Section 12: Religious Discrimination

Overview:  Title VII coverage rules apply to all religious discrimination claims under the statute.  However, specially defined “religious organizations” and “religious educational institutions” are exempt from certain religious discrimination provisions, and the ministerial exception bars EEO claims by employees of religious institutions who perform vital religious duties at the core of the mission of the religious institution.

Overview: An employer is always liable for a supervisor’s harassment if it results in a tangible employment action.  If the supervisor’s harassment does not result in tangible employment action, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements: (a) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.  An employer is liable for a coworker’s or non-employee’s harassment in two circumstances: (a) if it unreasonably failed to prevent the harassment, or (b) if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.

Overview: Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.^[203]  The Title VII “undue hardship” defense is defined differently than the “undue hardship” defense for disability accommodation under the Americans with Disabilities Act (ADA).  Title VII’s undue hardship defense to providing religious accommodation has been defined by the Supreme Court as requiring a showing that the proposed accommodation in a particular case poses “more than a de minimis” cost or burden.  This is a lower standard for an employer to meet than undue hardship under the ADA, which is defined in that statute as “an action requiring significant difficulty or expense.”^[204] 

[1] This document uses examples that refer to practices and beliefs of various religions.  These examples are intended to clarify the legal principles for which they are used and do not purport to represent the religious beliefs or practices of all members of the cited religions.  Unless otherwise noted, cases are cited in this document for their holdings under Title VII of the Civil Rights Act of 1964 (Title VII).  In some instances, links to non-EEOC internet sites are provided for the reader’s convenience in obtaining additional information; EEOC assumes no responsibility for their content and does not endorse their organizations or guarantee the accuracy of these sites.  Use of the term “employee” in this document should be presumed to include an applicant and, as appropriate, a former employee. 

[2] See 42 U.S.C. § 2000e(k) (Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”);  Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020) (holding that Title VII’s prohibition of discrimination based on sex, 42 U.S.C. § 2000e-2(a), includes a prohibition of discrimination because of sexual orientation or transgender status).

[3]  42 U.S.C. § 2000e-2(a)(1), (2). 

[4] 42 U.S.C. § 2000e(j).

[5] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

[6] Compare Hardison, 432 U.S. at 84 (interpreting Title VII “undue hardship” standard), with 42 U.S.C. § 12111(10)(A) (defining ADA “undue hardship” standard).  Note: Various state and local laws extend beyond Title VII in terms of the protected bases covered, the discrimination prohibited, the accommodation required, and the legal standards and defenses that apply.

[7] See, e.g., Cooper v. Gen. Dynamics, Convair Aerospace Div., 533 F.2d 163, 168 (5th Cir. 1976) (stating “all forms and aspects of religion, however eccentric, are protected”).

[8] This common formulation derives from the seminal Supreme Court decisions interpreting the conscience exemption in the Military Selective Service Act, 50 U.S.C. § 3806(j).  See, e.g., Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (“We believe the proper test to be applied to the determination of what is ‘religious’ under § 2000e(j) can be derived from the Supreme Court decisions in Welsh v. United States, 398 U.S. 333 (1970), and United States v. Seeger, 380 U.S. 163 (1969), i.e., (1) is the ‘belief’ for which protection is sought ‘religious’ in person’s own scheme of things, and (2) is it ‘sincerely held.’” (quoting those decisions)); Fallon v. Mercy Cath. Med. Ctr., 877 F.3d 487, 490-91 (3d Cir. 2017) (applying same test to Title VII claim of religious discrimination); Davis v. Fort Bend Cnty., 765 F.3d 480, 485 (5th Cir. 2014) (same); Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 448 (7th Cir. 2013) (same); EEOC v. Union Independiente de la Autoridad de Acueductos, 279 F.3d 49, 56 (1st Cir. 2002) (same); see also, e.g., EEOC Guidelines on Discrimination Because of Religion, 29 C.F.R. § 1605.1 (stating that EEOC has “consistently applied” this standard to Title VII).

[9] Fallon, 877 F.3d at 491 (quoting Welsh, 398 U.S. at 340 (quoting Seeger, 380 U.S. at 176)).

[10] See, e.g., Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007) (addressing “non-adherence or reverse religious discrimination claim”); Reed v. Great Lakes Cos., 330 F.3d 931, 933-34 (7th Cir. 2003) (“[F]or these purposes, . . . ‘religion’ includes antipathy to religion.  And so an atheist . . . cannot be fired because his employer dislikes atheists.”); Shapolia v. Los Alamos Nat’l Lab’y, 992 F.2d 1033, 1037 (10th Cir. 1993) (plaintiff claimed he was fired “because he did not hold the same religious beliefs as his supervisors”); Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140 (5th Cir. 1975) (finding Title VII violated by requiring atheist employee to attend prayer portion of business meeting).

[11] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731‑32 (2018) (holding that a state administrative agency’s consideration of baker’s First Amendment free exercise claim opposing alleged violation of public accommodations nondiscrimination law “violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint” and apply laws “in a manner that is neutral toward religion”); Epperson v. Ark., 393 U.S. 97, 103-04 (1968) (“Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”); see also Bd. of Educ. v. Grumet, 512 U.S. 687, 714 (1994) (O’Connor, J., concurring) (“We have time and again held that the government generally may not treat people differently based on the God or gods they worship, or do not worship.”).

[12]  In fiscal year 2019, EEOC received 2,725 religious discrimination charges, accounting for 3.7% of all charges filed with the Commission that year.  In fiscal year 1997, EEOC received 1,709 religious discrimination charges, accounting for 2.1% of all charges filed with the Commission that year.  Statistics regarding the number of religious discrimination charges filed with the Commission and dispositions can be found at https://www.eeoc.gov/data/enforcement-and-litigation-statistics-0.

[13]  In general, the principles discussed in this Section apply to Title VII claims against private employers as well as to federal, state, and local public sector employers, unless otherwise noted.  See 42 U.S.C. §§ 2000e(a)-(b), 2000e-16(a) et seq.  See, e.g., infra § 12-I-C-3 (“Additional Interaction of Title VII with the First Amendment and the Religious Freedom Restoration Act (RFRA)”).  Claims under various state or local laws may be analyzed under different standards. Investigators should contact the Office of Legal Counsel if questions arise about how to appropriately analyze charges brought against government entities.

[14]  42 U.S.C. § 2000e-2.  To determine whether an entity is covered by Title VII, see EEOC, Compliance Manual: Threshold Issues (2000), https://www.eeoc.gov/laws/guidance/section-2-threshold-issues [hereinafter Threshold Issues].  Although this document concerns Title VII, employers and employees should note that there may be state and local laws in their jurisdiction prohibiting religious discrimination in employment, some of which may be parallel to Title VII and some of which may afford broader coverage.

[15] See, e.g., EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1120 (10th Cir. 2013) (“A religious accommodation claim is distinct from a disparate treatment claim.” (quoting EEOC, Compliance Manual: Religious Discrimination § 12-IV (2008)), discussing case law describing disparate treatment and reasonable accommodation as different theories of discrimination), rev’d and remanded, 575 U.S. 768, 135 S. Ct. 2028 (2015).

[16] Abercrombie & Fitch Stores, Inc., 135 S. Ct. at 2031-32.

[17] Id. at 2032-33.  Since the Abercrombie decision was issued, some lower courts have nevertheless continued to characterize denial of accommodation as a distinct cause of action. 

[18]  42 U.S.C. § 2000e(j); see Redmond v. GAF Corp., 574 F.2d 897, 900 (7th Cir. 1978) (observing that “the very words of the statute . . . leave little room for such a limited interpretation”; “to restrict the act to those practices which are mandated or prohibited by a tenet of the religion, would involve the court in determining not only what are the tenets of a particular religion, which by itself perhaps would not be beyond the province of the court, but would frequently require the courts to decide whether a particular practice is or is not required by the tenets of the religion,” a determination that would be “irreconcilable with the warning issued by the Supreme Court” that “‘[i]t is no business of courts to say . . . what is a religious practice or activity’” (quoting Fowler v. Rhode Island, 345 U.S. 67, 70 (1953))); see also Emp’t Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872, 887 (1990) (explaining in Free Exercise Clause case that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim”).  However, as discussed in this section, Title VII does not cover all beliefs; for example, social, political, or economic philosophies, and mere personal preferences, are not “religious” beliefs within the meaning of the statute.

[19]  See Thomas v. Rev. Bd., 450 U.S. 707, 714 (1981) (ruling that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”); see also Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (holding that although animal sacrifice may seem “abhorrent” to some, Santeria belief is religious in nature and is protected by the First Amendment); Toronka v. Cont’l Airlines, 649 F. Supp. 2d 608, 612 (S.D. Tex. 2009) (holding in Title VII case that a moral and ethical belief in the power of dreams that is based on religious convictions and traditions of African descent is a religious belief, and that this determination does not turn on veracity but rather is based on a theory of “’man’s nature or his place in the Universe,’” even if considered by others to be “nonsensical” (quoting Brown v. Dade Christian Schs., Inc., 556 F.2d 310, 324 (5th Cir. 1977) (Roney, J., dissenting))); United States v. Meyers, 906 F. Supp. 1494, 1499 (D. Wyo. 1995) (relying on First Amendment jurisprudence to observe in Religious Freedom Restoration Act case that “one man’s religion will always be another man’s heresy”).

