The Great Commission requires believers to spread the Gospel to the four corners of the Earth. Increasingly, people are realizing that this means that we are to be witnesses in our places of work. We at The American Center for Law and Justice are being inundated with calls from both employees and employers asking what the rules are for sharing one's faith at work.
There will always be opposition to the spreading of the Gospel. Some in our society want religious people to keep their convictions to themselves and leave their religion at home. The law, however, does not require that religious employees and employers check their religion at the office door or the factory gate when they come to work.
Federal and State laws protect the religious freedoms of employees and employers. Employers can run their business in conformance with godly principles and employees cannot be forced to act in a manner that conflicts with their religious beliefs. For instance, Christian employers may hold and participate in voluntary chapel services and prayer meetings for employees, and employees can share their faith with co-workers during breaks or free time so long as it is not disruptive.
In short, there is no law requiring the workplace to be a religion-free zone. This booklet is designed to provide both employees and employers with answers to the question: What does the law have to say about religion at work? Do I have to work on Sunday if I think it is a sin? Can my company employ a full-time chaplain for employees? Do I have to pay union dues if the union supports homosexual rights? Can the stated purpose of my company be to glorify God?
The answers to these questions and many others are contained in the pages that follow. These answers are based on general legal principles that may or may not apply to any given situation. Because each actual case is unique, the specific facts of each case have a direct impact on its outcome. So the answers here will give you general guidance, but you need to seek professional legal counsel to address the specifics of your situation.
For the business world to act ethically and responsibly, it must have access to sound religious morality through its people in ownership as well as on the work floor. More people are being made aware of this truth and have decided that, despite pressure from society, they can no longer keep their faith a secret while at work. After all, if we have sincerely committed our lives to God, how can we leave Him out of the place where we earn our living and spend the better part of each day? It is hoped that this booklet will provide business owners and working people with a helpful overview of the law governing religion in the workplace.
Your brother advocating Jesus,
Jay Alan Sekulow
Chapter One Employee Religious Rights
Q: What is Title VII and how does it protect employees?
A: The religious freedom of most employees is protected by a federal law called "Title VII".1 In order to be protected by Title VII, an employee must show that:
(1) He holds a sincere religious belief that conflicts with an employment requirement
(2) He has informed the employer about the conflict; and
(3) He was discharged, disciplined or subjected to discriminatory treatment for failing to comply with the conflicting employment requirement.2
1. Sincerely held religious belief.
The sincerity of religious belief is rarely at issue in Title VII cases. Although failure to act on a religious belief consistently may be considered evidence that the belief is not sincerely held,3 the fact that the belief was only recently acquired does not render it an insincere one.4 An employee is not held "to a standard of conduct which would have discounted his beliefs based on the slightest perceived flaw in the consistency of his religious practice."5
Religion under Title VII is broadly defined as including "all aspects of religious observance and practice, as well as belief."6 The EEOC defines religious practices as including "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee."7 In other words, the EEOC's test does not require that the employee's religious beliefs coincide with the tenets of his church: "Title VII protects more than the observance of Sabbath or practices specifically mandated by an employee's religion."8 Religion under Title VII has been held to include the Black Muslim faith, the "old Catholic Religion," a "faith in humanity being," and atheism.9 However, "religion" has not been so broadly defined as to include membership in the Ku Klux Klan, membership in the United Klans of America, or belief in the spiritual power of a certain cat food.10
2. Employee informed employer of religious belief.
Next the employee must show that the employer was aware of the belief. An employer has sufficient notice of an employee's religious belief if he has enough information about the employee's "religious needs to permit the employer to understand the existence of a conflict between employee's religious practices and the employer's job requirements."11 The best way to inform the employer is in writing. A simple letter to the employer stating: "I have a sincerely held religious belief to (or not to) ________. I am requesting that you, my employer, accommodate this sincerely held religious belief by allowing me to (or not requiring me to) ____________." The employee should sign and date the letter, and keep a copy.
