Sixth Circuit Rejects Two Religious Exemption Challenges to Employer COVID Vaccination Policies

In what seems never-ending COVID-19 litigation, the Sixth Circuit affirmed summary judgment for two employers who were sued for violating employees’ religious beliefs.  In the first, the employee was provided with a weekly testing accommodation to avoid vaccination, but she rejected it as coercive, manipulative and invasive even though the employer permitted saliva testing.  DeVore v. Univ. of Kentucky Bd of Trustees, No. 23-5890 (6^th Cir. 10/11/24).  The Court found that she failed to produce any evidence to show a conflict with her unspecified religion or beliefs and the employer’s test-or- vaccinate policy.   In the most recent case, the employee’s request to work remotely without a vaccination was denied because her essential job duties required her to work daily with healthcare providers who are tending extremely ill children.  Kaiser v. St. Jude’s Children’s Research Hosp., No. 24-5207 (11/18/24).   The Court found that it would constitute an undue hardship to transfer her to another job and determine whether a different job could be performed remotely even though it had permitted a dozen other employees to work remotely as an accommodation.  It also rejected her direct supervisor’s affidavit as conclusory about whether accommodations existed and the manner in which her job duties could be performed remotely.  Finally, the Court rejected her argument that the employer failed to engage in an interactive process or that an elaborate process was even required under Title VII (vs the ADA). 

According to the Court’s opinion in DeVore, the plaintiff had worked for the University since 1999.  Following the COVID pandemic, she requested to retain a hybrid work schedule, but was refused.   When the University instituted a vaccinate-or-test policy, she sought a religious exemption.  While never specifying the name or nature of her religion, she objected to the policy as coercive (i.e., could be fired for non-compliance), manipulative (i.e., trying to compel vaccination) and invasive (i.e., genetically reprogram her or risk contamination from nasal swabs, etc.).  The University then agreed to permit her to be tested with cheek swabs or saliva, but she maintained her “religious objections.”   She was subjected to progressive discipline and threatened with termination during an unpaid suspension.  However, the University encouraged and permitted her to retire instead.   In response to the University’s summary judgment motion, she submitted only her prior emails and no affidavits or deposition testimony. 

[She]  offers no other evidence to show a conflict between her religion and the Policy. She supplied no affidavit or declaration articulating how complying with the Policy conflicts with her religious beliefs or practices. She entered none of her own deposition testimony in the record to add color to the excerpts the University provides. She filed a six-page complaint, which in any event is unverified, that included only the conclusory statement that “due to her deeply held religious beliefs,” she “objected to mandatory Covid testing.” [She] has, in fact, throughout this litigation never identified in the record what her religion is.

In the end, [her] religious opposition to the Policy flows almost entirely from her objections to nasal PCR testing and vaccination, objections she raised before the University informed her that she could comply with the Policy via oral swab or saliva tests, and she fails to account for these alternatives. Her invasiveness objection responds only to nasal swab testing, her manipulation objection ignores testing as a bona fide substitute for vaccinating, and her coercion objection doubles down on her manipulation objection, supplementing it with only her “personal” characterization of mandatory testing as inequitable and unfair.  . . .  But they fail at summary judgment to establish a conflict between [her] religion and the Policy. [Her] Title VII claim fails with them.

According to the Court’s opinion in Kizer, the plaintiff “was employed by [the] Hospital as an Electronic Health Record (“EHR”) Applications Analyst assisting with preparations for the hospital’s two-year-long transition to a complex new EHR system known as “Epic.”’  The Hospital also implemented a mandatory vaccination policy (to protect its pediatric patients) with a religious exemption process. The plaintiff sought an exemption and sought to work remotely.  However, when examining her primary job duties, the Hospital denied the request because of “the upcoming launch (or “go live”) of the new Epic system and  . . . her job required her to work in person in clinical areas and in contact with clinical people.”  In particular, “in the run up to the system’s “go live” date, “it was anticipated that [she] would shadow clinicians, nurses, research coordinators, clinical laboratory personnel, pharmacists and others involved in clinical research, often in yellow-zoned clinical areas, to better understand decision-making and workflow for the build of the new system.”’ Apparently, after she was fired, she suggested other possible accommodations which were never considered.  She ultimately submitted an affidavit from her direct supervisor suggesting that some of her duties could have been transferred to vaccinated staff or she could be reassigned to a position which could accommodate remote work.

The Court rejected the plaintiff’s argument that the Hospital failed to reasonably accommodate her request because it never consulted with her or her direct supervisor or engaged in any interactive process (like would be required in evaluating reasonable accommodation requests under the ADA). 

Though [the plaintiff]  frames this assertion as a factual dispute, she has pointed to no legal authority that would require employers considering Title VII accommodations (rather than accommodations under the Americans with Disabilities Act (ADA)) to engage in such a process, much less any legal authority holding that Title VII required [the employer] to consult specifically with [her] or her direct supervisor,  . . .. , rather than [her] ultimate supervisor,  . . . . Neither the ADA nor Title VII contains a statutory reference to a required interactive process, but the regulations implementing the ADA state that “[t]o determine the appropriate reasonable [disability] accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” . . . Title VII’s regulations contain no similar reference to an interactive process. [The plaintiff] does not ask us to determine whether the ADA’s regulatory interactive-process requirement applies to religious accommodation claims under Title VII. But even if we assume that such a requirement applied, [the employer] would satisfy it, particularly as defined by regulatory guidance specific to Title VII.

The Equal Employment Opportunity Commission (EEOC) publishes a nonbinding compliance guide for employers covered by Title VII which provides that, “[a]lthough an employer is not required by Title VII to conduct a discussion with an employee before making a determination on an accommodation request, as a practical matter it can be important to do so.” . . . The manual continues, “[o]nce the employer becomes aware of the employee’s religious conflict, the employer should obtain promptly whatever additional information is needed to determine whether a reasonable accommodation is available without posing an undue hardship on the operation of the employer’s business.” Id. Importantly, the EEOC concludes that “[f]ailure to confer with the employee is not an independent violation of Title VII. But as a practical matter, such failure can have adverse legal consequences.”

 . . ..

 . . . [The employer] submitted undisputed evidence that it developed and implemented a systematic process for considering requests for religious accommodation, including by “obtain[ing] promptly whatever additional information [was] needed to determine whether a reasonable accommodation [was] available.” . . . [The plaintiff’s] request provided ample information about her religious beliefs regarding the vaccine.  . . [The employer] presented evidence that it obtained and developed information about the risk of COVID exposure in the context of its mission of treating vulnerable juvenile patients,  . . . as well as evidence that [it] obtained information about [her] essential duties and whether her job could be performed remotely, . ..

Even under the ADA, an employer’s failure to engage in an interactive process “is actionable only if it prevents identification of an appropriate accommodation for a qualified individual.”  . . . . “In other words, if the employee fails to create a genuine dispute of material fact that a reasonable accommodation would have allowed her to perform the essential functions of her job, she cannot survive summary judgment on an interactive-process claim.”  . . .  As we hold below, [she] has not “present[ed] evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation.”

