A New Day for Religious Discrimination?

Not long ago, the Equal Employment Opportunity Commission issued a new compliance manual section on religious discrimination in the workplace.  Part of the new section includes a “best practices” booklet.  In its press release about the new section, the EEOC said it was issuing this in response to an increase in charges of religious discrimination, increased religious diversity in the U.S., and requests for guidance from employers and agency investigators.  It didn’t say that this new section represented a change in the EEOC’s position on religious discrimination, and most folks who’ve commented on it haven’t found anything groundbreaking about it–just something generally helpful.  After reviewing the section a couple of times, I think we may have missed something groundbreaking.  So, The Word is going in-depth on this post.

This new compliance section replaces nothing.  There wasn’t an old section, so it’s new in every respect.  In the part of this new section dealing with religious accommodation, the EEOC makes what I find to be a remarkable statement:  “Some employers have integrated their own religious beliefs or practices into the workplace, and they are entitled to do so.  However, if an employer holds religious services or programs to include prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship.  Excusing an employee from religious services normally does not create an undue hardship because it does not cost the employer anything and does not disrupt business operations or other workers.”

In 1988, the EEOC challenged an employer’s mandatory devotional services, contending they were per se discriminatory.  In ultimately deciding this case, EEOC v. Townley Engineering & Mfg. Co., the Ninth Circuit Court of Appeals disagreed with the EEOC.  The court found that these devotionals weren’t discriminatory as long as the employer excused any employee who didn’t want to participate.  The U.S. Supreme Court has never ruled on this question, and as far as I can determine, no other court has definitively considered this matter.

I have been under the impression, perhaps mistakenly, that despite the Ninth Circuit’s ruling, the EEOC still held to the view that workplace devotionals smacked of religious discrimination, because even if an employee is excused (as a reasonable accommodation), it places the employee in a difficult situation when he/she knows (or believes) that the CEO finds these devotionals to be important and, in fact, expects every employee to attend.

Whether I was mistaken or not, there’s no mistaking what the EEOC’s position is now.  It’s in black and white:  employers can hold worship services at work during business hours.  One of the reasons I find this new position to be remarkable is one of the reasons the EEOC gives for taking this position:  increasing religious diversity.  That would argue against workplace worship.

Another reason given for this new compliance section is the increasing number of religious discrimination complaints.  Yet the EEOC’s new position will surely result in more employer-sponsored religious services, which will result in even more religious discrimination complaints.

As previously noted, the EEOC says that in the case of religious services at work, an employee is entitled to an accommodation if he/she doesn’t want to attend.  Although the EEOC doesn’t say that allowing an employee to be excused from a workplace religious service is the only accommodation, that’s the only example given by the EEOC.  There may be other appropriate accommodations as long as they don’t cause the employer an undue hardship.

Most workplace religious services are Christian in nature, and most of them have a Protestant or Evangelical bent.  Let’s say a Catholic employee asks, as an accommodation, to organize a simultaneous religious service conducted by a Catholic priest.  Only a small amount of space is needed, and if there is no available space, the service will conducted outdoors.  The priest will work for free.  How could this possibly cause an undue hardship?  It won’t cost the employer anything, and it won’t disrupt workplace operations, because it’s occurring at the same time of the employer-sponsored service. 

Given the increasing religious diversity in the workplace, there are other groups who could ask for their own alternative religious services:  Evangelical, Baptist, Methodist, Episcopal, Presbyterian, Lutheran, Nazarene, Seventh-Day Adventist, Church of Christ, African Methodist Episcopal, Pentecostal, Mormon, Jehovah’s Witness, Unitarian, Non-Denominational, Jew, Buddhist, and Muslim.  And, of course, there are a lot of others, particularly when you take into account the variations, branches and divisions of the churches/denominations/religions named above.  The EEOC just may have opened Pandora’s box.

Don’t get me wrong.  I like to go to church.  I value the freedom of religion.  It’s an important hallmark of this country.  But most employers aren’t churches, and they have employees who have widely divergent religious beliefs.  It’s highly inconsistent to have a law preventing religious discrimination in the workplace and an enforcement agency that tells employers they can conduct worship services in the workplace.

With services going on for various Christian groups, Jews, Muslims, Buddhists and perhaps even atheists, it’ll be hard to get much work done.  And if employers deny an employee the right to organize a service for his/her own religious group at the same time the employer is conducting its service, it’ll be hard to avoid an even sharper increase in religious discrimination charges that the EEOC says it’s trying to prevent.