Notification in writing is not absolutely necessary, as long as the employer is aware of the beliefs.12 A written notification however, gives the employer a fair chance to attempt to accommodate your religious convictions by avoiding confusion or disputes over whether they actually had notice.13
This requirement must not be ignored. An employee's claim will be rejected if the employer does not understand the religious beliefs involved.14
3. Discriminatory treatment of employee.
If an employee can show they have a sincerely held religious belief and that the employer knew about it, Title VII prohibits the employer from discriminating against the employee because of the belief. "Discrimination" includes demotion, layoff, transfer, failure to promote, discharge, harassment, or intimidation, or the threat of these adverse employment actions.15
The employer is also required to reasonably accommodate the employee's religious beliefs unless such accommodation would result in undue hardship to the employer.16 "Accommodation" means that employer neutrality is not enough.17 In general, an employer is required to accommodate an employee's adherence to the principles of his religion unless such accommodation will actually interfere with the operations of the employer.
Chapter Two - Employees Of Private, Non-Government Organizations
Table of Contents / Endnotes
Most employees work for private employers, not for the government. These employees are primarily protected only by Title VII. They may also be protected by laws in their State similar to Title VII. State laws protecting the religious freedom of employees may provide more protection than Title VII, but generally they are very similar to the federal law. This booklet does not attempt to describe individual state laws therefore employees should consult an attorney who is licensed in their particular state to determine if state law provides them with added protection.
This chapter explains how employees of private organizations are protected by Title VII. The rules of law stated apply to government employees, but focus on private employees because Title VII is usually their only remedy.
Q Can I share the Gospel with co-workers at work?
A If required by their religious beliefs, an employee's religiously motivated expressions of faith are protected by Title VII. For instance, in conversations with other employees, you may refer to Biblical passages on slothfulness and "work ethics."18 Employees can engage in religious speech at work as long as there is no actual imposition on co-workers or disruption of the work routine.19 Generally, no disruption of the work routine will occur if an employee's witnessing takes place during breaks, or other free time. If other employees are permitted to use electronic mail and screen savers for speech that is not related to work, an employee who has a sincerely held religious belief to communicate their faith with others should also be able to use these modes of communication.
To ensure that their religious speech is protected by Title VII, an employee should first of all be able to honestly say that their religious beliefs require them to share the Gospel whenever possible with willing co-workers during breaks or other free time. The employee must then inform the employer of this religious belief (preferably in writing). At that point, the employer must attempt to accommodate this religious belief unless it will cause the employer "undue hardship."
Q Can I keep my Bible or other religious items
at my desk?
A Yes. As with witnessing to co-workers, an employee can bring his Bible to work and keep it at his desk if he is required to do so by sincerely held religious beliefs. To ensure that this religious belief of having a Bible or other religious items at work is protected by Title VII, an employee should first of all be able to honestly say that their religious beliefs require them to bring these items to work. The employee must then inform the employer of this religious belief (preferably in writing). The employer is then required to attempt to accommodate this belief.
Q Is my employer permitted to restrict what I say
when I am not at work?