[The plaintiff] argues that [the employer] should be required to present evidence that it considered various alternative accommodations proposed by [her] after the fact, and she asserts that [it] failed to engage in a good-faith interactive process because “[t]he only accommodation it ever considered . . . was that all the job duties of the [religious objector] had to be able to be performed off campus.”  . . .  But even under the ADA’s explicit interactive-process requirement, “. . . [an] employer has the burden of showing how [a proposed] accommodation would cause an undue hardship, but the employer is not required to propose a counter accommodation in order to participate in the interactive process in good faith.”  . . . . And we have held in other Title VII contexts that “[i]n deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.”  . . .  

Ultimately, [the employer] presented evidence that, because unvaccinated people posed a safety risk to its vulnerable and unable-to-be-vaccinated juvenile patient population, the presence of any unvaccinated staff on campus would be an undue hardship in the context of St. Jude’s core business and mission.  . . .  [She] has submitted no contrary evidence showing that it would be safe for unvaccinated people to be on campus. In fact, she expressly disclaims any “challenge[] [to] the legitimacy of [the employer] to implement a mandatory COVID-19 vaccine policy.”

We thus cannot say that, as a matter of law, [it] violated an implicit interactive-process duty under Title VII (as yet unrecognized in this circuit). [It] has presented evidence of a thorough information-gathering process with input from [the plaintiff] herself. And the EEOC is clear that Title VII contains no such hard and fast requirement of an interactive process. As discussed below, [she] has not provided legal authority to support a contrary conclusion or sufficient factual evidence to allow a reasonable jury to find that [it] could have accommodated Kizer without undue hardship.

To show that it would be an undue hardship to accommodate her request,

The employer must thus show that “the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” meaning that the statutory requirement of “‘undue hardship’ is [met] when a burden is substantial in the overall context of an employer’s business.”

 . . . .

[The employer’s] evidence indicates that, contrary to [the plaintiff’s] suggestion, it would be less than a full year before her in-person duties kicked in.  . .. It thus presented evidence that in-person, “at the elbow” shadowing was an essential function of [her] job not easily “swapped” with another employee.  . . .  And because [she] could not be safely on campus while unvaccinated, she could not be accommodated without undue hardship.

[The employer’s] evidence also revealed that [her] other proposed accommodations would create a substantial burden in the overall context of its business, and thus an undue hardship. [It] submitted evidence that it maintained no 100% remote positions; even [her] out-of-state colleagues were required to come to campus on a regular basis.  . . . Because transferring [her] to an alternate position that could be performed 100% remotely would require [it] first to identify a new position for which [she] was qualified and then to determine anew whether that position could be modified to accommodate her, such a transfer would not alleviate the undue hardship.   . . . And [it] submitted evidence that it developed a thorough and systematic process for considering requests for accommodations,  . . .  that several dozen employees had requested religious accommodations, and that, unlike [her], the small number who were ultimately accommodated already occupied positions that could be modified to be 100% remote,  . . . . The district court thus correctly found that [it] evidence demonstrated that it would be “a substantial burden in the overall context of [its] business,” to identify and modify new positions for religious objectors, “especially considering the number of people seeking accommodation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

August Brings More Decisions Relating to COVID Fallout.

Courts have continued this month to issue decisions relating to fallout from the COVID pandemic.  In one, the Sixth Circuit reversed an employer’s summary judgment on a Title VII religious discrimination claim alleging that the plaintiff had been fired for not conforming to the employer’s religious beliefs which were hostile to, among other things, his social distancing during the pandemic.  Amos v. LAMPO Group, LLC, No. 24-5011 (6^th Cir. Aug 6, 2024).  In another, the Sixth Circuit affirmed the continuation of a state law lawsuit where the plaintiff had been fired for refusing the COVID vaccine and rejected the employer’s argument that it was immune as a federal contractor because the government’s vaccine mandate was unlawful.  Riggs v. UCOR, LLC, No. 23-6116 (6^th Cir. Aug. 2, 2024).    Finally, the Ohio Supreme Court held that civil service employees were permitted to appeal whether their COVID furlough was a layoff governed by seniority rules.  Harmon v. Cincinnati, No. 2024-Ohio-2889.  “Common pleas court [was] not divested of jurisdiction to hear city employees’ administrative appeal regarding whether separation from employment under temporary emergency-leave program implemented in response to COVID-19 pandemic constituted a layoff.” The Court found that the bargaining agreement permitted civil service appeals and the civil service commission’s failure to conduct an evidentiary hearing when it should have done so did not destroy jurisdiction or render it a non-quasi-judicial matter.

In Amos, the plaintiff alleged that the defendant employer’s policy “was that prayer was the “exclusive way to prevent COVID infection,” and that anything else showed a “weakness of spirit” and was “against the will of God.”  . . . .  Employees that did take precautionary measures were “mocked and derided.” He also alleged that he “was criticized, specifically, for social distancing and wearing a mask.”  He followed “his own deeply held religious beliefs, including the “golden rule” of doing no harm to others and promoting the safety of his own family.”  Ultimately, he alleged that he was fired in July 2020 for “lack of humility” and because [he] “was not a good fit because he ‘would stand off to the side.”  He claimed “that his termination was based on his failure to submit to Lampo’s religious practices and his expression of his own religious beliefs with regard to COVID measures.”

While most religious discrimination claims are based on the employer’s failure to accommodate an employee’s beliefs, it is also true that religious nonconformity is covered because “Title VII “preclude[s] employers from discriminating against an employee because . . . the employee fails to comply with the employer’s religion.”

As with all other types of religious-discrimination claims, the employer is accused of discriminating against the employee on the basis of religion. Here, however, it is the employer’s religion that is the focus. But that doesn’t make the discrimination “reverse.” The employer is still the one allegedly doing the discriminating. The only difference is the alleged motivation—who holds the relevant religious beliefs. If anything, “reverse” might suggest—strangely—that it is the employee doing the discriminating. Accordingly, we will refer to this claim as one for “religious nonconformity.”

The trial court indicated that the plaintiff did not sufficiently allege that the employer failed to accommodate his own religious beliefs and dismissed his noncomformity claims as possibly unrelated to any particular religious belief and based simply on disdain.  The Court, however, found that he had sufficiently alleged a non-conformity claim.  He “provides sufficient facts to support a claim that [the employer] discriminated against him because he did not share [its] religious convictions, and so has met his burden.”

Moreover, the Court also concluded that he had sufficiently alleged that the employer had failed to reasonably accommodate his own religious beliefs.   He   “just need[s] to plausibly allege that [he was] denied a religious accommodation and treated differently because of [his] religion.” In particular, he alleged that the employer

violated Title VII . . . by refusing to respect and/or accommodate Plaintiff’s strongly held religious belief that ‘God helps those that help themselves,’” that he has “a deep religious devotion . . . to follow the ‘golden rule’ to do no harm to others,” and that “[the employer] terminated [him] for taking scientifically prescribed precautions, as required by his sincerely held religious beliefs.” . . . . In short, [he] pleads that his deeply held religious beliefs required him to take COVID precautions to avoid inflicting injury on others, as well as to protect his family—and that [the employer] did not allow him to do so and ultimately terminated him. This is a plausible claim, supported by specific factual allegations . . .