[20]  Welsh v. United States, 398 U.S. 333, 339 (1970) (interpreting what is now the Military Selective Service Act, 50 U.S.C. § 3806(j)); see also Thomas, 450 U.S. at 716 (“[I]t is not within the judicial function and judicial competence to inquire whether the petitioner or [another practitioner] . . . more correctly perceived the commands of their common faith.  Courts are not arbiters of scriptural interpretation.”) (First Amendment).

[21]  United States v. Seeger, 380 U.S. 163, 166, 176 (1965).  Although Seeger arose under what is now the Military Selective Service Act, 50 U.S.C. § 3806(j), the EEOC has “consistently applied this standard” to Title VII, see Commission Guidelines, 29 C.F.R. § 1605.1.  The courts have as well.  See supra note 8.

[22]  Thomas, 450 U.S. at 714 (“The determination of what is a ‘religious’ belief or practice is more often than not a difficult and delicate task. . . . However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014) (“[I]t is not for us to say that the line [employee] drew [between work that was consistent with religious beliefs and work that was morally objectionable] was an unreasonable one.”  (quoting Thomas, 450 U.S. at 715)).   

[23]  Commission Guidelines, 29 C.F.R. § 1605.1 (“The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee.”); Welsh, 398 U.S. at 343 (finding that petitioner’s beliefs were religious in nature although the church to which he belonged did not teach those beliefs) (Military Selective Service Act); accord Africa v. Pennsylvania, 662 F.2d 1025, 1032-33 (3d Cir. 1981) (First Amendment); Bushouse v. Local Union 2209, United Auto., Aerospace & Agric. Implement Workers of Am., 164 F. Supp. 2d 1066, 1076 n.15 (N.D. Ind. 2001) (“Title VII’s intention is to provide protection and accommodation for a broad spectrum of religious practices and belief not merely those beliefs based upon organized or recognized teachings of a particular sect.”).

[24]  Commission Guidelines, 29 C.F.R. § 1605.1 (“This standard was developed in [Seeger] and [Welsh].  The Commission has consistently applied this standard in its decisions.”); see Torcaso v. Watkins, 367 U.S. 488, 489-90 (1961) (ruling that government may not favor theism over pantheism or atheism) (First and Fourteenth Amendments); Welsh, 398 U.S. at 339-340 (reiterating that a belief in God or divine beings is not necessary to qualify as a religion; nontheistic beliefs can be religious within the meaning of the statute as long as they “occupy in the life of that individual ‘a place parallel to that filled by . . . God’ in traditionally religious persons.”).

[25] United States v. Meyers, 906 F. Supp. 1494, 1499 (D. Wyo. 1995) (observing that the threshold for establishing the religious nature of beliefs is low; under the First Amendment, “if there is any doubt about whether a particular set of beliefs constitutes a religion, the Court will err on the side of freedom and find that the beliefs are a religion . . . [because the country’s] founders were animated in large part by a desire for religious liberty”), aff’d, 95 F.3d 1475, 1482-83 (10th Cir. 1996); see also Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 887, 887 (1990) (explaining in Free Exercise Clause case that “[r]epeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim”).

[26]  Meyers, 906 F. Supp. at 1502 (ruling that religions address “ultimate ideas,” i.e., “fundamental questions about life, purpose, and death,” and that single-faceted worship of marijuana was not a religion for First Amendment purposes), aff’d, 95 F.3d at 1483.  “Thus, a genuinely held belief that involves matters of the afterlife, spirituality, or the soul, among other possibilities, qualifies as religion under Title VII.”  Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 448 (7th Cir. 2013).

[27] Fallon v. Mercy Catholic Med. Ctr. of Se. Pa., 877 F.3d 487, 491 (3d Cir. 2017) (quoting Africa, 662 F.2d at 1032).  Although “religion” is often marked by external manifestations such as ceremonies, rituals or clergy, such manifestations are not required for a belief to be “religious.”  See, e.g., Malnak v. Yogi, 592 F.2d 197, 209-10 (3d Cir. 1979).

[28]  See Fallon, 877 F.3d at 492 (employee’s objection to flu vaccine did not qualify as a religious belief protected by Title VII because his beliefs that “one should not harm their own body and . . . that the flu vaccine may do more harm than good” did not “address fundamental and ultimate questions having to do with deep and imponderable matters” and were not “comprehensive in nature”).  Similarly, EEOC and courts have found that the Ku Klux Klan is not a religion within the meaning of Title VII because its philosophy has a narrow, temporal, and political character.  See Commission Decision No. 79-06, CCH EEOC Decisions ¶ 6737 (1983); Bellamy v. Mason’s Stores, Inc., 368 F. Supp. 1025, 1026 (E.D. Va. 1973), aff’d, 508 F.2d 504 (4th Cir. 1974); Slater v. King Soopers, 809 F. Supp. 809, 810 (D. Colo. 1992) (dismissing religious discrimination claim by a member of the Ku Klux Klan who allegedly was fired for participating in a Hitler rally because the Ku Klux Klan is “political and social in nature” and is not a religion for Title VII purposes); see also Brown v. Pena, 441 F. Supp. 1382, 1385 (S.D. Fla. 1977) (holding that plaintiff’s belief that eating cat food contributes to his well-being is a personal preference and not a religion).  In a related context, the Supreme Court has held that, unlike religious beliefs, philosophical and personal beliefs “do[] not rise to the demands of the Religion Clauses.”  Wisconsin v. Yoder, 406 U.S. 205, 216 (1972).  When evaluating whether the belief qualifies as religious, courts should consider whether the belief is merely focused on an “isolated moral teaching” or rather is part of a “comprehensive system of beliefs about fundamental or ultimate matters.” Fallon, 877 F.3d at 492.

[29] Fallon, 877 F.3d at 492.  See also Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 225 (3d Cir. 2000) (addressing merits of Title VII religious accommodation claim based on plaintiff’s refusal to participate in medical procedures that terminate a pregnancy); cf.  Gadling-Cole v. W. Chester Univ., 868 F. Supp. 2d 390, 396-97 (E.D. Pa. 2012)(emphasizing that Title VII religious discrimination claims have been held cognizable as to topics that “overlap both the religious and political spectrum, such as abortion, so long as the claims are based on a plaintiff’s bona fide religious belief”). 

[30] See Yoder, 406 U.S. at 216 (explaining that “if the Amish asserted their [free exercise] claims [against a compulsory education law] because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis”).

[31]  See Davis v. Fort Bend Cnty., 765 F.3d 480, 485, 486-87 (5th Cir. 2014) (holding that whether a practice is religious turns not on the nature of the activity itself, but rather whether the plaintiff “sincerely believed it to be religious in her own scheme of things,” and finding the lower court erred in characterizing plaintiff’s attendance at service and event breaking ground for a new church and feeding community as “a personal commitment, not religious conviction”); Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978) (finding the employer liable for failing to accommodate employee’s participation in Saturday Bible classes pursuant to a sincerely held religious belief given that he was appointed to be lifetime leader of his church Bible study class many years earlier, time of meeting was scheduled by church elders, and employee felt that his participation was at dictate of his elders and constituted a “religious obligation”); see also Dachman v. Shalala, 9 F. App’x 186, 191-93 (4th Cir. 2003) (ruling that plaintiff’s accommodation request to be home by time of Sabbath observance was covered by Title VII, but time off sought for tasks that could be performed at another time, such as purchasing ritual foods, cooking, and cleaning in preparation for the observance, was a personal preference that the employer was not required to accommodate); Jiglov v. Hotel Peabody, GP, 719 F. Supp. 2d 918, 929-30 (W.D. Tenn. 2010) (holding that a scheduling accommodation request could be covered by Title VII where employee’s religious dictates for observance of Russian Orthodox Easter included not only attendance at church service but also a priest’s blessing of the family meal, the sharing of the meal, and prayer with family members); Duran v. Select Med. Corp., No. 08-cv-2328-JPM-tmp, 2010 WL 11493117, at *5-6 (W.D. Tenn. Mar. 19, 2010) (holding that a scheduling accommodation request to be able to attend Christmas Mass was covered by Title VII, but not the family meal and gift exchange that followed).

[32]  Cf. Spies v. Voinovich, 173 F.3d 398, 406-07 (6th Cir. 1999) (ruling there was no obligation to accommodate a vegan diet that an individual conceded was unrelated to his Zen Buddhist religious beliefs); LaFevers v. Saffle, 936 F.2d 1117 (10th Cir. 1991) (holding that although not all Seventh-day Adventists are vegetarian, an individual adherent’s genuine religious belief in such a dietary practice warrants constitutional protection under the First Amendment).