A Employers generally cannot discriminate against employees because of religious speech expressed outside of the workplace.20 The only possible exception is if speech activity engaged in outside the workplace directly affects the employee's ability to perform his job properly. For instance, even though not acting in their official capacity, judges have been prohibited from speaking out about issues on which they may have to rule.21
Q Do I have to work on Sundays if my religion
A Employers must accommodate requests by employees for absence on their Sabbath or other religious holidays. An affirmative duty arises under Title VII for the employer to make a good faith effort to arrange the employee's schedule to allow the employee to have Sabbaths off. 22 The employer will be in violation of Title VII if they have "made no real effort" or have taken a "don't care" attitude.23
For instance, courts have held that an employer is required to accommodate a World Wide Church of God employee who observed his Sabbath from sunset on Friday to sunset on Saturday. The reason for this decision is that the employer did not incur additional costs from the accommodation because they employed extra men at all times to cover unscheduled absences. 24
The employer's affirmative duty to attempt to accommodate the employee's request for time off is not limited if the employee asks for more than one accommodation. For instance, an employee who belongs to the World Wide Church of God requested time off in view of two sincerely held religious beliefs: (1) attending a religious festival during her normal working shift, and (2) refraining from all work during the religious festival. The employer argued that accommodating one of these religious beliefs satisfied their duty under Title VII. But the Court ruled against the employer, refusing to "condone an employer's entire lack of effort to accommodate a given conflict merely because the employer offered to accommodate other ones."25
The same rule applies where an employee's religious beliefs prevent him from working on Sundays, and prevent him from asking someone else to engage in this prohibited activity for him. Merely allowing the employee to swap shifts with someone does not constitute reasonable accommodation in this instance. In addition to allowing the employee to be off on Sundays, the employer has an affirmative duty to arrange a swap for the employee.26 Employees must be careful to specifically inform their employer of this religious belief not to ask anyone else to work on Sunday either.
In sum, employers must attempt to accommodate an employee's need for days off due to religious beliefs. At a minimum, the employer's duty to accommodate includes allowing employees to trade shifts, and may require the employer to arrange for the trade.
Q Can my employer force me to work on jobs that support abortion?
A Title VII requires employers to accommodate employees who refuse to do specific tasks because of a conflict with religious beliefs. For instance, an employer has been required to accommodate a religious worker's objections to abortion.27 In that case, an Internal Revenue Service employee refused to handle applications for tax exempt status submitted by any organization which supported abortion. The court ruled that accommodating the employee would not result in undue hardship to the employer because the number of applications the employee might refuse to handle would be relatively insignificant as compared to his total workload.
So employees who have a religious objection to abortion can request that their employer not require them to work on projects involving abortion. The employer will be required to grant this request if it can assign these projects to other employees without undue hardship.
Q Can my employer require me to speak in a way that violates my religious convictions?
A An employee cannot be forced to speak in a manner that would violate his religion. For example, when an employee was fired for refusing, based on religious beliefs, to answer the telephone with "Merry Christmas, Lesco," the court found that the employer should have accommodated the Jehovah's Witness employee's religious convictions regarding the observance of Christmas.28 The employer should have provided other ways for the employee to answer the phone or assigned her to a different task during the Christmas season.
Q Do I have to pay union dues if it would violate my religious beliefs?
A Many employees object to the causes that some unions support, such as Planned Parenthood, or other pro-abortion organizations. Several courts have held that those objecting to the payment of union dues on religious grounds should be accommodated by allowing employees to contribute an amount equal to their dues to an acceptable charity.29 Another possible accommodation is discounting the union dues in proportion to the amount of money spent on the objectionable union activity.30
Q Can I go to work dressed in the particular fashion required by my religion?
A Employers must accommodate religious beliefs requiring an employee to dress or groom in a certain manner, unless the rule prohibiting certain religious dressing is justified by a business necessity. The EEOC has ruled that a nurse whose Old Catholic faith required her to wear a scarf was unlawfully discharged for refusing to come to work without the scarf, because requiring the nurse to wear a cap instead of the scarf was "not so necessary to the operation of [the employer's] business as to justify the effect that this policy has upon the religious convictions."31 Title VII has also been found to protect an employee's religious belief that she must wear a
Pro-Life button at all times, even at work.32
An employer, however, does not discriminate against an employee by requiring him to shave his long facial hair and refrain from wearing a turban, if both of these religious practices result in safety hazards by preventing a hard hat and respirator from being worn properly.33
Q Are there any types of religious beliefs or behavior not protected by Title VII?