Finally, the Court rejected a distinction between religious beliefs and religious conduct.

Title VII defines “religion” as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate . . . [the] religious observance or practice without undue hardship on the conduct of the employer's business.”  . . . .  And the Supreme Court has explicitly denied attempts to create a distinction between religious belief and conduct in the Title VII context. . . . . Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.”

In Riggs, the employer was a federal contractor who was required by federal regulation to maintain a safe workplace.  Prior to the government requiring contractors and employers to mandate COVIC vaccines, the employer implemented such a policy.  The Court enjoined the government’s mandate on government contractors, but not OSHA’s similar requirement on employers. The plaintiff’s request for a religious accommodation was denied by the employer and she was fired in January 2022 for refusing to be vaccinated.  She filed suit under a state law that prohibited the termination of employees who refused to get vaccinated.  The employer claimed that it was immune from such suit because it was a federal contractor which was required to mandate the vaccination.

Federal contractors may assert derivative immunity as a defense where (1) the government “directed” the contractor to take the action for which the plaintiff seeks to hold it liable, and (2) the government’s direction was legally valid, meaning that federal law authorized the government to issue that directive.  

In this case, the employer could not assert that the government’s direction was legally valid.  The Court had already enjoined the contractor mandate and the Supreme Court later struck down the OSHA mandate.   Further, the employer had implemented its policy before either government mandate. “A contractual provision granting UCOR the discretion to choose which measures it felt were “reasonable” to protect the health of its employees does not amount to a command from the government that UCOR implement a Covid-vaccination policy.”

Finally, in Harmon, the employees challenged the City’s Temporary Emergency Leave policy, which was implemented because of the (correctly) anticipated reduction in tax revenues and increased expenses being caused by the COVID pandemic and shutdown.  The employees alleged that it violated the City’s Civil Service rules governing layoffs.  After appearing before the City Civil Service Commission, the Commission ruled that the TEL was not a layoff and that the employees were not entitled to an evidentiary hearing as to whether the TEL was a layoff.  The employees appealed and the court reversed.  The City then appealed, arguing that the employees’ claims should be submitted to mandatory arbitration under their collective bargaining agreement and the Commission is entitled to interpret its own rules, but the appellate court affirmed.  The Supreme Court likewise affirmed.

The Court rejected the argument that the appeal was preempted by the CBA because it explicitly permitted employees to appeal layoffs to the Commission.  Arbitration was not mandatory in such cases.

The City also argued that only Commission decisions which result from quasi-judicial proceedings are appealable and a mere “appearance” before the Commission does not satisfy that requirement. “A quasi-judicial proceeding is a proceeding that requires notice, a hearing, and the opportunity to introduce evidence.”  The Court found that this is a question of law:

“Whether there is an adjudication depends not upon what the administrative agency actually did, but rather upon what the administrative agency should have done. Where the administrative agency should have given notice, conducted a hearing and afforded the parties an opportunity to be heard and to introduce evidence, the order is the result of an adjudication even if the administrative agency fails to afford such notice and hearing.”

 . . . .

Just as it did below, the city’s arguments here rest on the fact that the commission determined that a full hearing was unnecessary because, in its view, the TEL program was not a layoff. We conclude that the commission exercised its discretion in deciding that the program was not a layoff, rendering the appearance a quasi-judicial proceeding.  . . . . . And while the commission did not follow the requirements under Cincinnati Civil Service R. 17 for conducting a hearing, it was required to do so.

 . . . . Because there was some doubt regarding whether the program was a layoff, the commission should have proceeded with a hearing to allow the parties to argue their positions. As the First District noted, “[t]he commission may not abandon its own rules and sua sponte decide that the leave under the TEL program was not a layoff prior to holding a hearing on that issue.” 2023-Ohio-788 at ¶ 19. If the commission had conducted a hearing, there would have been no doubt that the common pleas court had jurisdiction over Harmon and Beasley’s appeal, and a hearing would have provided greater insight and detail into the matter for the court to consider in making its decision. Regardless, because the commission’s decision was the result of a quasi-judicial proceeding, the common pleas court had subject-matter jurisdiction to review the decision on administrative appeal and to ultimately remand the matter to the commission for a hearing.

In short, “[t]he commission was required to conduct a hearing on [their] appeals. Since the commission should have conducted a hearing, its failure to do so rendered its decision the result of a quasi-judicial proceeding and [they] were thus permitted to appeal the commission’s decision to the court of common pleas under R.C. 2506.01(A).”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Increases Burden for Employers to Accommodate Religious Practices and Raises Questions About Affirmative Action

This morning, as the Court nears the end of its term, a unanimous Supreme Court “clarified” the 1977 Hardison “de minimis” standard in religious accommodation cases and, instead, imposed a more onerous standard on employers to accommodate the religious beliefs and practices of their employees unless it imposes a substantial burden on the business.  Groff v. DeJoy, No. 22-174 (6-29-23).   In this case, a postal worker requested to not work on Sundays due to his sabbath beliefs.  His request was accommodated until Amazon began offering Sunday delivery and the employer determined that it was an undue hardship to require his co-workers to work overtime to cover Sundays.   The Court held that “’undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”  It also discussed the extent to which the impact of the accommodation on co-workers may be considered: “Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business.” Finally, the Court concluded that other options – such as permitting shift swapping --   must be considered in evaluating the employer’s burden. 

According to the Court, the plaintiff was a rural mail carrier subject to a collective bargaining agreement.  When he was hired, he was not required to work on Sundays.  However, because of Amazon deliveries, the employer and union agreed to start Sunday mail delivery, first using employees hired specifically for weekend deliveries, then by using volunteers and then by a mandatory rotation among regular employees, like the plaintiff.  When the plaintiff refused to work on Sundays, he received progressive discipline and his shifts were covered by other employees, including the postmaster (who otherwise never delivers mail).  He eventually resigned, believing that he was about to be fired.  The lowers courts ruled in favor of the employer, noting the burden and disruption to his coworkers and the employer.

Title VII initially only prohibited discrimination "because of" religion.  In 1972, Title VII was amended to require employers to accommodate employees’ religious practices unless doing so would constitute an undue hardship on the employer’s business (after courts had rejected accommodation of Sabbath observances as unconstitutional):

“[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

   In Hardison, the Court focused whether the employer’s collectively bargained seniority system required a junior employee to be granted preferential shifts as a religious accommodation.  After concluding that Title VII did not affect collectively bargained seniority systems, the Court noted that Title VII – even as amended -  did not require accommodations that were substantial or more than de minimis. 

In this case, the Court adopted a commonsense understanding of an employer’s obligations.

In common parlance, a “hardship” is, at a minimum, “something hard to bear.” . . . . But under any definition, a hardship is more severe than a mere burden. So even if Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to rise to the level of hardship, and adding the modifier “undue” means that the requisite burden, privation, or adversity must rise to an “excessive” or “unjustifiable” level.

Refusing to adopt the ADA test, the Court observed: “it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”

What matters more than a favored synonym for “undue hardship” (which is the actual text) is that courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.”