[33] Compare Fallon, 877 F.3d at 492-93 (recognizing that anti-vaccination beliefs such as those held by Christian Scientists can be part of a “broader religious faith” and therefore subject to Title VII religious accommodation in some circumstances, but concluding that plaintiff’s beliefs did not qualify as religious because he “simply worries about the health effects of the flu vaccine, disbelieves the scientifically accepted view that it is harmless to most people, and wishes to avoid this vaccine.”), with Chenzira v. Cincinnati Child.’s Hosp. Med. Ctr., No. 1:11–CV–00917, 2012 WL 6721098, at *4 (S.D. Ohio Dec. 27, 2012) (holding that Title VII could cover a request to be excused from hospital mandatory vaccination policy due to vegan opposition to a vaccine that was animal-tested or contains animal byproducts if plaintiff “subscribe[d] to veganism with a sincerity equating that of traditional religious views,” noting her citation to essays about veganism and to Biblical excerpts). 

[34] Davis, 765 F.3d at 486 (quoting Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013)); see also Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452 (7th Cir. 2013) (emphasizing that Title VII has a “broad and intentionally hands-off definition of religion”).

[35]  See Dettmer v. Landon, 799 F.2d 929, 932 (4th Cir. 1986) (rejecting argument that witchcraft was a “conglomeration” of “various aspects of the occult” rather than a religion, because religious beliefs need not be “acceptable, logical, consistent or comprehensible to others” to be protected under the First Amendment); Wash. Ethical Soc’y v. Dist. of Columbia, 249 F.2d 127, 128 (D.C. Cir. 1957) (holding that ethical society qualifies as a “religious corporation or society” under District of Columbia Tax Statute, and its building is entitled to tax exemption; belief in a Supreme Being or supernatural power is not essential to qualify for tax exemption accorded to “religious corporations,” “churches,” or “religious societies”).  Compare EEOC v. United Health Programs of Am., Inc., 213 F. Supp. 3d 377, 402 (E.D.N.Y. 2016) (holding, where plaintiff alleged harassment or denial of religious accommodation, that employer’s use of conflict resolution program known as “Onionhead” or “Harnessing Happiness” was a “religion” within the meaning of Title VII, since program’s system of beliefs and practices was more than intellectual and involved ultimate concerns signifying religiosity, including chants, prayers, and mentions of God, transcendence, and souls), with Cavanaugh v. Bartelt, 178 F. Supp. 3d 819, 829-30 (D. Neb. 2016) (ruling that allegation one is a “Pastafarian,” a believer in the divine “Flying Spaghetti Monster” who practices the religion of “FSMism,” was not a religion within the meaning of Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 1983, or Constitution, but instead “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education”), aff’d, No. 16-2105 (8th Cir. Sept. 7, 2016). 

[36] See EEOC v. Red Robin Gourmet Burgers, Inc., No. C04–1291JLR, 2005 WL 2090677, at *3 (W.D. Wash. Aug. 29, 2005) (denying employer’s motion for summary judgment on religious accommodation claim arising from employee’s refusal to cover his Kemetic religious tattoos to comply with employer’s dress code). 

[37] See Fallon, 877 F.3d at 491.

[38]  Dockery v. Maryville Acad., 379 F. Supp. 3d 704, 718 n.18 (N.D. Ill. 2019) (ruling that “while the ‘validity’ of a religious belief cannot be questioned, ‘the threshold question of sincerity . . .  must be resolved in every case’” (quoting United States v. Seeger, 380 U.S. 163, 185 (1965))).

[39] See Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443 (5th Cir. 2011) (reciting prima facie case for harassment because of religion without reference to inquiry into sincerity of religious belief); Dixon v. Hallmark Cos., 627 F.3d 849 (11th Cir. 2010) (analyzing sincerity of religious belief only with respect to failure-to-accommodate claim, not with respect to discriminatory termination claim).

[40] Cf. Moussazadeh v. Tx. Dep’t of Crim. Just., 703 F.3d 781, 790 (5th Cir. 2012) (case arising under Religious Land Use and Institutionalized Persons Act (RLUIPA)).

[41] Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452 (7th Cir. 2013) (holding that inquiring into sincerity is limited to determining if the asserted belief or practice is in fact the employee’s own religious belief; it should not entail considering any matters such as whether employee had a true conversion experience or whether the practices are embedded in his cultural and family upbringing); see also Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 716 (1981) (“Particularly in this sensitive area [where employee had quit job producing armaments citing religious objections and claimed that state’s denial of unemployment compensation violated the First Amendment], it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker [another Jehovah’s Witness who was willing to take the same job] more correctly perceived the commands of their common faith.  Courts are not arbiters of scriptural interpretation.”).

[42] Davis v. Ft. Bend Cnty., 765 F.3d 480, 486 (5th Cir. 2014) (quoting Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013)).

[43] Grayson v. Schuler, 666 F.3d 450, 454-55 (7th Cir. 2012) (finding in RLUIPA case that Nazirite prisoner’s asserted belief in not cutting his hair was sincerely held).

[44] EEOC v. Union Independiente De La Autoridad De Acueductos, 279 F.3d 49, 57 (1st Cir. 2002).

[45]  See, e.g., id. (holding that evidence the employee had violated a number of tenets of his professed Seventh Day Adventist faith was sufficient to create a triable issue of fact for jury); Hansard v. Johns-Manville Prods. Corp., No. 1902, 1973 WL 129, at *2 (E.D. Tex. Feb. 16, 1973) (employee’s contention that he objected to Sunday work for religious reasons was undermined by his very recent history of Sunday work); see also Hussein v. Waldorf-Astoria, 134 F. Supp. 2d 591, 596 (S.D.N.Y. 2001) (employer had a good faith basis to doubt sincerity of employee’s professed religious need to wear a beard because he had not worn a beard at any time in his fourteen years of employment, had never mentioned his religious beliefs to anyone at the hotel, and simply showed up for work one night and asked for an on-the-spot exception to the no‑beard policy), aff’d, 2002 WL 390437 (2d Cir. Mar. 13, 2002).

[46] See, e.g., Brown v. Gen. Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979) (“[42 U.S.C.] § 2000e-2(a)(1) does not require an employer to reasonably accommodate the purely personal preferences of its employees” and thus would not have required the employer in this case to bear the costs of “excusing vast numbers of employees who wish to have Friday night off for secular reasons”); Dachman v. Shalala, 9 F. App’x 186, 192 (4th Cir. 2001) (holding that employer not required to accommodate Jewish employee’s desire to leave work earlier on Friday afternoon to pick up Challah bread instead of doing it on Thursday evening; “Title VII does not protect secular preferences” (quoting Tiano v. Dillard Dep't Stores, Inc., 139 F.3d 679, 682 (9th Cir. 1998))).

[47] See, e.g., Union Independiente, 279 F.3d at 57 (fact that employee initially “objected only to certain membership requirements” and “voiced his opposition to any form of union membership after UIA agreed to accommodate him with respect to each practice he had identified” gave rise to jury issue on sincerity).

[48]  See, e.g., EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir. 1997) (en banc) (finding that Jewish employee proved her request for leave to observe Yom Kippur was based on a sincerely held religious belief even though she had never in her prior eight-year tenure sought leave from work for a religious observance, and conceded that she generally was not a very religious person, where the evidence showed that certain events in her life, including the birth of her son and the death of her father, had strengthened her religious beliefs over the years); Cooper v. Oak Rubber Co., 15 F.3d 1375 (6th Cir. 1994) (holding that employee held sincere religious belief against working on Saturdays, despite having worked the Friday night shift at plant for approximately seven months after her baptism, where seventeen months intervened before employee was next required to work on Saturday and employee’s undisputed testimony was that her faith and commitment to her religion grew during this time); Cunningham v. City of Shreveport, 407 F. Supp. 3d 595, 609-10 (W.D. La. 2019) (holding that disputed material facts precluded summary judgment on sincerity where employee who previously grew beard during vacations and extended weekends asserted new religious adherence prompted wearing beard full-time); EEOC v. IBP, Inc., 824 F. Supp. 147, 151 (C.D. Ill. 1993) (holding that Seventh-day Adventist employee’s previous absence of faith and subsequent loss of faith did not prove that his religious beliefs were insincere at the time that he refused to work on the Sabbath); see also Union Independiente, 279 F.3d at 57 & n.8 (noting the fact that the alleged conflict between plaintiff’s beliefs and union membership kept changing might call into question the sincerity of the beliefs or “might simply reflect an evolution in plaintiff’s religious views toward a more steadfast opposition to union membership”).

[49] See EEOC v. Alamo Rent-A-Car, LLC, 432 F. Supp. 2d 1006, 1012 (D. Ariz. 2006) (finding that it was Muslim employee’s sincerely held religious observance to wear headscarf during Ramadan, even though she did not wear it the rest of the year).

[50] See EEOC v. Triangle Catering, LLC, No. 5:15-CV-00016-FL, 2017 WL 818261, at *9 (E.D.N.C. Mar. 1, 2017) (holding that reasonable factfinder could conclude employee had sincerely held religious belief in wearing religious garb if it credited his explanation for not having worn it to job interview for fear of hiring discrimination).

[51]  See Commission Guidelines, 29 C.F.R. § 1605.1; Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 452-54 (7th Cir. 2013) (holding that employee presented sufficient evidence to show that his request to attend his father's funeral in Nigeria to perform specific rites, traditions, and customs “was borne from his own personally and sincerely held religious beliefs” because “participating in the rites and traditions identified by his father is a necessary part of [the employee’s] religious observance” even though  employee’s religious practices “were not identical to the religious practices his family observes in Nigeria”).