A Generally, all sincerely held religious beliefs are protected by Title VII. When a Title VII religious claim fails, it is often because the employer is able to show the employee was discriminated against for inefficiency, bad work product, or an inability to get along with co-workers rather than because of the asserted religious practice. A frequent example is when an employee's religious speech is couched in an argumentative, confrontational style that inhibits cooperation with other employees.34 In such cases, the court is likely to determine that the employee was not discriminated against because of his religious beliefs, but because of his offensive conduct in the office.35
Q Do I have to attend training if it violates my
A An employee cannot be required to attend training that will violate their sincerely held religious beliefs. The EEOC has ruled that an employer violates Title VII if it requires an employee to attend training containing a philosophy that conflicts with the employee's religious beliefs.36 The EEOC found that the employer failed to show how accommodating the religious convictions of these employees by not requiring them to attend the training would result in an undue hardship.
Q When can my employer refuse to accommodate my religious beliefs because it will cause an undue hardship?
A There are very few times when employers can require employees to violate their religious beliefs, or refuse to allow the employee to practice his religious beliefs at work. Employees can take such actions only if it would cause the employer an undue hardship. In order to successfully assert this defense, courts require that the employer demonstrate attempted accommodation before claiming undue hardship.37
Employers must also be able to show evidence of undue hardship that is more than mere speculation.38 For example, undue hardship requires more than proof that other employees would grumble or be unhappy about a particular accommodation.39
[A]n employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operative routine. In addition, we are somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that never has been put into practice. The employer is on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted.40
An employer is not required however, to accommodate a particular religious belief if it would require more than a de minimis cost. For instance, an employer does not have to accommodate a religious belief to be off on Sundays if it would cause the employer to adjust the seniority policy and pay overtime to a replacement.41 Employers may also consider public safety when establishing undue hardship. For instance, substituting an untrained employee for a highly trained lineman to work on high-voltage power lines could result in undue hardship.42
It should also be emphasized that the Establishment Clause has absolutely no bearing on private employers. At the ACLJ we often hear private employers attempt to justify their discriminatory treatment of religious employees by quoting the phrase "separation of church and state." Even if this phrase were the law, and it is not, it would not require private employees to have religion-free work environments. Private people or companies are not the government and therefore can never violate the Establishment Clause.43
Q How do I file a claim under Title VII if my religious rights have been violated?
A It is recommended that the employee contact an attorney before beginning this process. Because the process must be completed correctly in order to preserve your claim and because it may vary from state to state, it is important to obtain competent legal counsel before beginning.
Title VII first requires that the charge be filed with a state agency if the violation occurs within a state that has set up an agency for handling discrimination claims. If your state does not have its own human rights commission or similar agency, you should file directly with the EEOC. Practically speaking, this means contacting the state agency or EEOC in your state by telephone and informing them that you wish to file a complaint. They will then instruct you on how and where to fill out the necessary paper work. In states that have an agency for handling these claims, filing with the state agency must be followed by timely filing the charge with the EEOC. Some state agencies will do this for you.
Usually the complaint must be filed within 180 days of the discriminatory act. The time period is measured from the date that the discriminatory act occurred. Upon the filing of the charge there is a 180 day mandatory waiting period, during which time the EEOC is given the opportunity to mediate and resolve the complaint. The private litigant then has 90 days in which to file suit. This limitation period runs not from the discriminatory act, but from the date the private party receives notice from the EEOC or state agency that conciliation was completed, or the date the party receives a right to sue letter. For a more detailed description of this process, see Appendix I
Chapter Three - Government Employees
Government employees are protected by both Title VII and the United States Constitution against religious discrimination. Public employees do not forfeit their First Amendment rights upon entering the public workplace.44 Therefore, the religious freedom of government employees has the additional protection of the Free Exercise and Free Speech Clauses of the First Amendment to the United States Constitution. This chapter explains how government employees are protected by the First Amendment above and beyond the protection they have from Title VII.
Q As a government employee, is all my religious speech at work protected by the First Amendment?
A A public employee receives greater speech protection when speaking "as a citizen upon matters of public concern" than he does when commenting on employment matters of personal or internal interest.45 When evaluating these cases, the Supreme Court has traditionally utilized a test which balances the importance of the employee's speech on a matter of public concern against the government's need to run an efficient workplace.46 Religious speech will always be a matter of public concern.