With respect to the impact accommodations may have on co-workers, the Court agreed that this could be a consideration, except to the extent that the co-workers harbor a religious (or anti-religious) bias:

both parties agree that the language of Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business. . . . As the Solicitor General put it, not all “impacts on coworkers . . . are relevant,” but only “coworker impacts” that go on to “affec[t] the conduct of the business.” . . .  So an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business, but a court cannot stop its analysis without examining whether that further logical step is shown in a particular case.

On this point, the Solicitor General took pains to clarify that some evidence that occasionally is used to show “impacts” on coworkers is “off the table” for consideration.  . . . . Specifically, a coworker’s dislike of “religious practice and expression in the workplace” or “the mere fact [of] an accommodation” is not “cognizable to factor into the undue hardship inquiry.”  . . .  To the extent that this was not previously clear, we agree.  An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.”

Finally, the Court found that it is the practice of religion that must be accommodated, not merely the particular request.  In that respect, the parties may have to consider other options.  In this case, that would include not merely requiring other employees to work overtime, but to also permit shift-swapping.

Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. . . . This distinction matters. Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.

The case was remanded for the trial court to reconsider its opinion in light of the Court’s new guidance.

In other cases, a divided (6-3) Supreme Court struck down the student affirmative action practices of Harvard and North Carolina under Title VI of the Civil Rights Act as violations of the Equal Protection Clause under a strict scrutiny analysis.   Students for Fair Admissions, Inc. v. Harvard, No. 20-1199 (6/29/23).   “Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.”  The Court reached this conclusion after reviewing the long history of affirmative action decisions and after finding that the categories the universities considered to be too broad (not distinguishing between East and South Asians, or Hispanics, or even categorizing students of Middle Eastern descent), their goals too vague and that they disadvantaged Asian students.  Finally, it found the programs engaged in negative stereotyping:

Respondents admissions programs are infirm for a second reason as well: They require stereotyping—the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.”

Earlier, a divided (5-4) Court also held litigation must be stayed pending appeals of denials of motions to compel arbitration.  Coinbase, Inc. v. Bielski, No. 22-105 (6/23/23). 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Updates Its Religious Accommodation Discussion on COVID-19 Guidance

On March 1, the EEOC updated its COVID Q&A Guidance concerning religious accommodations of mandatory vaccination requirements.  No explanation was given for the update.  The new guidance follows

L. Vaccinations – Title VII Religious Objections to COVID-19 Vaccine Requirements

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on religion. This includes a right for job applicants and employees to request an exception, called a religious or reasonable accommodation, from an employer requirement that conflicts with their sincerely held religious beliefs, practices, or observances. If an employer shows that it cannot reasonably accommodate an employee’s religious beliefs, practices, or observances without undue hardship on its operations, the employer is not required to grant the accommodation. See generally Section 12: Religious Discrimination; EEOC Guidelines on Discrimination Because of Religion. Although other laws, such as the Religious Freedom Restoration Act, also may protect religious freedom in some circumstances, this technical assistance only describes employment rights and obligations under Title VII.

L.1. Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII? (3/1/22)

Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances. Under Title VII, this is called a request for a “religious accommodation” or a “reasonable accommodation.”

When making the request, employees do not need to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they need to explain the conflict and the religious basis for it.

The same principles apply if employees have a religious conflict with getting a particular vaccine and wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to them. See Introduction to Section K, above.

As a best practice, an employer should provide employees and applicants with information about whom to contact and the proper procedures for requesting a religious accommodation.

As an example, here is how EEOC designed its own form for its own workplace. Although the EEOC’s internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic. (Note: Individuals not employed by the EEOC should not submit this form to the EEOC to request a religious accommodation.)

L.2. Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information? (3/1/22)

Generally, under Title VII, an employer should proceed on the assumption that a request for religious accommodation is based on sincerely held religious beliefs, practices, or observances. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice, or observance risks losing any subsequent claim that the employer improperly denied an accommodation. See generally Section 12-IV.A.2: Religious Discrimination.

The definition of “religion” under Title VII protects both traditional and nontraditional religious beliefs, practices, or observances, including those that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, practices, or observances, employees may be asked to explain the religious nature of their belief, practice, or observance and should not assume that the employer already knows or understands it.

Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching. See discussion of “sincerity” below; see generally Section 12-I.A.1: Religious Discrimination (definition of religion).

The sincerity of an employee’s stated religious beliefs, practices, or observances is usually not in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Section 12-I.A.2: Religious Discrimination (credibility and sincerity). Factors that—either alone or in combination—might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

If an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

L.3. How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation? (3/1/22)

Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment. For suggestions about types of reasonable accommodations for unvaccinated employees, see K.2, K.6, and K.12, above. In many circumstances, it may be possible to accommodate those seeking reasonable accommodations for their religious beliefs, practices, or observances without imposing an undue hardship.

If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief, practice, or observance without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation. 42 U.S.C. § 2000e(j). The Supreme Court has held that requiring an employer to bear more than a “de minimis,” or a minimal, cost to accommodate an employee’s religious belief is an undue hardship. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business—including, in this instance, the risk of the spread of COVID-19 to other employees or to the public.

Courts have found Title VII undue hardship where, for example, the religious accommodation would violate federal law, impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work. For a more detailed discussion, see Section 12-IV.B: Religious Discrimination (discussing undue hardship)..

An employer will need to assess undue hardship by considering the particular facts of each situation and will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve. An employer cannot rely on speculative or hypothetical hardship when faced with an employee’s religious objection but, rather, should rely on objective information. Certain common and relevant considerations during the COVID-19 pandemic include, for example, whether the employee requesting a religious accommodation to a COVID-19 vaccination requirement works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals). Another relevant consideration is the number of employees who are seeking a similar accommodation, i.e., the cumulative cost or burden on the employer. See K.12 for additional considerations relevant to the undue hardship analysis.

L.4. If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, practices, or observances, does it have to grant all such requests? (3/1/22)

No. The determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context. When an employer is assessing whether exempting employees from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employees’ duties, the location in which the employees must or can perform their duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation. A mere assumption that many more employees might seek a religious accommodation—or the same accommodation—to the vaccination requirement in the future is not evidence of undue hardship, but the employer may consider the cumulative cost or burden of granting accommodations to other employees.

L.5. Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII? (3/1/22)

An employer should consider all possible alternatives to determine whether exempting an employee from a vaccination requirement would impose an undue hardship. See, e.g., K.2. Employers may rely on CDC recommendations when deciding whether an effective accommodation is available that would not pose an undue hardship.

L.6. If an employer grants a religious accommodation to an employee, can the employer later reconsider it? (3/1/22)

The obligation to provide religious accommodations absent undue hardship is a continuing obligation that allows for changing circumstances. Employees’ sincerely held religious beliefs, practices, or observances may evolve or change over time and may result in requests for additional or different religious accommodations. Similarly, an employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances. Employers must consider whether there are alternative accommodations that would not impose an undue hardship. As a best practice, an employer should discuss with the employee any concerns it has about continuing a religious accommodation before revoking it.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney. 