[52] Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 475 (7th Cir. 2001) (finding that employee’s belief that she needed to use the phrase “Have a Blessed Day” was a religious practice covered by Title VII even though using the phrase was not a requirement of her religion); Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); see also Adeyeye, 721 F.3d at 452 (“It is not within our province to evaluate whether particular religious practices or observances are necessarily orthodox or even mandated by an organized religious hierarchy.”).

[53] Title 42 U.S.C. § 2000e-2(a) applies to employers with fifteen or more employees.  See 42 U.S.C. § 2000e(b). Section 2000e-2(b) applies to employment agencies, stating it is unlawful for employment agencies to “fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his . . . religion . . . or to classify or refer for employment any individual on the basis of his . . . religion . . . .”  Section 2000e-2(c) applies to unions, stating it is unlawful for unions to “(1) to exclude or expel from membership, or otherwise to discriminate against, any individual because of his . . . religion . . . ; (2) to limit, segregate or classify its membership or applicants . . . or to refuse to refer for employment any individual . . . because of such individual’s . . . religion . . . ; or (3) to cause or attempt to cause an employer to discriminate . . . in violation of this section.”

[54] See Threshold Issues, supra note 14.

[55]  See, e.g., EEOC v. Union Independiente De La Autoridad De Acueductos, 279 F.3d 49 (1st Cir. 2002); Bushouse v. Local Union 2209, 164 F. Supp. 2d 1066 (N.D. Ind. 2001).  For further discussion see infra §§ 12-II, 12-III, and 12-IV, including 12-IV-C-5.

[56]  See Goodman  v. Lukens Steel Co., 482 U.S. 656, 668-69 (1987) (holding that unions violated “§ 703(c)(1) [of Title VII, which] makes it an unlawful practice for a Union to ‘exclude or to expel from its membership, or otherwise to discriminate against, any individual’” when they “ignored [racial] discrimination claims . . . , knowing that the employer was discriminating in violation of the contract”); Rainey v. Town of Warren, 80 F. Supp. 2d 5, 17 (D.R.I. 2000) (“It is axiomatic that a union’s failure to adequately represent union members in the face of employer discrimination may subject the union to liability under either Title VII or its duty of fair representation.”).  To the extent it has been held that a union cannot be held liable where it knowingly acquiesces in discrimination, the EEOC disagrees.  See EEOC v. Pipefitters Ass’n Local Union 597, 334 F.3d 656 (7th Cir. 2003); see also Burton v. Freescale Semiconductor, Inc., 789 F.3d 222, 229 (5th Cir. 2015) (“A staffing agency is liable for the discriminatory conduct of its joint-employer client if it participates in the discrimination, or if it knows or should have known of the client’s discrimination and fails to take corrective measures within its control.”).

[57]  Section 702(a) of Title VII, 42 U.S.C. § 2000e-1(a), provides:

[Title VII] shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Section 703(e)(2) of Title VII, 42 U.S.C. § 2000e-2(e)(2) provides:

[I]t shall not be an unlawful employment practice for a school, college, university, or educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

The Americans with Disabilities Act (ADA) also provides religious entities with two defenses to claims of discrimination that arise under Title I, the ADA’s employment provisions. The first provides that “[t]his subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities.” 42 U.S.C. § 12113(d)(1).  The second provides that “[u]nder this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.” 42 U.S.C. § 12113(d)(2).

[58]  Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000); see also Garcia v. Salvation Army, 918 F.3d 997, 1003 (9th Cir. 2019) (“In applying the [religious organization exemption], we determine whether an institution’s ‘purpose and character are primarily religious’ by weighing ‘[a]ll significant religious and secular characteristics.’”  (quoting EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988)) (second alteration in original)); LeBoon v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 226 (3d Cir. 2007) (applying similar “primarily religious” standard); Killinger v. Samford Univ., 113 F.3d 196, 198‑99 (11th Cir. 1997) (looking at specific facts to determine whether university was “religious” or “secular”). 

[59] LeBoon, 503 F.3d at 226; but see Spencer v. World Vision, Inc., 633 F.3d 723, 730-33 (O’Scannlain, J. concurring) (expressing concern that “several of the LeBoon factors could be constitutionally troublesome if applied to this case”).

[60]  In Hall, 215 F.3d at 624-25, the Sixth Circuit, looking to “all the facts,” found that a college of health sciences was a Title VII religious organization because it was an affiliated institution of a church-affiliated hospital, it had a direct relationship with the Baptist church, and the college atmosphere was permeated with religious overtones.  In Spencer v. World Vision, Inc., 633 F.3d 723, 724 (9th Cir. 2011) (per curiam), the Ninth Circuit held that an entity is “eligible” for the exemption, at least, if the entity (1) is organized for a religious purpose; (2) is engaged primarily in carrying out that religious purpose; (3) holds itself out to the public as an entity for carrying out that religious purpose; and (4) does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.  One judge in Spencer took the view that the exemption is met if the entity is a non-profit and satisfies the first three factors, id. at 734 (O’Scannlain, J., concurring), and another judge took the view that the Salvation Army, for example, would satisfy the “nominal amounts” standard of the fourth factor, notwithstanding that it generates a large-dollar amount of sales revenue, because it “gives its homeless shelter and soup kitchen services away, or charges nominal fees.”  Id. at 747 (Kleinfeld, J., concurring).  In Garcia, 918 F.3d at 1003-04, the Ninth Circuit held that the Salvation Army is a religious organization under Title VII by applying the Spencer test under either judge’s formulation.  In LeBoon, 503 F.3d at 226-29, the Third Circuit found that a Jewish community center was a Title VII religious organization where, among other factors, the center “identified itself as Jewish,” relied on coreligionists for financial support, offered instructional programs with Jewish content, began its Board of Trustees meetings with biblical readings, and involved rabbis from three local synagogues in its management).  See also Killinger, 113 F.3d at 199-200 (university founded as a theological institution by the Alabama Baptist State Convention qualified as a “religious educational institution” under Title VII; the court noted that all Trustees must be Baptist, the Convention is the university’s largest single source of funding, and the school’s charter designates its chief purpose as “the promotion of the Christian Religion throughout the world by maintaining and operating … institutions dedicated to the development of Christian character in high scholastic standing.”).

[61] LeBoon, 503 F.3d at 229 (holding that a Jewish community center was a religious organization under Title VII, despite engaging in secular activities such as secular lectures and instruction with no religious content, employing overwhelmingly Gentile employees, and failing to ban non-kosher foods, and noting that a religiously affiliated newspaper and a religious college had also been found covered by the exemption).  However, in LeBoon, the court did state that “the religious organization exemption would not extend to an enterprise involved in a wholly secular and for-profit activity.”  LeBoon, 503 F.3d at 229; see also Townley Eng’g & Mfg. Co., 859 F.2d at 619 (holding that evidence the company was for profit, produced a secular product, was not affiliated with a church, and did not mention a religious purpose in its formation documents, indicated that the business was not “primarily religious” and therefore did not qualify for the religious organization exemption).  In Garcia v. Salvation Army, 918 F.3d 997, 1003 (9th Cir. 2019), the court cited Townley as the governing precedent for defining a religious organization.

[62] In Hobby Lobby, a case interpreting the term “person” under RFRA, the Supreme Court briefly referenced Title VII’s religious organization exemption in response to the U.S. Department of Health and Human Services’ (HHS) argument that “statutes like Title VII . . . expressly exempt churches and other nonprofit religious institutions but not-for-profit corporations.”  573 U.S. at 716.  The Court did not expressly agree with HHS’s characterization but noted that other statutes “do exempt categories of entities that include for-profit corporations from laws that otherwise require these entities to engage in activities to which they object on grounds of conscience.”  Id.  “If Title VII and similar laws show anything, it is that Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations.”  Id. at 717.  It should be noted that, despite HHS’s assertion in its Hobby Lobby brief, section 702(a) does not expressly distinguish “religious” entities based on for-profit or nonprofit status.

[63] Cf. id. at 702, 708  (in a non-Title VII case, rejecting the argument that “‘for-profit, secular corporations cannot engage in religious exercise’ within the meaning of [the Religious Freedom Restoration Act (RFRA)] or the First Amendment,” and holding that RFRA’s protections for any “person” whose religious free exercise is substantially burdened by the government is not limited to nonprofits and includes for-profit closely held corporations providing secular goods or services because “no conceivable definition of the term [‘person’] includes natural persons and nonprofit corporations, but not for-profit corporations”); see Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 349 (1987) (O’Connor, J., concurring) (recognizing that it is an open question regarding application of Title VII’s religious organizations exemption under section 702 to for-profit organizations, specifically mentioning possible Establishment Clause issues with respect to for-profit organizations). 

[64] 42 U.S.C. § 2000e-1(a). The Supreme Court, in dicta in a case focused on religious discrimination, has characterized section 702 by stating it “exempts religious organizations from Title VII’s prohibition against discrimination on the basis of religion.” Amos, 483 U.S. at 329.  Section 703(e)(2) states, “it shall not be an unlawful employment practice” for certain schools, colleges, universities, or other educational institutions “to hire or employ employees of a particular religion.”  42 U.S.C. § 2000e-2(e)(2).