For example, in Tucker v. State of California Dept. of Educ.,47 a federal Court of Appeals found religious speech to be a matter of public concern, and used Pickering to protect the religious liberties of a state education department employee who believed that he was commanded to "give credit to God for the work he perform[ed]." He engaged in religious discussions, and kept religious material around his work area. Tucker prevailed when the court weighed the state's asserted interests of efficiency, protecting the liberty interests of other employees, and avoiding Establishment Clause issues against the weight of a "broad ban on group speech." The court rejected the employer's contention that the religious speech reduced efficiency since other types of non-work related speech were permitted. The court also rejected the argument that the employee's speech violated the Establishment Clause because there was no way it could have been attributed to the state.
Therefore, religious speech of government employees is protected so long as it does not significantly reduce efficiency in the workplace, and so long as it will not be attributed to the government employer.
Q As a government employee, can I keep religious items in my personal work area?
A The First Amendment also protects the right of public employees to keep items with religious messages on them at their desk. In a case where an employee had a Bible and plaques containing the serenity prayer, the Lord's Prayer, and one that said, "God be in my life and in my commitment" in his office, the government employer violated the First Amendment when it demanded that these items be removed because they might be considered "offensive to employees." 48 The fact that other employees may find these items offensive is irrelevant when considered in light of First Amendment freedoms.49
Q As a government employee, can I advertise events at my church on the bulletin board at work?
A If a government employer allows employees to post non-work related material around the office, they cannot prohibit the posting of religious material. "[I]t is not reasonable to allow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and materials."50 Religious speech is given the same expansive protections offered to secular speech inviting "employees to motorcycle rallies, swap meets, x-rated movies, beer busts, or burlesque shows." Allowing this speech while prohibiting advertising for religious events "is unreasonable not only because it bans a vast amount of material without legitimate justification but also because its sole target is religious speech."51
Q Doesn't religious speech by government employees violate the "Separation Between Church and State?"
A The oft cited phrase "separation between church and state" is found nowhere in the Constitution. This phrase has been misused by many in this country to mislead people and trick them into believing that the government can have absolutely nothing to do with religion. The truth is the Constitution only prohibits the establishment of religion through the Establishment Clause of the First Amendment.
The Establishment Clause of the First Amendment does not provide the government with any justification for prohibiting religious expression in the workplace.52 As the United States Supreme Court said in this regard: "The Establishment Clause does not license government to treat religion and those who teach or practice it, simply by virtue of their status as such, as subversive of American ideals and therefore subject to unique disabilities."53
We emphasize, too, that fear alone, even fear of discrimination or other illegal activity, is not enough to justify such a mobilization of governmental force against [an employee]. A phobia of religion, for instance, no matter how real subjectively, will not do. As Justice Brandeis has said,." Men feared witches and burnt women."54
In August of 1997, President Clinton took the remarkable step of issuing guidelines confirming that federal workers can express their faith on the job. These guidelines direct federal agencies to "permit personal religious expression by federal employees to the greatest extent possible."55 The guidelines are instructive for all government employees and employers and are reproduced in full in Appendix Two, beginning on page 31.
In sum, governmental employers may restrict religious activity in the workplace only if it prohibits the government from running an efficient workplace, or there is clear evidence that it is intimidating or harassing to co-workers. Speculative fears of offense or employee discontent do not provide the government with an excuse for discriminating against religious employees who express their faith through words, actions, or symbols.
Chapter Four - Employer Religious Beliefs
Many employers have sincerely held religious beliefs which they want their businesses to reflect. But federal and state laws prohibiting religious discrimination in employment have discouraged many business owners from communicating their religious convictions at work. The good news is that, just like employees, business owners do not have to check their religion at the door when they come to work. The following information provides some guidance for religious employers who want their business to reflect their faith.
Q Do employers unlawfully discriminate if they base business objectives and goals upon Biblical principles?