Sixth Circuit Rejects Religious Objections to Sexual Stereotyping Claims

Earlier this month, the Sixth Circuit rejected an employer’s religious objections to complying with Title VII’s prohibitions against discrimination on the basis of sexual stereotypes.  EEOC v. Harris Funeral Homes, Inc., No. 16-2424.  In that case, the Court unsurprisingly (based on its prior opinions) held that it violated Title VII to terminate an employee who was preparing for sexual reassignment surgery by dressing and presenting as the opposite gender. “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex.”   The Court rejected the employer’s argument that its gender-specific dress code requirements did not violate Title VII.  While not prohibiting outright sex-specific dress codes, the Court noted that the employer could not terminate the plaintiff for refusing to confirm to its “notion of her sex.”  The Court refused the invitation to overrule prior precedent and hold that Title VII covered sexual orientation discrimination.  Nonetheless, the Court ruled that the Religious Freedom Restoration Act did not exempt the employer from Title VII in this situation.  In particular, rejecting the employer’s argument that its grieving patrons would object to the plaintiff, the Court held that “a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.”  The Court also held that toleration of gender identity is not the same as supporting it and mandating toleration is not a substantial burden on a religious practice.   Finally, the Court held that the EEOC had a compelling government interest in enforcing Title VII.

According to the Court’s opinion, the plaintiff had been born male and was hired as a funeral director in 2008.  The plaintiff was fired  in 2013 shortly after informing the defendant employer that he intended upon  returning from his upcoming vacation to transition to a female and begin presenting (and dressing) as a female at work for a year  before surgery.  The owner later testified that gender is a gift from God, that it would violate God’s natural order to change birth gender, and he did not want to be complicit in providing clothing or authorizing a man to dress as a woman while representing his company.   He explained to the plaintiff that the public would not accept his transition to a female.  During the subsequent EEOC investigation, the agency learned that the employer provided its male public facing employees with clothing that conformed to its dress code, but did not provide similar clothing or even an allowance to its public facing female employees.  It brought suit against the employer on behalf of the terminated employee and to challenge the clothing allowance policy.  Although noting that the plaintiff had been fired for failing to conform to gender stereotypes, the trial court granted summary judgment to the employer on both claims.

The employer immediately modified its clothing allowance policy when the lawsuit was filed to provide female employees with a comparable clothing stipend.  It had not had a female funeral director since the owner’s grandmother retired in the 1950’s and only one (unqualified) female applicant had applied for a director position since that time.  The plaintiff’s charge had not raised the clothing allowance issue in her Charge of Discrimination.  Nonetheless, the Court found that the EEOC could still bring a legal challenge to the policy in its lawsuit.

The employer argued that Title VII permits employers to utilize common gender specific dress codes.  Most employers have differing expectations for men and women based on pants, skirts, hair length, jewelry, etc.  However, the Court rejected the argument that Title VII permits gender specific dress codes and noted that the employer’s legal authority pre-dated the Supreme Court’s plurality Price-Waterhouse decision in 1989 which prohibited sex-based stereotyping (when that plaintiff had been passed over for partnership in part for not wearing make up like women are supposed to do).

We are not considering, in this case, whether the Funeral Home violated Title VII by requiring men to wear pant suits and women to wear skirt suits.  Our question is instead whether the Funeral Home could legally terminate Stephens, notwithstanding that she fully intended to comply with the company’s sex-specific dress code, simply because she refused to conform to the Funeral Home’s notion of her sex.

                 . . . .

In short, the Funeral Home’s sex-specific dress code does not preclude liability under Title VII.  Even if the Funeral Home’s dress code does not itself violate Title VII—an issue that is not before this court—the Funeral Home may not rely on its policy to combat the charge that it engaged in improper sex stereotyping when it fired Stephens for wishing to appear or behave in a manner that contradicts the Funeral Home’s perception of how she should appear or behave based on her sex.

The Court also rejected the defendant’s argument that “sex” under Title VII was a binary concept (“which classification arises in a person based on their chromosomally driven physiology and reproductive function”) that did not include transitioning from one to another. The defendant characterized transgender status as a “’a person’s self-assigned ‘gender identity’ rather than a person’s sex.”  “We also hold that discrimination on the basis of transgender and transitioning status violates Title VII.”

First, it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.  The Seventh Circuit’s method of “isolat[ing] the significance of the plaintiff’s sex to the employer’s decision” to determine whether Title VII has been triggered illustrates this point. . . . In Hively, the Seventh Circuit determined that Title VII prohibits discrimination on the basis of sexual orientation—a different question than the issue before this court—by asking whether the plaintiff, a self-described lesbian, would have been fired “if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same.”  Id.  If the answer to that question is no, then the plaintiff has stated a “paradigmatic sex discrimination” claim.  See id.  Here, we ask whether Stephens would have been fired if Stephens had been a woman who sought to comply with the women’s dress code.  The answer quite obviously is no.  This, in and of itself, confirms that Stephens’s sex impermissibly affected Rost’s decision to fire Stephens.

                 . . . .

Thus, an employer cannot discriminate on the basis of transgender status without imposing its stereotypical notions of how sexual organs and gender identity ought to align.  There is no way to disaggregate discrimination on the basis of transgender status from discrimination on the basis of gender non-conformity, and we see no reason to try.

While Congressional intent in drafting Title VII may not have included this interpretation of Title VII, “to anticipate that Title VII would cover transgender status is of little interpretive value, because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”  It similarly rejected the argument based on drafting differences that statutes “such as the Violence Against Women Act, expressly prohibit discrimination on the basis of “gender identity,” while Title VII does not.”

 The Court also rejected the argument that because both men and women can be transgendered, it cannot constitute discrimination to treat transgendered individuals the same.

Because an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex, discrimination on the basis of transgender status necessarily entails discrimination on the basis of sex—no matter what sex the employee was born or wishes to be.  By the same token, an employer need not discriminate based on a trait common to all men or women to violate Title VII.  After all, a subset of both women and men decline to wear dresses or makeup, but discrimination against any woman on this basis would constitute sex discrimination under Price Waterhouse.

While the employer’s owner is religious, the company is not affiliated with any religious organization, serves patrons of various faiths and hires employees of various (or even no) faiths.  While several amici had argued that the defendant was entitled to Title VII’s ministerial exception, the defendant and the Court agreed that it was not applicable in this situation.

The Court rejected the employer’s RFRA defense on the grounds that complying with Title VII was not a substantial burden on his religious exercise in administering to mourners and that enforcing Title VII in this case is the least restrictive means of furthering a compelling government interest.  The Court opted to treat religious objections in this situation as though they were similar to objections based on working with women or people of a different race.  It also concluded that he was not required to provide clothing to any of his employees and could eliminate that benefit on a non-discriminatory basis.  The employer “is not being forced to choose between providing [the plaintiff] with clothing or else leaving the business; this is a predicament of [his] own making.”