[65] See Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011) (holding that exemption “does not exempt religious organizations from Title VII’s provisions barring discrimination on the basis of race, gender, or national origin”); Boyd v. Harding Acad. of Memphis, Inc., 88 F.3d 410, 413 (6th Cir. 1996) (stating that the exemption “does not … exempt religious educational institutions with respect to all discrimination”); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 173 (2d Cir. 1993) (“religious institutions that otherwise qualify as ‘employer[s]’ are subject to Title VII provisions relating to discrimination based on race, gender and national origin”); Rayburn v. Gen. Conf. of Seventh-day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985) (“While the language of § 702 makes clear that religious institutions may base relevant hiring decisions upon religious preferences, Title VII does not confer upon religious organizations a license to make those same decisions on the basis of race, sex, or national origin.”); cf. Garcia, 918 F.3d at 1004-5 (holding that Title VII retaliation and hostile work environment claims related to religious discrimination were barred by religious organization exception, but adjudicating disability discrimination claim on the merits).

[66] 42 U.S.C. § 2000e-2(e) (“Notwithstanding any other provision of [Title VII], it shall not be an unlawful employment practice for [certain religious educational organizations] . . . to hire and employ employees of a particular religion . . . .”).

[67] Courts take varying approaches regarding the causation standard and proof frameworks to be applied in assessing this defense.  See Kennedy, 657 F.3d 189 at 193-94 (holding that plaintiff’s claims of discharge, harassment, and retaliation based on religion were covered by section 702(a) religious exemption and thus barred); Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 141 (3d Cir. 2006) (“Thus, we will not apply Title VII to [plaintiff’s sex discrimination] claim because Congress has not demonstrated a clear expression of an affirmative intention that we do so in situations where it is impossible to avoid inquiry into a religious employer's religious mission or the plausibility of its religious justification for an employment decision.”); DeMarco, 4 F.3d at 170-71 (“[T]he [McDonnell Douglas] inquiry is directed toward determining whether the articulated purpose is the actual purpose for the challenged employment-related action.”); EEOC v. Miss. Coll., 626 F.2d 477, 485 (5th Cir. 1980) (holding race and sex discrimination claims barred by section 702 exemption where religious employer presents “convincing evidence” that employment practice was based on the employee’s religion).

[68] “For the purposes of this subchapter … [t]he term “religion” includes all aspects of religious observance and practice, as well as belief.”  42 U.S.C. § 2000e(j).

[69] See Curay-Cramer, 450 F.3d at 141 (distinguishing the case “from one in which a plaintiff avers that truly comparable employees were treated differently following substantially similar conduct”); DeMarco, 4 F.3d at 171 (stating pretext inquiry “focuses on . . . whether the rule applied to the plaintiff has been applied uniformly”); EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1368 n.1 (9th Cir. 1986) (finding that Title VII’s exemption did not apply when the religious employer’s practice and justification were “conclusive[ly]” a pretext for sex discrimination).

[70] See Curay-Cramer, 450 F.3d at 141 (“[T]he existence of [section 702(a)] and our interpretation of its scope prevent us from finding a clear expression of an affirmative intention on the part of Congress to have Title VII apply when its application would involve the court in evaluating violations of [Catholic] Church doctrine.”); DeMarco, 4 F.3d at 170-71 (“The district court reasoned that, where employers proffered religious reasons for challenged employment actions, application of the McDonnell Douglas test would require ‘recurrent inquiry as to the value or truthfulness of church doctrine,’ thus giving rise to constitutional concerns.  However, in applying the McDonnell Douglas test to determine whether an employer’s putative purpose is a pretext, a fact-finder need not, and indeed should not, evaluate whether a defendant’s stated purpose is unwise or unreasonable.  Rather, the inquiry is directed toward determining whether the articulated purpose is the actual purpose for the challenged employment-related action.” (citations omitted)); cf. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014) (in determining whether an agency rule contravened a closely held corporation’s rights under the Religious Freedom Restoration Act, “it is not for the Court to say that . . . religious beliefs are mistaken or unreasonable”; rather the Court’s “‘narrow function . . . is to determine’ whether the plaintiffs’ asserted religious belief reflects ‘an honest conviction’”).

[71] Fremont Christian Sch., 781 F.2d at 1367 n.1; see also Miss. Coll., 626 F.2d at 486 (if evidence disclosed that the college “in fact” did not consider its religious preference policy in determining which applicant to hire, section 702 did not bar EEOC investigation into applicant’s sex discrimination claim).

[72] Fremont Christian Sch., 781 F.2d at 1366 (quoting Miss. Coll., 626 F.2d at 485).

[73] See Garcia v. Salvation Army, 918 F.3d 997, 1007 (9th Cir. 2019) (holding that Title VII’s religious organizations exemption is not jurisdictional and can be waived if not timely raised in litigation). “Because Congress did not rank the religious exemption as jurisdictional, this Court will ‘treat the restriction as nonjurisdictional in character.’” Smith v. Angel Food Ministries, Inc., 611 F. Supp. 2d 1346, 1351 (M.D. Ga. 2009) (quoting Arbaugh, 546 U.S. 500, 515 (2006)).

[74] See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987) (addressing the issue of whether the § 702 exemption to the secular nonprofit activities of religious organizations violates the Establishment Clause of the First Amendment, the Court held that  “as applied to the nonprofit activities of religious employers, § 702 is rationally related to the legitimate purpose of alleviating significant governmental interference with the ability of religious organizations to define and carry out their religious missions”); Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 192 (4th Cir. 2011) (“The revised [religious organization exemption] provision, adopted in 1972, broadens the exemption to include any activities of religious organizations, regardless of whether those activities are religious or secular in nature.”).

[75] Little v. Wuerl, 929 F.2d 944, 951 (3d Cir. 1991) (holding religious organization exemption barred religious discrimination claim by parochial school teacher who was discharged for failing to follow church canonical procedures with respect to annulment of a first marriage before remarrying).

[76] See 42 U.S.C. § 2000e(j) (defining religion to include “all aspects of religious observance and practice, as well as belief”); see also Little, 929 F.2d at 951 (concluding that “the permission to employ persons ‘of a particular religion’ includes permission to employ only persons whose beliefs and conduct are consistent with the employer’s religious precepts”).

[77] Hall v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 624 (6th Cir. 2000); see, e.g., Killinger v. Samford Univ., 113 F.3d 196, 200 (11th Cir. 1997) (holding that under religious organization exemption School of Divinity need not employ professor who did not adhere to the theology advanced by its leadership); Little, 929 F.2d at 951 (holding that religious organization exemption barred religious discrimination claim challenging parochial school’s termination of teacher who had failed to validate her second marriage by first seeking an annulment of her previous marriage through the canonical procedures of the Catholic church).

[78] See Hall, 215 F.3d at 625 (finding that Title VII’s religious organization exemption was not waived by  the employer’s receipt of federal funding or holding itself out as an equal employment opportunity employer);  Little, 929 F.3d at 951 (finding that Title VII’s religious organization exemption was not waived by Catholic school knowingly hiring a Lutheran teacher); see also Garcia v. Salvation Army, 918 F.3d 997, 1007 (9th Cir. 2019) (holding that Title VII’s religious organization exemption is not jurisdictional and can be waived).

[79] “In this context, there are circumstances, like those presented here, where a religious institution's ability to ‘create and maintain communities composed solely of individuals faithful to their doctrinal practices’ will be jeopardized by a plaintiff's claim of gender discrimination.”  Curay-Cramer, 450 F.3d at 140-42 (affirming dismissal under the religious organization exemption and First Amendment grounds of Catholic school teacher’s claim that her termination for signing pro-choice newspaper advertisement constituted sex discrimination under Title VII; evaluating the plaintiff’s claim that male employees were treated less harshly for different conduct that violated church doctrine (e.g., opposition to the Iraq war) would require the court to “measure the degree of severity of various violations of Church doctrine” in violation of the First Amendment); see also Miss. College, 626 F.2d at 485  (holding that a plaintiff is barred from proceeding with a Title VII suit if a religious employer presents “convincing evidence” that the employment practice was based on a religious preference).

[80] Id. at 141 (“We distinguish this case from one in which a plaintiff avers that truly comparable employees were treated differently following substantially similar conduct . . . Requiring a religious employer to explain why it has treated two employees who have committed essentially the same offense differently poses no threat to the employer's ability to create and maintain communities of the faithful.”)

[81] 565 U.S. 171 (2012).

[82] Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049, 2061 (2020).

[83] Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188-89 (2012).

[84] Our Lady of Guadalupe, 140 S. Ct. at 2060.

[85] Hosanna-Tabor, 565 U.S, at 195 n.4 (“We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”); Our Lady of Guadalupe, 140 S. Ct. at 2055.

[86] Id.; see also Hosanna-Tabor, 565 U.S. at 188 (agreeing that the ministerial exception “precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers”).