A No. An employer does not discriminate on the basis of religion by affirming the faith of its owners in business objectives.56 "Title VII does not, and could not, require individual employers to abandon their religion."57 Employers must be careful, however, not to give prospective or current employees the perception that employment or advancement with the company depends on acquiescence in the religious beliefs of the employer. This can be accomplished in a number of ways. For instance, applications for employment should state that applicants are considered for all positions without regard to religion. This statement should also be included in any orientation materials, employee handbooks, and employee evaluation forms. Of course, employers must also be sure that this statement is accurate but not discriminating on the basis of religion.
Q As the owner of the business, can I witness to my employees?
A An employer can talk about his religious beliefs with employees as long as employees know that continued employment or advancement within the company is not conditioned upon acquiescence in the employer's religious beliefs. For instance, one court has held that an employer did not discriminate against an employee by sharing the gospel with him and inviting him to church.58 Employers must be careful, however, not to persist in witnessing if the employee objects. Such unwanted proselytizing could be deemed religious harassment. Employers cannot impose their religious beliefs on their employees.59
Q Am I permitted to give my employees religious literature?
A As with spoken religious speech, employers can share their religious beliefs with their employees in print form such as pamphlets, books, and newsletters.60 Employers must be careful, however, not to give employees the impression that they have to agree with the employer's religious beliefs in order to keep their job or get a promotion. For instance, in one case a Jewish employee was wrongfully terminated for complaining about the printing of Bible verses on his paychecks and the religious content of a company newsletter.61 If an employer shares religious convictions with employees, and the employee disagrees or protests, no adverse action can be taken against the employee.
Furthermore, employers should be ready to accommodate any employee's objections to the religious speech contained in publications distributed to employees. Sufficient accommodation may be to provide the objecting employee with a publication that does not contain the religious content. In order to counter any impression given by publications that job security and advancement are contingent upon faith, it is also recommended that publications with religious material state that the employer does not discriminate on the basis of religion for purposes of continued employment, employee benefits, or promotion.
Q Can an employer hold regular prayer meetings or chaplain services for employees?
A Employers can hold regular devotional meetings for employees so long as attendance is not required.62 Moreover, active participation of management in these meetings does not make them discriminatory.63 To ensure that employees understand that devotional meetings are voluntary, notice of the meetings should state that they are not mandatory and it is wise to hold these meetings before the work day begins, during breaks, or after work.
Q Can I require my employees to attend training based on Biblical principles?
A Employers can use training programs that are based on the Bible. For instance, requiring an employee to attend a management seminar put on by the Institute of Basic Life Principles which used scriptural passages to support the lessons it sought to promote did not violate a Massachusetts civil rights law.64 Employees cannot, however, be required to undergo religious training, participate in religious services, or engage in behavior that would violate their sincerely held religious beliefs. See Part I to this Booklet.
Appendix One - Title VII Overview
A. Threshold Requirements For Title VII Coverage
Title VII applies to most large private employers as well as to governmental employers. With regard to employers, Title VII states:
(a) Employer practices. It shall be an unlawful employment practice for an employer-
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.
42 U.S.C. 2000e-2. Title VII defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 42 U.S.C. 2000e(b). Title VII therefore covers an employer who has fifteen or more employees on his payroll for at least twenty weeks during a given year. Once coverage is established in a given year, Title VII coverage will extend through the following year, even if the number of employees falls below the minimum.
As to what is an "employee," the statute is not limited to traditional definitions of employees. "Employee" includes all who "are susceptible to the kind of unlawful practices that Title VII was intended to remedy."65 Thus, Title VII may apply even if the employee is an independent contractor.
The statute also applies to state and local governments through 42 U.S.C. 2000e(a), and to the federal government via 42 U.S.C. 2000e-16. In fact, Title VII is the exclusive judicial remedy offering injunctive relief for discrimination in federal employment.66 Title VII does not apply to religious organizations. 42 U.S.C. 2000e-1. 42 U.S.C. 2000e-2(b) - (d) brings employment agencies, labor organizations, and training programs under the umbrella of Title VII.