The Funeral Home’s first alleged burden—that [the plaintiff] will present a distraction that will obstruct [his] ability to serve grieving families—is premised on presumed biases. . . . The factual premises underlying this purported burden are wholly unsupported in the record.  [The owner] testified that he has never seen [the plaintiff] in anything other than a suit and tie and does not know how [the plaintiff] would have looked when presenting as a woman. . . . [His] assertion that he believes his clients would be disturbed by [her] appearance during and after her transition to the point that their healing from their loved ones’ deaths would be hindered. . . at the very least raises a material question of fact as to whether his clients would actually be distracted, which cannot be resolved in the Funeral Home’s favor at the summary-judgment stage. . . .

But more to the point, we hold as a matter of law that a religious claimant cannot rely on customers’ presumed biases to establish a substantial burden under RFRA.

                 . . . .

 . . .We could agree that courts should not credit customers’ prejudicial notions of what men and women can do when considering whether sex constitutes a “bona fide occupational qualification” for a given position while nonetheless recognizing that those same prejudices have practical effects that would substantially burden [his] religious practice (i.e., the operation of his business) in this case.  But the Ninth Circuit rejected similar reasoning in Fernandez, and we reject it here.

As for the burden on his religious practice by being required to employ the plaintiff as a public representative of his company, “simply permitting [the plaintiff] to wear attire that reflects a conception of gender that is at odds with [the owner’s] religious beliefs is not a substantial burden under RFRA. . . . . tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.”  (emphasis added).

 The Court noted that it had required religious organizations to comply with the ObamaCare’s opt-out provisions on the grounds that they were not a substantial burden on their religious practices.

We view the Funeral Home’s compliance with antidiscrimination laws in much the same light.  Rost may sincerely believe that, by retaining Stephens as an employee, he is supporting and endorsing Stephens’s views regarding the mutability of sex.  But as a matter of law, bare compliance with Title VII—without actually assisting or facilitating Stephens’s transition efforts—does not amount to an endorsement of Stephens’s views. Similarly, here, requiring the Funeral Home to refrain from firing an employee with different religious views from Rost does not, as a matter of law, mean that Rost is endorsing or supporting those views. . . . .  Indeed, Rost’s own behavior suggests that he sees the difference between employment and endorsement, as he employs individuals of any or no faith, “permits employees to wear Jewish head coverings for Jewish services,” and “even testified that he is not endorsing his employee’s religious beliefs by employing them.”

At bottom, the fact that Rost sincerely believes that he is being compelled to make such an endorsement does not make it so.

The Court also found that the EEOC had a compelling government interest in preventing workplace discrimination.  “The Supreme Court has already determined that RFRA does not, in fact, “effectuate . . . the First Amendment’s guarantee of free exercise,” id., because it sweeps more broadly than the Constitution demands. . . . We therefore decline to hoist automatically Rost’s religious interests above other compelling governmental concerns.”

The Court also found that enforcing Title VII was the least restrictive means.  “Where an alternative option exists that furthers the government’s interest “equally well,”  . . ., the government “must use it.”    Indeed, “[t]he district court found that requiring the Funeral Home to adopt a gender-neutral dress code would constitute a less restrictive alternative to enforcing Title VII in this case, and granted the Funeral Home summary judgment on this ground.”

The district court’s suggestion, although appealing in its tidiness, is tenable only if we excise from the case evidence of sex stereotyping in areas other than attire.  Though Rost does repeatedly say that he terminated Stephens because she “wanted to dress as a woman” and “would no longer dress as a man,”  . . .the record also contains uncontroverted evidence that Rost’s reasons for terminating Stephens extended to other aspects of Stephens’s intended presentation.  For instance, Rost stated that he fired Stephens because Stephens “was no longer going to represent himself as a man,”  . . ., and Rost insisted that Stephens presenting as a female would disrupt clients’ healing process because female clients would have to “share a bathroom with a man dressed up as a woman,”  . . .  The record thus compels the finding that Rost’s concerns extended beyond Stephens’s attire and reached Stephens’s appearance and behavior more generally.

  . . .

The Funeral Home’s proposed alternative—to “permit businesses to allow the enforcement of sex-specific dress codes for employees who are public-facing representatives of their employer, so long as the dress code imposes equal burdens on the sexes and does not affect employee dress outside of work,”  . . .is equally flawed. . . . the EEOC does have a compelling interest in ensuring that the Funeral Home does not discriminate against its employees on the basis of their sex.  The Funeral Home’s proposed alternative sidelines this interest entirely.

 . . .
To start, the Supreme Court has previously acknowledged that “there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA.” . . .

The Court seemingly recognized Title VII’s ability to override RFRA in Hobby Lobby, as the majority opinion stated that its decision should not be read as providing a “shield” to those who seek to “cloak[] as religious practice” their efforts to engage in “discrimination in hiring, for example on the basis of race.”   . . .

While the Hobby Lobby Court permitted a RFRA exemption to ObamaCare’s contraception mandate, ObamaCare’s statute already provided an exemption mechanism, unlike Title VII’s prohibition on sex discrimination in this case.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Litigation Snares Two Nearby Employers

Last week, the EEOC announced a settlement and one court verdict involving two different nearby employers.  One involved an employee’s religious objections to having his hand biometrically scanned as part of a new payroll system and an award against that employer for more than $585,000 in compensatory damages, lost wages and benefits.  The other involved an $80,000 settlement of an EEOC lawsuit alleging a racially hostile work environment by a Chagrin Falls, Ohio employer. 

In the first case, the EEOC brought suit against a coal company and its parent alleging that a long-time employee had been forced to resign because the employer refused to accommodate his religious beliefs.  In particular, the employee believed that the employer’s new biometric hand scanners – which had been implemented to track employee attendance – constituted the mark of the beast (i.e., the antichrist).  He objected to being subjected to the technology and notified the employer on a number of occasions.  The employer refused to accommodate his religious beliefs and informed him that he would be disciplined and terminated if he refused to scan his hand.    The EEOC alleged that the employee was forced to retire due to the employer’s refusal to accommodate his religious beliefs.

In January, a federal court jury in West Virginia found that the employer violated the employee’s religious beliefs and awarded the employee $150,000 in compensatory damages.  Last month, the federal judge awarded an additional $436,860 in back pay, and front pay.  The Court also enjoined the employer for three years from denying religious objections to the biometric hand scanner and required them to be trained about religious accommodations.

The other case involves allegations of offensive language by the general manager towards African-American employees and less favorable treatment (such as less frequent breaks than white employees).    The EEOC complaint also alleged that an African American supervisor was subjected to a racially and sexually hostile work environment and retaliation when she opposed the mistreatment.  The settlement provides $44,500 to the supervisor and $35,000 to the remaining employees.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Issues New Technical Assistance On Religious Garb and Grooming in the Workplace

Today, the EEOC issued a new publication concerning the duty of employers to reasonably accommodate employees’ religious grooming and dressing practices in the workplace.   This can include what employees wear (a cross, a turban, a beard, etc.) and what they object to wearing (short shorts, religious items).  Employees’ sincerely religious beliefs must be accommodated except when the accommodation creates more than a de minimis burden on the employer (which is a lesser standard than under the ADA).  As a practical matter, this means that grooming practices must be accommodated unless it creates a safety issue.  The beliefs to be accommodated can also be non-beliefs (i.e., atheists).  According to the EEOC, the religious belief does not have to be an organized religion and can be simply ethical beliefs.   Employers are particularly admonished to not segregate employees because of their religious practices or discriminate against them due to customer or co-worker preferences.  

