself, it imposed on the employer agency the obligation to do more than simply allow the swap, such as “by publicizing policies regarding accommodation and voluntary substitution, promoting an atmosphere in which substitutions are favorably regarded, or providing a central file, bulletin board, or other means for making voluntary substitutes available.” (Private employers take heed! This is what you can expect the EEOC to require of you if you’re faced with a religious scheduling issue!)
Similarly in Melania U. v. U.S. Postal Serv., the employee requested to have Sundays off for religious reasons, which was denied because other employees already had Sundays off based on seniority. The EEOC found that the agency did not ask other employees whether they would voluntarily change their work schedules. (Although in reading the case itself, it seems that the agency also did not discuss with the employee the possibility of her finding her own substitute, which would have been appropriate). Here as above, however, it appears that the EEOC thought the employer should have solicited other employees to swap shifts, rather than simply allowing the employee to find her own swaps.
A request to have the Sabbath off was also the issue in Stanton S. v. U.S. Postal Serv. In that case, the employer found another employee to work on Sundays, but still required the employee to report for training on several Sundays and informed him that he may have to work some Sundays as backup. According to the EEOC, the employer therefore “essentially denied Complainant’s religious accommodation” – apparently by failing to completely eliminate the conflict, despite the federal courts’ interpretation of Title VII as not requiring that, as mentioned above.
So what these cases highlight is that the EEOC will demand more from employers with regard to religious accommodations than courts find necessary under Title VII. Definitely more trick than treat for employers!