B. Title VII Procedures: Private Defendants
1. Deferral to State Agencies
The majority of jurisdictions have "deferral agencies," typically denoted as a "state equal employment opportunity agency" or "human rights commission." These are state or local agencies authorized to seek or grant relief from the discriminatory practice or to institute criminal proceedings. 42 U.S.C. 2000e-5(c). Charges must be filed with both the state or local agency as well as with the EEOC. The EEOC is required by statute to allow a deferral agency not less than 60 days after the charge is filed to dispose of the charge. 42 U.S.C. 2000e-5(d). The majority of states require a charge to be filed with their deferral agency within 180 days following the act of discrimination.
In deferral jurisdictions EEOC has no jurisdiction unless a timely charge is first filed with the deferral agency. Although EEOC may initially accept a charge and file with the state agency on its own initiative, this should not be replied upon. The aggrieved party should file a timely charge directly with the deferral agency to ensure meeting this prerequisite to filing suit. A local agency may waive its 60-day deferral period through a work-sharing agreement with the EEOC, thus "terminating" the agency's proceedings so that the EEOC may deem a charge filed and begin processing it.
2. Filing with the EEOC
In states without a deferral agency, charges of specific discriminatory acts must be filed with the EEOC within 180 days after the discriminatory act occurred.67 This and other time periods specified by Title VII may be tolled when equity demands modification.68 Where there is a state deferral agency, the time period for filing with the EEOC is extended to 300 days, or within 30 days after receiving notice that the state has terminated the proceedings under state or local law, whichever is earlier.69 The EEOC may, if it receives the charge first, file the state charge on its own initiative and then automatically re-file the charge with itself after the 60-day deferral period expires.70 The surest course of action, however, is to directly file the EEOC charge once the state deferral period expires or the state terminates its investigation, whichever comes first.71
Once the charge is timely filed, EEOC has 180 days of exclusive jurisdiction over the charge. Because the state deferral period is mandatory, the combined effect is that a plaintiff must first await the results of state efforts for 60 days, then ensure that an EEOC charge is filed, and then await the results of EEOC conciliation efforts for 180 days. There is no statute of limitation on the EEOC's investigation and conciliation efforts.
3. Civil Actions by the EEOC or by the Aggrieved Party
The EEOC may bring a civil action if it fails to secure a conciliation agreement within 30 days of either the charge being filed with EEOC or the 60 day state deferral period expiring.72 If the EEOC dismisses a charge filed with it, or if the EEOC fails to file a civil action within 180 days of exclusive jurisdiction, then the EEOC must so notify the person aggrieved.73 Alternatively, when EEOC conciliation efforts extend past the 180 days of exclusive EEOC jurisdiction, the aggrieved person need not await the outcome of conciliation but may instead request a "notice-of-right-to-sue." In either circumstance, the aggrieved person may then bring a civil action on his own behalf within 90 days of receipt of such notice.74 Should the aggrieved person allow the EEOC to continue its conciliation efforts past the exclusive jurisdiction period, he may file suit if the final EEOC resolution is adverse to him, even if the conciliation takes years to complete.
In the case where the aggrieved person is a state or local government employee and the Commission fails to secure a conciliation agreement, it must refer the case to the Attorney General. The person aggrieved has a right to intervene in a civil action brought by the Commission or the Attorney General.75 The charging party may bring suit on his behalf subject to the same limitations above. After suit is filed, the EEOC is precluded from filing an independent action.
In summary, Title VII first requires that the charge be filed with the deferral agency if within a deferral jurisdiction, or directly with the EEOC if not. In deferral jurisdictions, filing with the deferral agency must be followed by timely filing the charge with the EEOC. The time periods are measured from the date that the discriminatory act occurred. Upon filing of the charge there is a 180 day mandatory waiting period, during which time the EEOC is given the opportunity to mediate and resolve the complaint. The private litigant then has 90 days in which to file suit. This limitation period runs not from the discriminatory act, but from the date the private party receives notice from the EEOC because either conciliation was completed or the pary requested a right to sue letter.