The EEOC’s new publication provides examples of legal issues that arise in this area and is written in a Q&A format.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Divided Sixth Circuit Reverses Employer’s Summary Judgment on Religious Accommodation of Sabbath Observance

Yesterday, a divided panel of judges from the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on a religious discrimination claim. Crider v. Univ. of Tennessee, Knoxville, No. 11-5511 (6th Cir. July 23, 2012). In that case, the overseas education department required one of the three Programs Abroad Coordinators to always (i.e., 24-7) carry the emergency cell phone in case a student experienced an emergency overseas. This responsibility was rotated among the Coordinators and prevented them from leaving town (and ready access to student records) during their rotation. Four days after being hired as a Coordinator, the plaintiff informed her manager that she was a Seventh Day Adventist and could not carry the emergency phones from sundown Friday to sundown Saturday. The other two Coordinators refused to voluntarily assume permanent responsibility to carry the emergency phone every other weekend because it prevented them from leaving town for pleasure or family reasons. One of them even threatened to resign. The University did not find any of the other proposed accommodations to be reasonable and ultimately terminated the plaintiff’s employment because she refused to perform one of the essential functions of her job. The Court’s majority found that the University was not entitled to respect the “grumblings” of the other Coordinators and should have given preference to the plaintiff’s religious objections over the co-workers’ rights to not share those beliefs.  It limited the Supreme Court’s Hardison decision to a collectively bargained seniority system. “Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation “without undue hardship on the conduct of the employer’s business.” (emphasis in original).”

The plaintiff argued that the University rejected her proposal of a voluntary shift exchange and then failed to suggest its own alternative and frustrated her efforts to obtain her co-worker’s cooperation. The University suggested that she agree to carry the emergency pagers on Saturdays when her co-workers were out of town or if an emergency arose.

“The obligation to accommodate includes efforts to accommodate those employees who refuse to work on particular days of the week because of their religious beliefs.” Id. Reasonable accommodations for religious convictions may include unobjectionable shift exchanges, see id. at 1088, or a transfer to another position which preferably does not adversely affect the employee. . .

Offering [the plaintiff] fewer Saturday shifts is not a reasonable accommodation to religious beliefs which prohibit working on Saturdays.

. . .

Aptly stated by the Third Circuit, a Saturday Sabbatarian’s request for every Saturday off of work due to their religious needs is not per se unreasonable and “[t]o interpret Title VIII in this fashion would effectively remove from the statute’s protection all employees who subscribe to religions with strict prohibitions against Sabbath labor.”

The Court rejected the concept that an employer could prove that a requested accommodation imposed an undue hardship based only on the objections of co-workers to working the unfavorable weekend shift. The district court had relied on Hardison in concluding that the University would incur an undue hardship if it were required to force the plaintiff’s co-workers to resume responsibility of carrying the emergency phone every other weekend. “In reaching this determination, the district court emphasized Hardison’s rejection of the notion that an employer may deprive one employee of their shift choice in order to allow another employee to observe their Sabbath” because Title VII protects the co-workers from discrimination based on the plaintiff’s religious needs. In short, Hardison suggests that “reasonable accommodations are not reasonable when they would result in unequal treatment of employees on the basis of religion.” Nonetheless, the Court felt there was a material issue of disputed fact in this case.

This Court has held that “objections and complaints of fellow employees, in and of themselves, do not constitute undue hardship in the conduct of an employer’s business,” noting that “undue hardship is something greater than hardship, and an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.”

. . .

Thus, Hardison does not stand for the proposition that employee dissatisfaction or inconvenience alone creates an undue hardship; rather, it is the effect such dissatisfaction has on the employer’s ability to operate its business that may alleviate the duty to accommodate.

As interpreted by the majority, the Hardison “Court found that requiring TWA to breach the contractual rights of its employees by abandoning the seniority system established by a collective bargaining agreement, or to replace Hardison with employees who required premium wages, went too far and created an undue hardship on TWA.” Title VII itself provided special treatment for seniority systems and the Hardison Court did not want to deprive Hardison’s co-workers of contractually bargained rights. “Requiring TWA to breach provisions of a collective bargaining agreement and risk the union or other employees filing suit is surely more than a de minimis cost.”

The University, like the Fifth Circuit, argued that the plaintiff’s reliance on Draper v. Unites States Pipe and Foundry Co., 527 F.2d 515, 519-520 (6th Cir. 1975) – which required employers to force co-workers to accept unfavorable shifts in order to accommodate a religious belief -- was outdated in that Hardison was decided later in 1977. The majority, however, found it remained good law because Hardison did not explicitly overrule it.

We stop short of holding that an employee requesting religious accommodation can never be treated differently. The very nature of this type of accommodation requires that, where an employer operates its business on Saturdays, a Saturday Sabbatarian’s accommodation will require another employee to work a Saturday shift. Thus, where an employer is able to reasonably accommodate this religious request, it is essentially treating employees differently on the basis of religion as contemplated by the Act.

Moreover, the majority conceded that “[i]t is conceivable that employee morale problems could become so acute that they would constitute undue hardship” and that such discontent can lead to “chaotic personnel problems” which would constitute an undue hardship to accommodate a religious belief. While it observed that the co-worker’s threat to quit could create a “chaotic personnel problem” with only one employee left to carry the emergency phone on Saturdays, it concluded that in this case, the there was insufficient evidence that the employee’s threat was more than mere “grumbling.” (The Court makes no effort to explain what would have been enough proof – such as a written two-week notice of resignation).

Finally, the majority found summary judgment to be inappropriate because the manager had told employees not to do anything differently despite the plaintiff’s request for accommodation.

Even if [the manager] was simply trying to assess the situation before [the co-worker’s] agreed, [the manager’s] words could be construed as instructing [the co-workers] not to accept the shift exchange. Viewing the evidence in the light most favorable to [the plaintiff], we find that she has raised a genuine issue as to whether [the employer] frustrated, inhibited, or impeded her efforts at obtaining such an accommodation.

In contrast, the dissenting judge found that:

“the mere possibility of an adverse impact on co-workers . . . is sufficient to constitute an undue hardship.” Virts v. Consol Freightways Corp., 285 F.3d 508, 520-21 (6th Cir. 2002) (applying Hardison). Further, an employer’s neutral decisions, such as shift scheduling, are protected under Title VII. Id. at 82. This is true even if such decisions result in “discriminatory consequences.” Id. at 82.

The dissent also found that the majority’s decision forces discrimination upon the co-workers based on their lack of similar religious beliefs. The dissent also rejected the argument that the employer’s preference to maintain the status quo while it considered to the accommodation request had interfered with the plaintiff’s request because the co-workers had never agreed to swap shifts with her and was irrelevant to whether the request was unreasonable.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Issues New Guidance on Religious Discrimination and Accommodation in the Workplace.

