Writing the Book on Religious Freedom in the Workplace: ACLJ Files Comments in Support of EEOC’s Updated Compliance Manual on Religious Discrimination

Does a person of faith have to leave his religious commitments at home when he enters the workplace? Does he have to place job duties ahead of his religious ones? What if an employer assigns a task that would require one to violate one’s religious beliefs?

Unfortunately, far too many people (both employers and employees alike) think that religion and the workplace should never mix. They believe that whatever management says, goes; and if the employee doesn’t like it—even if it requires him to act contrary to his religious principles—then that individual should just work someplace else. Some have even asserted that if a doctor, nurse, or pharmacist refuses to participate in certain procedures or to dispense specific drugs (including abortion-related drugs such as RU-486 or Plan B), then that person should pursue another career entirely.

Those views are very much misguided. As explained in more detail here, the Civil Rights Act of 1964, commonly referred to as “Title VII,” prohibits employers with more than 15 employees from discriminating against an employee based on his or her religious beliefs. This prohibition involves more than refusing to hire a person because he’s Jewish, or firing an individual because she’s Catholic. Title VII also prohibits an employer from refusing to “accommodate all aspects of religious observance and practice,” unless doing so would create an “undue hardship on the conduct of the employer’s business.” In other words, under federal law, an employer must (absent undue hardship) eliminate any conflict between an employee’s sincerely held religious beliefs and a job requirement—and must do so without firing, demoting, or otherwise discriminating against the employee. A reasonable accommodation, the Supreme Court has stated, is one that “eliminates the conflict between employment requirements and religious practices.”

The federal agency charged with enforcing Title VII—which not only prohibits religious discrimination, but also discrimination for race, color, sex, et al.—is the Equal Employment Opportunity Commission (“EEOC”). Not only does the EEOC investigate workplace discrimination claims, and in some instances file suit based on what those investigations reveal, it also issues regulations and provides employers and employees with necessary information about their rights and duties under the law.

The best example of this educational function of the EEOC is its “Compliance Manual.” The manual, along with regulations and policy and enforcement guidelines, provides instructions for investigating and analyzing claims of discrimination. As the Supreme Court has observed, the manual reflects “a body of experience and informed judgment to which courts and litigants may properly resort for guidance” and is thus “entitled to a measure of respect.”

In November, the EEOC published a proposed update to its Compliance Manual Section on Religious Discrimination and sought public comments. Because the last compliance manual on religious discrimination was published 12 years ago, the manual provides critical, up-to-date information.

Recently, the ACLJ filed official comments in support of the proposed manual, specifically addressing those parts of the manual that concern religious accommodation. As our comments explain, the ACLJ has decades of experience in representing religious believers in the workplace. We have represented pharmacists who would not dispense Plan B pursuant to their religious beliefs; drivers who could not transport patients or customers to an abortion facility; an insurance claims processor who could not in good conscience process claims for abortions; a doctor who had to decline providing family planning services to teen patients; a social worker who did not wish to refer clients to abortion-related services; employees who needed to avoid work on the Sabbath or Sunday; and the list goes on.

Most recently, as described in more detail here, the U.S. Department of Justice last week filed a lawsuit against the University of Vermont Medical Center for violating federal conscience laws. That case directly involves a nurse client of ours who was deliberately misled into participating in an elective abortion—even though our client’s religious objection to participating in abortions was well known and documented.

Our comments to the EEOC—which are based on the ACLJ’s long-standing experience and expertise in this area—can be summarized as follows:

• The manual correctly emphasizes an individualized and personal understanding of what constitutes religious belief and practice.
• The manual correctly makes it clear, in light of recent Supreme Court precedent, that Title VII specifically grants religion-favored treatment.
• The ACLJ supports the EEOC’s position that the denial of a religious accommodation absent undue hardship is, standing alone, actionable under Title VII.
• The manual provides important updated guidance regarding an employer’s notice of the possible need for religious accommodation.
• The manual provides important guidance regarding the fact-sensitive inquiry of what constitutes “undue hardship.”
• The manual’s discussion of religious expression in the workplace is balanced and measured.

As we state in our comments, the importance of Title VII’s protection for religious freedom in the workplace cannot be denied:

The religious diversity within the American workplace reflects the religious diversity of the country itself. Impermissibly discriminating against an employee because of his or her religion not only injures that individual but harms society as a whole, which has a committed interest—as the founders of the country well understood—to protecting the sanctity of conscience and religious exercise. Title VII reflects that commitment by standing for the proposition that persons need not abandon their religious identity and commitments when on the job. As the Fourth Circuit observed, “Free religious exercise would mean little if restricted to places of worship or days of observance, only to disappear the next morning at work.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008). Title VII furthers a healthy religious pluralism by aiming to strike a balance between the interests of the employer and the religious beliefs and practices of its employees.

The future of religious freedom in this country cannot be fully secured unless people are free to exercise their religious beliefs in the workplace. All too often, employers and employees are ignorant of what Title VII requires in this area. Employees are frequently misguided about what rights they have in the workplace under Title VII and employers many times misunderstand the legal duties they are obligated to fulfill. The proposed manual, if adopted, will provide much-needed guidance for all stakeholders who are interested in understanding and complying with Title VII and its purposes.

As we conclude our comments: “The ACLJ commends the EEOC for its work in researching, drafting, and proposing the updated Religious Discrimination Compliance Manual. It should be finalized and published without delay.”

Protecting religious believers has always been a critical part of the ACLJ’s mission, and we remain ready and willing to assist those who face discrimination in the workplace on account of their religious beliefs and practices.