There is a split in the courts on whether ministerial employees can bring EEO harassment claims.  Compare Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 953 (9th Cir. 2004) (holding that the ministerial exception does not bar sexual harassment and retaliation claims that do not “implicate the Church’s ministerial employment decisions”), and Clement v. Roman Catholic Diocese of Erie, No. 16-117, 2017 WL 2619134, at *4 n.3 (W.D. Pa. June 16, 2017) (ruling that sexual harassment claim by ministerial employee was not barred because Hosanna-Tabor expressly limited its holding to employment discrimination claims based on hiring and termination decisions and left open whether the ministerial exception bars other types of claims), with Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1246 (10th Cir. 2010) (holding that minister’s hostile work environment claim was barred under ministerial exception), and Preece v. Covenant Presbyterian Church, No. 8:13CV188, 2015 WL 1826231, at *7 (D. Neb. Apr. 22, 2015) (holding that the ministerial exception barred sexual harassment claim because it “clearly implicate[d] an internal church decision and management”). The Court in Our Lady of Guadalupe did not address this precise question.  On one hand, the Court emphasized that “the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission.”  140 S. Ct. at 2055 (emphasis added); see also id. at 2060 (“at a component of [a religious institution’s] autonomy is the selection of the individuals who play certain key roles”); id. (“a church’s independence on matters ‘of faith and doctrine’ requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities.”).  On the other hand, the Court stated broadly, “[w]hen a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”  Id. at 2069 (emphasis added); see also id. at 2060 (“Under [the ministerial exception] rule, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.”).

[87] Id. at 2061.

[88] Id.

[89] Id. at 2060; see also Hosanna-Tabor, 565 U.S. at 184 (“The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”).

[90] Our Lady of Guadalupe, 140 S. Ct. at 2060.

[91] Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 310 (4th Cir. 2004) (Fair Labor Standards Act (“FLSA”)).

[92] See Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 834 (6th Cir. 2015) (holding that to invoke the ministerial exception “an employer need not be a traditional religious organization such as a church, diocese, or synagogue, or an entity operated by a traditional religious organization”); see, e.g., Penn v. N.Y. Methodist Hosp., 884 F.3d 416, 424-25 (2d Cir. 2018) (although it was a “close question,” the district court did not err in finding that hospital, which was no longer affiliated with the United Methodist Church and took steps to distance itself from its religious heritage, was “a ‘religious group,’ at least with respect to its Department of Pastoral Care,” because the Department’s operations were “marked by clear or obvious religious characteristics”); Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655 (7th Cir. 2018) (Jewish day school was religious institution for purposes of applying the ministerial exception where school had a rabbi on staff and maintained its own chapel and Torah scrolls, and students were taught Jewish studies and Hebrew and engaged in daily prayer); Conlon, 777 F.3d at 829, 833-34 (parachurch campus student organization “whose purpose is to advance the understanding and practice of  Christianity in colleges and universities” was a religious organization); Shaliehsabou, 363 F.3d 299 (Hebrew nursing home is a religious institution for purposes of applying the ministerial exception to the FLSA where its bylaws define it as a religious and charitable nonprofit and declare that its mission is to provide elder care to “aged of the Jewish faith in accordance with the precepts of Jewish law and customs”; pursuant to that mission, the nursing home maintained a rabbi on staff, employed mashgichim to ensure compliance with Jewish dietary laws, and placed a mezuzah on every resident’s doorpost); Yin v. Columbia Int’l Univ., 335 F. Supp. 3d 803 (D.S.C. 2018) (religious university that “trains Christians for global missions, full-time vocational Christian ministry in a variety of strategic professions, and marketplace ministry” and “educates people from a biblical worldview” could invoke exception).

[93] See Our Lady of Guadalupe, 140 S. Ct. at 2058-59 (the schools maintained that their decisions were based on “classroom performance—specifically, [the teacher’s] difficulty in administering a new reading and writing program”—and “poor performance—namely, a failure to observe the planned curriculum and keep an orderly classroom”).

[94] 140 S. Ct. at 2066.

[95] Hosanna-Tabor, 565 U.S. at 190.

[96] Our Lady of Guadalupe, 140 S. Ct. at 2055, 2062; Hosanna-Tabor, 565 U.S. at 190-92 (holding that the ministerial exception applied to a parochial school teacher, because she pursued a rigorous religious course of study to become a “called” teacher, which included being ordained and receiving the title of “minister,” she held herself out as a minister of the church, she led daily prayers and occasional chapel services, and she provided religious instruction).

[97] Hosanna-Tabor, 565 U.S. at 193.

[98] Our Lady of Guadalupe, 140 S. Ct. at 2064.

[99] Id. at 2064, 2068.

[100]   Hosanna-Tabor, 565 U.S. at 193-94 (pointing out that the “heads of congregations themselves often have a mix of duties, including secular ones”).

[101]   140 S. Ct. at 2063.

[102]   Id. at 2067.

[103]   Id. at 2064; see also Hosanna-Tabor, 565 U.S. at 194 (explaining that, while relevant, the considerations “cannot be considered in isolation, without regard to the nature of the religious functions performed”).

[104]   Id.

[105]   See id. at 2056, 2060, 2067 n.26, 2068-69; Hosanna-Tabor, 565 U.S. at 190.

[106]   Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 655 (7th Cir. 2018) (finding claims by parochial school Hebrew and Jewish studies teacher barred); Fratello v. Archdiocese of N.Y., 863 F.3d 190 (2d Cir. 2017) (finding claims by parochial school principal barred); Lishu Lin v. Columbia Int’l Univ., 335 F. Supp. 3d 803 (D.S.C. 2018) (finding claims by faculty member with secular titles barred where she trained Christians for ministry and educated students from a biblical worldview to spread religious message).

[107]   Sterlinski v. Cath. Bishop of Chi., 934 F.3d 568 (7th Cir. 2019) (finding claim by church organist barred); Cannata v. Catholic Diocese of Austin, 700 F.3d 169 (5th Cir. 2012) (finding claims by church music director barred).

[108]   Penn v. N.Y. Methodist Hosp., 884 F.3d 416 (2d Cir. 2018) (finding claims by hospital chaplain barred, viewing chaplaincy department as a religious organization though hospital was not); Conlon, 777 F.3d 829 (finding claim by staff spiritual director of fellowship organization barred); Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 309 (4th Cir. 2004) (given “the importance of dietary laws to the Jewish religion,” “mashgiach” (kosher supervisor) at Hebrew Home was ministerial employee for purposes of FLSA).

[109]   140 S. Ct. at 2055, 2065, 2069.

[110]   Id. at 2067 n.26.

[111]   Id. at 2066.

[112]   Id.

[113]   See Conlon, 777 F.3d at 836 (explaining that “[t]he ministerial exception is a structural limitation imposed on the government by the Religion Clauses”).

[114]   See Fratello v. Archdiocese of N.Y., 863 F.3d 190, 198 (2d Cir. 2017) (stating that “the district court appropriately ordered discovery limited to whether [plaintiff] was a minister within the meaning of the exception” when it found that it could not determine whether the ministerial exception applied on a motion to dismiss).

[115]   See Lee v. Sixth Mount Zion Baptist Church, 903 F.3d 113, 118 n.4 (3d Cir. 2018) (noting that although the district court first raised the ministerial exception, “the Church [wa]s not deemed to have waived it because the exception is rooted in constitutional limits on judicial authority”); Conlon, 777 F.3d at 836 (“The Court’s clear language [in Hosanna-Tabor] recognizes that the Constitution does not permit private parties to waive the First Amendment’s ministerial exception.”); but see Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (finding that the school had waived its ministerial exception defense on appeal by not sufficiently arguing it in its brief).

[116] The First Amendment religion and speech clauses provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.”  RFRA, 42 U.S.C. § 2000bb-1(a) and (b), provides: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except . . . if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”  RFRA defines “government” to include “a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”  Id. § 2000bb-2(1).  “Although the claim is statutory, RFRA protects First Amendment free-exercise rights,” Korte v. Sebelius, 735 F.3d 654, 666 (7th Cir. 2013), because it was enacted in response to Employment Division v. Smith, 494 U.S. 872, 887 (1990), and designed to “restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.”  42 U.S.C. § 2000bb(b)(1).  The First Amendment applies only to restrictions imposed by the government—federal or state—not by private parties.  See Cantwell v. Connecticut, 310 U.S. 296 (1940).  RFRA applies only to restrictions imposed by the federal government, not by state governments or private parties.  See 42 U.S.C. § 2000bb-2(1); City of Boerne v. Flores, 521 U.S. 507 (1997); Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002); Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001).

[117]  See e.g., Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 138 (3d Cir. 2006) (claim that Catholic school engaged in gender discrimination in violation of Title VII could raise “serious constitutional questions” because it required more than limited inquiry into pretext); cf. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020) (“Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.”).