Noting that the number of religious discrimination charges had more than doubled between 1992 and 2007, yesterday the EEOC issued new compliance guidance to employers about workplace discrimination on the basis of religion. This new guidance involved a new section for the EEOC compliance manual, a Q&A for employers of common issues and a manual of best practices. Among other things, the guidance addresses an employer’s options when an employee proselytizes at work and/or objects to performing a job duty – such as providing birth control – because of religious beliefs. It also addresses potential First Amendment concerns and what constitutes "undue hardship" for purposes of denying a requested accommodation.

“Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers. . . . Religion includes not only traditional religions like “Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. Religious beliefs include theistic beliefs (i.e. those that include a belief in God) as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Some courts have held that Title VII also protect members of the wiccan faith. Nonetheless, “mere personal preferences are not religious beliefs.”

“The prohibition against disparate treatment based on religion also applies to disparate treatment of religious expression in the workplace. For example, if an employer allowed one secretary to display a Bible on her desk at work while telling another secretary in the same workplace to put the Quran on his desk out of view because co-workers “will think you are making a political statement, and with everything going on in the world right now we don’t need that around here,” this would be differential treatment in violation of Title VII.”

Once an employer is on notice that a religious accommodation is needed, Title VII requires the employer “to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Under Title VII, the undue hardship defense to providing religious accommodation requires a showing that the proposed accommodation in a particular case poses a “more than de minimis” cost or burden. Note that this is a lower standard for an employer to meet than undue hardship under the Americans with Disabilities Act (ADA) which is defined in that statute as “significant difficulty or expense.”

For instance, a “government employer may contend that granting a requested religious accommodation would pose an undue hardship because it would constitute government endorsement of religion in violation of the Establishment Clause of the First Amendment.”

“An accommodation would also pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation. Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business. For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work. Whether the proposed accommodation conflicts with another law will also be considered.”

“Although religious accommodations that infringe on co-workers’ ability to perform their duties or subject co-workers to a hostile work environment will generally constitute undue hardship, general disgruntlement, resentment, or jealousy of co-workers will not. Undue hardship requires more than proof that some co-workers complained; a showing of undue hardship based on co-worker interests generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work. If an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations."

“Title VII requires employers to accommodate only those religious beliefs that are religious and “sincerely held,” and that can be accommodated without an undue hardship. Although there is usually no reason to question whether the practice at issue is religious or sincerely held, if the employer has a bona fide doubt about the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for the accommodation. Factors that – either alone or in combination – might undermine an employee’s assertion that he sincerely holds the religious belief at issue include: whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons. However, none of these factors is dispositive. For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held. An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.”

There are a variety of methods to provide reasonable accommodations to its employees, including: changing work schedules, permitting voluntary shift swapping, changing an employee’s job tasks or providing a lateral transfer; making an exception to dress and grooming rules to permit religious clothing or beards, etc.; permitting the use of the work facility for a religious observance (like prayers); accommodating religious objections to the payment of union dues or agency fees through donations to charities; and accommodating prayer, proselytizing, and other forms of religious expression among non-objecting co-workers.

“Some employees may seek to display religious icons or messages at their work stations. Others may seek to proselytize by engaging in one-on-one discussions regarding religious beliefs, distributing literature, or using a particular religious phrase when greeting others. Still others may seek to engage in prayer at their work stations or to use other areas of the workplace for either individual or group prayer or study. In some of these situations, an employee might request accommodation in advance to permit such religious expression. In other situations, the employer will not learn of the situation or be called upon to consider any action unless it receives complaints about the religious expression from either other employees or customers. “

According to the EEOC, “employers should not try to suppress all religious expression in the workplace. Title VII requires that employers accommodate an employee’s sincerely held religious belief in engaging in religious expression in the workplace to the extent that they can do so without undue hardship on the operation of the business. In determining whether permitting an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, relevant considerations may include the effect such expression has on co-workers, customers, or business operations.”

For example, “if an employee’s proselytizing interfered with work, the employer would not have to allow it. Similarly, if an employee complained about proselytizing by a co-worker, the employer can require that the proselytizing to the complaining employee cease. Moreover, if an employee was proselytizing an employer’s customers or clients in a manner that disrupted business, or that could be mistaken as the employer’s own message, the employer would not have to allow it. Where the religiously oriented expression is limited to use of a phrase or greeting, it is more difficult for the employer to demonstrate undue hardship. On the other hand, if the expression is in the manner of individualized, specific proselytizing, an employer is far more likely to be able to demonstrate that it would constitute an undue hardship to accommodate an employee’s religious expression, regardless of the length or nature of the business interaction. An employer can restrict religious expression where it would cause customers or co-workers reasonably to perceive the materials to express the employer’s own message, or where the item or message in question is harassing or otherwise disruptive.”

When an employee objects to a particular job duty or task (such as providing birth control or the “morning after pill” or singing “happy birthday”) on the basis of a religious belief, the employer should consider “appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict. Whether such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a CBA or seniority system. The employee should be accommodated in his or her current position if doing so does not pose an undue hardship. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. “ By way of example, the EEOC described the following situations:

1) “Kim, a server at a restaurant, informed her manager that she would not be able to join other waitresses in singing “Happy Birthday” to customers because she is a Jehovah’s Witness whose religious beliefs do not allow her to celebrate holidays, including birthdays. There were enough servers on duty at any given time to perform this singing without affecting service.” If the manager refuses any accommodation to Kim, she would likely prevail in a Title VII action “because the restaurant could have accommodated her with little or no expense or disruption.”

2) “Neil, a pharmacist, was hired by a large corporation that operates numerous large pharmacies at which more than one pharmacist is on duty during all hours of operation. Neil informed his employer that he refused on religious grounds to participate in distributing contraceptives or answering any customer inquiries about contraceptives. The employer reasonably accommodated Neil by offering to allow Neil to signal to a co-worker who would take over servicing any customer who telephoned, faxed, or came to the pharmacy regarding contraceptives.”

3) Alternatively, if instead, “Neil leaves on hold indefinitely those who call on the phone about a contraceptive rather than transferring their calls, and walks away from in-store customers who seek to fill a contraceptive prescription rather than signaling a co-worker. The employer is not required to accommodate Neil’s request to remain in such a position yet avoid all situations where he might even briefly interact with customers who have requested contraceptives, or to accommodate a disruption of business operations. The employer may discipline or terminate Neil for not meeting legitimate expectations.”

“The employee should be accommodated in his or her current position if doing so does not pose an undue hardship. If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation. For example, if a pharmacist who has a religious objection to dispensing contraceptives can be accommodated without undue hardship by allowing the pharmacist to signal a co-worker to assist customers with such prescriptions, the employer cannot choose instead to accommodate by transferring the pharmacist to a different position. Moreover, if the pharmacist cannot be accommodated within his position, the employer cannot transfer the pharmacist to a position that entails less pay, responsibility, or opportunity for advancement unless a lateral transfer is unavailable or would otherwise pose an undue hardship.

Insomniacs can read the EEOC press release in full at http://www.eeoc.gov/press/7-22-08.html and the other EEOC materials on religious discrimination in full at http://www.eeoc.gov/policy/docs/qanda_religion.html and http://www.eeoc.gov/policy/docs/religion.html and http://www.eeoc.gov/policy/docs/best_practices_religion.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.