THE EEOC CONTINUES TO AMPLIFY ITS FOCUS ON WORKPLACE RELIGIOUS DISCRIMINATION

The EEOC made news last year when it filed a lawsuit against CONSOL, accusing the coal company of violating Title VII’s provisions requiring accommodation of sincerely held religious beliefs. (EEOC v. CONSOL Energy, Inc. and Consolidation Coal Co., No. 1:113-cv-00215-FPS (N.D. W. Va.).)  The complaint alleges that the company’s biometric hand scanner system, installed as part of a new time and attendance control system, violated the religious beliefs of a devout evangelical Christian employee who opposed using the scanning technology based on a Bible passage stating that the antichrist will force people to receive his mark on their hand or forehead.  The complaint alleges that the employee was forced to retire, even though the company had previously made exceptions to the requirement that employees use the biometric scanner system.

The CONSOL complaint illustrates a rising trend in claims against employers alleging discrimination on the basis of religion.  For example, many claims are being made on behalf of devout Muslims challenging various types of dress code policies.  In March 2014, the EEOC issued a new Fact Sheet and Question-and-Answer Guide on religious discrimination and accommodation.  This guide indicates that a number of fairly typical employer responses to accommodation issues may now trigger EEOC scrutiny.  In particular, an employer cannot defend against a failure to accommodate by saying that the accommodation will, or could, cause an undue hardship – the employer can only justify the refusal to accommodate by showing an actual undue hardship caused by the accommodation.  Additionally, a customer preference or customer complaint is not a defense to a failure to accommodate unless the employer can show an actual undue hardship.  Finally, the EEOC has stated that an employer cannot justify a refusal to accommodate based on its belief that the employee’s religious beliefs are not “sincere.”

These new developments confirm the wisdom of engaging in a good faith, thoughtful assessment of an employee’s accommodation request.  In cases where the company truly believes that an accommodation cannot realistically be provided, the employer should gather as much concrete support as possible to demonstrate the existence of an actual undue hardship.

INSIGHTS FOR EMPLOYERS

Title VII broadly defines “religion” to include spiritual beliefs that are uncommon, not part of a formal church or sect, or only subscribed to by a small number of people.

If employers have a legitimate reason to question whether an observance is “sincerely held,” they may ask the requesting applicant or employee for information reasonably calculated to assess his or her request.

In most cases, materially changing an employee’s job in response to customer comments regarding the employee’s religious practice is considered a discriminatory act in violation of Title VII.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company