C. Title VII Procedures: Federal Defendants
Title VII requires federal defendants to use significantly different procedures. Within the federal government the employing agency is the primary administrator for Title VII. Claims are filed with Equal Employment Opportunity Counselors within the offending agency, not with the EEOC. Before a formal claim is filed, the aggrieved person must file a "pre-complaint" notice with a counselor within 45 days of the discriminatory act.76 The counselor must attempt to resolve the dispute within 30 days.77 At the end of the dispute resolution period, a final interview is conducted with the aggrieved party. If the matter has not been resolved, written notice is given to the aggrieved party. Formal charges may then be filed with "appropriate agency officials" within 15 days of receipt of that notice.78 The agency then has 180 days from filing to resolve the complaint; at the end of this period, the complainant may either request a hearing before an administrative law judge or accept a final agency disposition without further hearings.79
The aggrieved party need not wait for the administrative procedures to run their full course. A civil action in federal district court may be commenced when 180 days have elapsed since the filing of the formal complaint.80 If the agency has made a determination on the formal charge, the aggrieved party may file suit within 90 days of receipt of the "decision letter."81
Alternatively, the agency's final decision or dismissal of the complaint may be appealed to the EEOC within 30 days of receiving the decision letter.82 As of 1997, there is no set time period limiting the length of appellate review by the EEOC.83 Once EEOC issues a final decision on the appeal, the aggrieved party has 90 days from receipt of the final decision to file a civil action.84
Appendix Two - Guidelines On Religious Exercise And Religious Expression In The Federal Workplace
The following Guidelines, addressing religious exercise and religious expression, shall apply to all civilian executive branch agencies, officials, and employees in the Federal workplace.
These Guidelines principally address employees' religious exercise and religious expression when the employees are acting in their personal capacity within the Federal workplace and the public does not have regular exposure to the workplace. The Guidelines do not comprehensively address whether and when the government and its employees may engage in religious speech directed at the public. They also do not address religious exercise and religious expression by uniformed military personnel, or the conduct of business by chaplains employed by the Federal Government. Nor do the Guidelines define the rights and responsibilities of non-governmental employers - including religious employers - and their employees. Although these Guidelines, including the examples cited in them, should answer the most frequently encountered questions in the Federal workplace, actual cases sometimes will be complicated by additional facts and circumstances that may require a different result from the one the Guidelines indicate.
Section 1. Guidelines for Religious Exercise and Religious Expression in the Federal Workplace.
Executive departments and agencies ("agencies") shall permit personal religious expression by Federal employees to the greatest extent possible, consistent with requirements of law and interests in workplace efficiency as described in this set of Guidelines. Agencies shall not discriminate against employees on t
The Senate Judiciary Committee is going to subpoena Twitter CEO Jack Dorsey over censorship. On today’s Jay Sekulow Live , we discussed the Senate Judiciary Committee announcing its intentions to subpoena the Twitter CEO over censorship of conservatives and even the press and to hold a hearing next...
The Johnson Amendment is the controversial provision in the U.S. tax code that prohibits all 501(c)(3) non-profit organizations from participating or intervening in “any political campaign on behalf of (or in opposition to) any candidate for public office.” As it relates to churches and other...
On May 28th, 2020 President Donald Trump released his Executive Order (“EO”) titled, “Preventing Online Censorship.” In releasing the full text of the EO, mainstream media outlets like NBC news were quick to criticize the Presidential order, characterizing it as just a “response to Twitter,” which...
Last week, the American Center for Law and Justice (ACLJ) filed an amicus brief in two related cases, Americans for Prosperity Foundation (AFP) v. Becerra and Thomas More Law Center (TMLC) v. Becerra. Both cases began in California when the Attorney General required all charities to submit lists of...