Some courts have examined an employer’s defense to an EEOC action that a nondiscrimination requirement would conflict with their exercise of religion under RFRA, although unsuccessfully thus far.  See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (considering but rejecting employer’s defense that application of Title VII sex nondiscrimination requirement to its hiring decisions would substantially burden its exercise of religion under RFRA); EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 810 (S.D. Ind. 2002) (same for Title VII religious nondiscrimination and non-harassment requirements).  Other courts have held that a RFRA defense does not apply in suits involving only private parties.  See, e.g., Listecki v. Off. Comm. of Unsecured Creditors, 780 F.3d 731, 736-37 (7th Cir. 2015) (RFRA inapplicable where the government is not a party, in part because if the government is not a party, it cannot demonstrate a “compelling government interest” as RFRA requires); Gen. Conf. Corp. of Seventh-Day Adventists v. McGill, 617 F.3d 402 (6th Cir. 2010) (finding RFRA inapplicable in trademark infringement case).  The Second Circuit has held that an employer could raise RFRA as defense to an employee’s Age Discrimination in Employment Act (ADEA) claim, because the ADEA is enforceable both by the EEOC and private litigants, but a number of other circuits have disagreed with that reasoning.  Compare Hankins v. Lyght, 441 F.3d 96, 103 (2d Cir. 2006) with General Conference Corp. of Seventh Day Adventists v. McGill, 617 F.3d 402, 411 (6th Cir. 2006) (declining to follow Hankins based on the text in RFRA), Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006) (“The [Hankins] decision is unsound. RFRA is applicable only in suits to which the government is a party.”), abrogated on other grounds by Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 132 S. Ct. 694 (2012), and Mathis v. Christian Heating Air Conditioning, Inc., 158 F. Supp. 3d 317, 326 (E.D. Pa. 2016) (disagreeing with Hankins and finding that RFRA does not apply if the government is not a party).  One circuit court has found that RFRA’s broad definition of “government” to include any branch of the federal government might allow a court to find sufficient government involvement in lawsuits between private parties to allow for a RFRA defense to apply.  See In re Young, 82 F.3d 1407, 1417 (8th Cir. 1996) (“The bankruptcy code is federal law, the federal courts are a branch of the United States, and our decision in the present case would involve the implementation of federal bankruptcy law.”), vacated on other grounds, 117 S. Ct. 2502 (1997), aff’d on remand, 141 F.3d 854 (1998).  See also Tanzin v. Tanzir, 141 S. Ct. 486, 493 (2020) (“We conclude that RFRA's express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities.”). 

[118] See, e.g., Brown v. Polk Cnty., 61 F.3d 650, 659 (8th Cir. 1995) (en banc) (rejecting county employers’ argument in Title VII religious discrimination case that they were allowed to prohibit religious expression altogether in the workplace to avoid Establishment Clause claims against them).

[119]   See Guidelines on Religious Exercise and Religious Expression in the Federal Workplace (Aug. 14, 1997), https://clintonwhitehouse4.archives.gov/WH/New/html/19970819-3275.html (last visited Jan. 8, 2021) [hereinafter Federal Workplace Guidelines].  Although the Federal Workplace Guidelines are directed at federal employers, they provide useful guidance for state and local government employers, as well as private employers in some circumstances.  In addition, the U.S. Department of Justice maintains a website, www.​firstfreedom.​gov, which provides information on a variety of constitutional and statutory religious discrimination issues.

[120] See, e.g., Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 164‑65 (2d Cir. 2001) (holding that state agency did not violate either Title VII or the First Amendment Free Exercise Clause by refusing to allow employee to evangelize clients of state agency while performing job duties; in addition, employer would have risked First Amendment Establishment Clause violation by permitting the accommodation); cf. Fraternal Order of Police v. City of Newark, 170 F.3d 359 (3d Cir. 1999) (Alito, J.) (holding that police department violated Sunni Muslim officer’s First Amendment free exercise rights by refusing to make a religious exception to its “no beard” policy to accommodate his beliefs, while exempting other officers for medical reasons); Draper v. Logan Cnty. Pub. Lib., 403 F. Supp. 2d 608 (W.D. Ky. 2005) (holding that public library violated an employee’s First Amendment free speech and free exercise rights by prohibiting her from wearing a necklace with a cross ornament). 

[121]   See Harrell v. Donahue, 638 F.3d 975, 984 (8th Cir. 2011) (holding RFRA claims alleging religious discrimination in federal employment are barred because “Title VII provides the exclusive remedy for [] claims of religious discrimination”); Francis v. Mineta, 505 F.3d 266, 272 (3d Cir. 2007) (stating that “[i]t is equally clear that Title VII provides the exclusive remedy for job-related claims of federal religious discrimination, despite [plaintiff’s] attempt to rely upon the provisions of RFRA”).  But see Lister v. Def. Logistics Agency, No. 2:05-CV-495, 2006 WL 162534, at *3 (S.D. Ohio Jan. 20, 2006) (denying defendants’ motion to dismiss as to RFRA claim and finding that “Title VII does not preclude Plaintiff from pursuing claims under the Fifth Amendment to the United States Constitution and RFRA” because “[a]lthough the claims arise from the same factual circumstance as the Title VII claim, the claims are distinct from Plaintiff’s claim for employment discrimination and therefore are not precluded by Title VII”).  In addition, one appellate court has held that a federal employee is not preempted from bringing a RFRA claim against another agency (not his employer) to challenge that agency’s action interfering with employment.  See, e.g., Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) (allowing employee’s RFRA claim to proceed against agency that enforced building security regulations and denied her permission to enter building while wearing a kirpan).

[122]   See, e.g., Hobby Lobby, 573 U.S. at 733 (rejecting “the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction” under RFRA, and stating that the decision “provides no such shield”); EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 589-97 (6th Cir. 2018) (holding that EEOC’s enforcement of Title VII did not violate RFRA), aff’d on other grounds sub nom. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020); EEOC v. Preferred Mgmt. Corp., 216 F. Supp. 2d 763, 810-11 (S.D. Ind. 2002) (holding under RFRA that “even if the EEOC had substantially burdened [the employer’s] religious beliefs or practices in prosecuting this matter, its conduct still comports with the RFRA’s mandates [because] [t]here is a ‘compelling government interest’ in creating such a burden [–] the eradication of employment discrimination based on the criteria identified in Title VII, including religion” – and “the intrusion is the least restrictive means that Congress could have used to effectuate its purpose”); see also Bostock, 140 S. Ct. at 1753-54 (holding that discrimination based on sexual orientation or transgender status is actionable under Title VII’s sex discrimination prohibition, but declining to address how an employer’s religious convictions about sexual orientation or transgender status are protected under Title VII’s statutory religious organization exception, RFRA, or the First Amendment’s ministerial exception, noting that how doctrines “protecting religious liberty interact with Title VII are questions for future cases”); Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (holding that the compelling governmental interest in eradicating racial discrimination in education substantially outweighed the burden of denying tax exempt status under 26 U.S.C. § 501(c)(3) to a religious university that engage in race discrimination).

[123] Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 281 (3d Cir. 2001) (explaining that prima facie case and evidentiary burdens of an employee alleging religious discrimination mirror those of an employee alleging race or sex discrimination).  A disparate impact analysis could also apply in the religion context, particularly in the area of recruitment and hiring, or with respect to dress codes or other facially neutral rules.  See, e.g., Barrow v. Greenville Indep. Sch. Dist., 480 F.3d 377 (5th Cir. 2007) (affirming summary judgment, citing lack of statistical evidence for employer on Title VII claim brought by teacher who asserted policy favoring teachers whose children attended the public schools had a disparate impact on those whose children attended private school for religious rather than secular reasons); Muhammad v. N.Y. City Transit Auth., 52 F. Supp. 3d 468, 485-88 (E.D.N.Y. 2014) (holding that disparate impact religious discrimination claim could proceed where policy of transferring to non-driver positions those with objections to the headwear portion of employer’s uniform policy disproportionately affected Muslim employees, employer’s desire to maintain customer comfort and boost employee morale did not amount to a legitimate business necessity for its transfer practice, and availability of a less restrictive alternative could be proven from employer’s own prior practice of permitting drivers to wear khimars as long as they matched their uniforms); Jenkins v. N.Y. City Transit Auth., 646 F. Supp. 2d 464, 470-71 (S.D.N.Y. 2009) (holding that Pentecostal employee stated a claim under Title VII for disparate impact based on religion challenging dress code requiring female bus operators to wear pants rather than long skirts).  However, because the reasonable accommodation/undue hardship analysis is usually used when a neutral work rule adversely affects an employee’s religious practice, see infra § 12-IV, disparate impact analysis is seldom used in religion cases.

[124]   See 42 U.S.C. § 2000e-3(b).

[125] Id.; 42 U.S.C. § 2000e-2(e)(1); see also infra §§ 12-I-C, 12-II-D.

[126] See, e.g., Patterson v. Ind. Newspapers Inc., 589 F.3d 357, 365 (7th Cir. 2009) (ruling that plaintiff may proceed on a claim that “her supervisors, though also Christian, did not like her brand of Christianity,” because “[t]he issue is whether plaintiff’s specific religious beliefs were a ground for” an adverse employment action); Preferred Mgmt. Corp., 216 F. Supp. 2d at 813 (finding evidence raised a reasonable inference that failure to hire was based on religion where applicant was told “[y]ou damned humanists are ruining the world” and will “burn in hell forever”).

[127]   It is not an unlawful employment practice for an employment agency to comply with an employer’s request for applicants of a particular religion “in those relatively rare instances where religion . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e)(1). i); see also supra §§ 12‑I‑C‑1, 12‑I‑C‑2 (discussing religious organization exemption and ministerial exception), 12‑II‑D (discussing BFOQ).

[128]   See EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (“An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. . . . If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII” absent an available defense or exemption); see also Commission Guidelines, 29 C.F.R. § 1605.3.

