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Updated Compliance Manual on Religious Discrimination

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Updated Compliance Manual on Religious Discrimination DRAFT FOR PUBLIC INPUT Number DIRECTIVES TRANSMITTAL Undated EEOC Proposed Update SUBJECT: PROPOSED Updated Compliance Manual on Religious Discrimination PURPOSE: This transmittal issues for public input the Commission’s proposed updates to its Compliance Manual on Religious Discrimination under EEOC-enforced laws. When it is issued in final, this PROPOSED sub-regulatory document will supersede the Commission’s Compliance Manual on Religious Discrimination issued on July 22, 2008. The contents of this proposed document, and any subsequently issued final document, do not have the force and effect of law and are not meant to bind the public in any way. Any final document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. EFFECTIVE N/A - Proposal for public input DATE: EXPIRATION This transmittal will remain available for public input for a period of 30 days DATE: after its publication. ORIGINATOR: Office of Legal Counsel UNSIGNED - DRAFT FOR PUBLIC INPUT SECTION 12: RELIGIOUS DISCRIMINATION OVERVIEW ...................................................................................................................................2 12-I COVERAGE ......................................................................................................................5 NOTE TO EEOC INVESTIGATORS …………………………………………………………7 A. Definitions .............................................................................................................7 1. Religion .......................................................................................................7 2. Sincerely Held...........................................................................................14 3. Employer Inquiries into Religious Nature or Sincerity of Belief ..........................................................................................................17 NOTE TO EEOC INVESTIGATORS ...................................................17 B. Covered Entities ...................................................................................................18 C. Exceptions .............................................................................................................19 1. Religious Organizations...........................................................................19 2. Ministerial Exception...............................................................................25 3. Additional Interaction of Title VII with the First Amendment and the Religious Freedom Restoration Act (RFRA)……………………. 31 12-II EMPLOYMENT DECISIONS .......................................................................................34 A. General ..................................................................................................................34 1. Recruitment, Hiring, and Promotion .....................................................35 2. Discipline and Discharge .........................................................................38 3. Compensation and Other Terms, Conditions, or Privileges of Employment........................................................................39 B. Customer Preference ...........................................................................................41 C. Security Requirements ........................................................................................42 D. Bona Fide Occupational Qualficiation ......................... ……….……..………..………….42 Employer Best Practices ..................................................................................................42 12 - III HARASSMENT .............................................................................................................43 A. Prohibited Conduct ..............................................................................................43 1. Religious Coercion .........................................................................................44 2. Hostile Work Environment ............................................................................46 a. Based on Religion ................................................................................46 b. Unwelcome ............................................................................................48 c. Severe or Pervasive ..............................................................................49 B. Employer Liability ...............................................................................................55 1. Harassment by Supervisors or Managers .............................................56 2. Harassment by Coworkers ......................................................................58 3. Harassment by Non-Employees ..............................................................59 C. Special Considerations for Employers When Balancing Anti- Harassment and Accommodation Obligations With Respect to Religious Expression ............................................................................................59 Employer Best Practices ..................................................................................................60 Employee Best Practices ..................................................................................................62 12 - IV REASONABLE ACCOMMODATION ........................................................................62 A. Religious Accommodation ...................................................................................63 1. Notice of the Conflict Between Religion and Work ..............................65 2. Discussion of Request ..............................................................................67 3. What is a “Reasonable” Accommodation? ............................................70 B. Undue Hardship ...................................................................................................76 1. Case-by-Case Determination .........................................................................76 2. More than “De Minimis” Cost .......................................................................77 3. Seniority Systems and Collectively Bargained Rights .................................79 4. Coworker Complaints ....................................................................................81 5. Security Considerations..................................................................................82 C. Common Methods of Accommodation in the Workplace ................................83 1. Scheduling Changes ........................................................................................83 2. Voluntary Substitutes and Shift Swaps ........................................................85 3. Change of Job Tasks and Lateral Transfer ..................................................86 4. Modifying Workplace Practices, Policies and Procedures ..........................89 a. Dress and Grooming Standards ........................................................89 b. Use of Employer Facilities ..................................................................92 c. Tests and Other Selection Procedures...............................................93 d. Providing Social Security Numbers or Complying with Employer Identification Procedures ..................................93 5. Excusing Union Dues or Agency Fees ..........................................................94 6. Permitting Prayer, Proselytizing, and Other Forms of Religious Expression ................................................................................95 a. Effect on Workplace Rights of Coworkers .......................................95 b. Effect on Customers ............................................................................97 7. Employer-Sponsored Programs ....................................................................99 NOTE TO EEOC INVESTIGATORS ........................................................................103 Employer Best Practices ...............................................................................................105 Employee Best PracticesError! Bookmark not defined...............................................................................................108 12 - V RELATED FORMS OF DISCRIMINATION ...........................................................108 A. National Origin and Race ..................................................................................108 B. Retaliation ...........................................................................................................109 Employer Best Practices ................................................................................................110 Addendum on Executive Order Compliance…………...…………………………... 111 SECTION 12: RELIGIOUS DISCRIMINATION OVERVIEW1 This Section of the Compliance Manual focuses on religious discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII protects workers from employment discrimination based on their race, color, religion, sex,2 national origin, or protected activity. Under Title VII, an employer is prohibited from discriminating because of religion in hiring, promotion, discharge, compensation, or other terms, conditions or privileges of employment, and also cannot “limit, segregate, or classify” applicants or employees based on religion “in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee.”3 The statute defines “religion” as including “all aspects of
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