Freedom to believe and practice your own religion is a strongly held American value as well as a right recognized by the Equal Employment Opportunity Commission (EEOC) and most state organizations charged with receiving and investigating claims of discrimination. Sometimes, however, an employee’s expression of religious beliefs in the workplace can be disruptive―especially if the employee’s beliefs clash with the beliefs of her coworkers. When does an employer’s attempt to control religious expression become discriminatory? And how does a company reconcile its efforts to promote workplace diversity with an employee’s right to push back against “diversity” he opposes?
Basic protections under the law
The central provisions of Title VII of the Civil Rights Act of 1964 prohibit discrimination in employment based on religion as well as religious harassment and retaliation. To be clear, however, the law is tailored to exempt religious corporations, associations, educational institutions, and societies. As a result, our analysis of workplace discrimination and harassment based on religion in this article doesn’t implicate those organizations.
The protections afforded employees under the law are broad. Not only have courts found a person’s freedom to practice his own religion is protected, but they have also held that the freedom not to practice a religion is a religious belief protected by the antidiscrimination statutes. For instance, the U.S. 9th Circuit Court of Appeal has ruled that Title VII prohibits discrimination based on nonmembership in a particular religious group, which is often referred to as reverse religious discrimination.
Guidance from the EEOC
While Title VII requires you to accommodate an employee’s sincerely held religious belief when he engages in religious expression in the workplace (e.g., proselytizing), you don’t have to allow religious expression if it causes or promotes discrimination against coworkers or imposes an undue hardship on the operation of the business. Balancing those interests proves difficult in application, however.
You can reduce the chance that employees will engage in conduct that rises to the level of unlawful harassment if you implement an antiharassment policy and establish an effective procedure for reporting, investigating, and correcting harassing conduct. Here are some best practices recommended by the EEOC:
- Maintain a well-publicized and consistently applied antiharassment policy that (1) covers religious harassment, (2) clearly explains what is prohibited, (3) describes procedures for bringing harassment to management’s attention, and (4) contains an assurance that employees who file complaints will be protected against retaliation.
- Implement a complaint mechanism that includes (1) multiple avenues for complaint, (2) prompt, thorough, and impartial investigations, and (3) prompt and appropriate corrective action.
- Allow religious expression among employees to the same extent that you allow other types of personal expression that aren’t harassing or disruptive.
- Take steps to end potential religious harassment once you are put on notice that an employee objects to a coworker’s proselytizing. Even conduct you don’t regard as abusive can become severe or pervasive enough to affect the conditions of employment if it’s allowed to persist after an employee has complained about it.
- Ensure that you promptly address any harassment perpetrated by a third party (e.g., a temp provided by a contractor). If such harassment occurs, a supervisor or another person in the chain of command should initiate a meeting with the contractor to demand that the objectionable conduct cease, appropriate disciplinary action be taken if it continues, or a different worker be assigned to your company.
- Intervene immediately when you become aware of objectively abusive or insulting conduct, even if nobody has complained about it.
- Encourage managers to proactively discuss with their subordinates whether a particular religious expression is welcome if it might be construed as harassing by a reasonable person.
- Make sure your supervisors avoid expressing religious beliefs that subordinates might reasonably perceive as coercive (because of their manager’s supervisory authority).
Bottom line
As workplaces become more diverse, employers must walk the thin line between allowing religious expression and preventing harassment based on religion. Putting a stop to harassing behavior while addressing religious accommodation issues necessarily requires early, unbiased, and proactive consideration of your employees’ beliefs, rights, and motivations. However, you must also consider the rights of the other employees in your workforce and your own legitimate business interests. It becomes a true balancing act for HR professionals charged with developing effective and nondiscriminatory policies, procedures, and practices―by no means an easy task.
Tara Martens Miller is an attorney in the Boise office of Greener Burke Shoemaker Oberrecht, P.A. She can be reached at 208-319-2600 or tmiller@greenerlaw.com.