[129]   See 42 U.S.C. § 2000e-3(b).

[130]   See Abercrombie & Fitch Stores, Inc., 135 S. Ct. at 2033 (holding Title VII prohibits failing to hire an applicant in order to avoid accommodating the applicant’s religious practice, whether or not the applicant informed the employer of the need for an accommodation).

[131]   See, e.g., Muhammad v. N.Y. City Transit Auth., 52 F. Supp. 3d 468, 485-87 (E.D.N.Y. 2014) (analyzing disparate impact claim arising from disproportionate effect of employer’s dress code provision on those wearing certain types of religious garb); Jenkins v. N.Y. City Transit Auth., 646 F. Supp. 2d 464, 470-71 (S.D.N.Y. 2009) (holding that Pentecostal employee stated a claim under Title VII for religion-based disparate impact when challenging dress code requiring female bus operators to wear pants rather than long skirts). 

[132] In Noyes v. Kelly Servs. Inc., 488 F.3d 1163, 1165 (9th Cir. 2007), the plaintiff alleged “reverse religious discrimination” when she was not promoted because she did not follow the religious beliefs of her supervisor and management, who were members of a small religious group and favored and promoted other members of the religious group.  The court ruled that while the employee did not adhere to a particular religion, the fact that she did not share the employer’s religious beliefs was the basis for the alleged discrimination against her, and the evidence was sufficient to create an issue for trial on whether the employer’s decision to promote another employee was a pretext for religious discrimination.  Id. at 1168-69.

[133] See, e.g., Campos v. City of Blue Springs, 289 F.3d 546 (8th Cir. 2002) (holding that evidence supported finding of religiously motivated constructive discharge based on plaintiff’s Native American spiritual beliefs); EEOC v. Univ. of Chi. Hosp., 276 F.3d 326 (7th Cir. 2002) (holding that evidence was sufficient to proceed to trial in case brought on behalf of recruiter alleging constructive discharge based on her evangelical religious beliefs); Altman v. Minn. Dep’t of Corr., 251 F.3d 1199, 1203 (8th Cir. 2001) (holding, in case raising both Title VII and First Amendment claims, that an employer may not discipline employees for conduct because it is religious in nature if it permits such conduct by other employees when not motivated by religious beliefs); Tincher v. Wal-Mart Stores, 118 F.3d 1125, 1131 (7th Cir. 1997) (holding a reasonable jury could conclude that employer’s articulated reason for the discharge of a Seventh-day Adventist was pretextual and that the real reason was religious discrimination because of the inconvenience caused by employee’s inability to work on Saturdays).  However, not all employer decisions affect a term, condition, or privilege of employment as required to be actionable as disparate treatment.  See, e.g., Goldmeier v. Allstate Ins. Co., 337 F.3d 629 (6th Cir. 2003) (holding a resignation 53 days prior to the effective date of an employer’s policy that would have posed conflict with employees’ religious beliefs did not constitute constructive discharge).

[134]   See Haji v. Columbus City Sch., 621 F. App’x 309 (6th Cir. 2015) (in case involving a school employee who violated the employer’s attendance policy by leaving early to attend a local mosque without signing out or obtaining permission to leave, holding that the plaintiff failed to present evidence that non-Muslims were treated more favorably, or other evidence supporting an inference of discrimination).

[135] Cf. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 71 (1986) (holding that a benefit “that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free . . . not to provide the benefit at all” (quoting Hishon v. King & Spalding, 467 U.S. 69, 75 (1984))).  However, at least one court has held that a private employer providing company resources to recognized employee “affinity groups” does not violate Title VII by denying this privilege to any group promoting or advocating any religious or political position, where the company excluded not only groups advocating a particular religious position but also those espousing religious indifference or opposition.  See Moranski v. Gen. Motors Corp., 433 F.3d 537 (7th Cir. 2005). 

[136] See Delelegne v. Kinney Sys., Inc., No. 02–11657–RGS, 2004 WL 1281071 (D. Mass. June 10, 2004) (holding that Ethiopian Christian parking garage cashier could proceed to trial on claims of religious harassment and discriminatory termination where he was not allowed to bring a Bible to work, pray, or display religious pictures in his booth, while Somali Muslim employees were permitted to take prayer breaks and to display religious materials in their booths). 

[137] This type of fact pattern also arises where there is no comparator.  See, e.g., Dixon v. Hallmark Cos., 627 F.3d 849 (11th Cir. 2010) (ruling that apartment complex property manager could proceed to trial on claim challenging termination for violating the employer’s religious displays policy by refusing to remove a poster of flowers with the words “Remember the Lilies . . . Matthew 6:28” she had hung in the on-site management office, where the employer also terminated the manager’s husband, telling him, “You’re fired too. You’re too religious.”  This fact pattern may also give rise to a denial of accommodation issue.  See infra § 12-IV-C-6. 

[138]   See infra § 12-III.

[139]   See infra § 12-IV.  As explained above, 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 to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”  42 U.S.C. § 2000e(j).

[140]   Determining whether religious expression disrupts coworkers or customers is discussed in §§ 12-III-C and 12‑IV-C-6, infra.  Additionally, in a government workplace, the First Amendment Free Exercise Clause and Establishment Clause may affect the employer’s or employee’s ability to restrict or engage in religious expression.  See supra § 12-I-C-3 (“Interaction of Title VII with the First Amendment and the Religious Freedom Restoration Act (RFRA)”); see also Federal Workplace Guidelines, supra note 119, §§ 2-B, 2-E (noting implications of RFRA for neutral rules that burden religion in the federal workplace).

[141]   However, there may be special circumstances where religion can be a bona fide occupational qualification for a particular position.  See infra § 12-II-D (discussing when religion can be a bona fide occupational qualification).  

[142] Cf. 42 U.S.C. § 2000e-2(g) (permitting covered entities to discharge or refuse to “hire and employ” or refer an individual who does not meet federal security requirements).  See infra § 12‑IV-B-5 (discussing security requirements and Title VII’s accommodation obligation).

[143] 42 U.S.C. § 2000e-2(e)(1).

[144] Compare Abrams v. Baylor Coll. of Med., 805 F.2d 528 (5th Cir. 1986) (holding that being non-Jewish was not a BFOQ for a university which had a contract to supply physicians on rotation at a Saudi Arabian hospital when the hospital presented no evidence to support its contention that Saudi Arabia would actually have refused an entry visa to a Jewish faculty member), and Rasul v. Dist. of Columbia, 680 F. Supp. 436 (D.D.C. 1988) (holding that Department of Corrections failed to demonstrate that Protestant religious affiliation was a BFOQ for position as prison chaplain because chaplains were recruited and hired on a facility-wide basis and were entrusted with the job of planning, directing, and maintaining a total religious program for all inmates, whatever their respective denominations), with Kern v. Dynalectron Corp., 577 F. Supp. 1196 (N.D. Tex. 1983) (holding that requirement that pilot convert to Islam was a BFOQ, where not based on a preference of contractor performing work in Saudi Arabia, but on the fact that non‑Muslim employees caught flying into Mecca would, under Saudi Arabian law, be beheaded), aff’d, 746 F.2d 810 (5th Cir. 1984).

[145]   42 U.S.C. § 2000e-2(a)(1).

[146]   Faragher v. Boca Raton, 524 U.S. 775, 786 (1998) (quotation marks and citations omitted).

[147]   Id.

[148]   Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).

[149]   Meritor Sav. Bank, 477 U.S. at 67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982) (alteration in Meritor)).

[150]   Meritor Sav. Bank, 477 U.S. at 66; see also Faragher, 524 U.S. at 786-88.

[151] Meritor Sav. Bank, 477 U.S. at 65.

[152] Id. at 66; see, e.g., Venters v. City of Delphi, 123 F.3d 956 (7th Cir. 1997) (holding that an employee who was terminated after she disagreed with supervisor’s religious beliefs raised a triable Title VII harassment claim based on two separate theories of harassment liability: that a supervisor conditioned a “tangible employment benefit” upon “adher[ing] to [her supervisor’s set of religious values,” and that the employer created a hostile work environment).

[153] See Martin v. Stoops Buick, Inc., No. 1:14-cv-00298-RLY-DKL, 2016 WL 2989037, at *6 (S.D. Ind. May 24, 2016) (denying summary judgment for employer where a reasonable juror could find that plaintiff’s termination was motivated by her refusal to continue reading the Bible with her manager); Scott v. Montgomery Cnty. Sch. Bd., 963 F. Supp. 2d 544, 553-57 (W.D. Va. 2013) (holding that a reasonable jury could find plaintiff’s rejection of her supervisor’s overtures, including declining her requests to join Bible study group, attend religious retreat, or begin each day with prayer before work, resulted in negative performance evaluations and then the non-renewal of her contract, even though the allegations did not establish a hostile work environment claim); Rice v. City of Kendallville, No. 1:07–CV–180–TS, 2009 WL 857463, at *8-9 (N.D. Ind. Mar. 31, 2009) (holding that discrimination could be found where plaintiff was terminated but her coworker, who engaged in same misconduct but attended their supervisor’s church, was not); see also Venters, 123 F.3d at 964 (holding that employee established that she was discharged on the basis of her religion after supervisor, among other things, repeatedly called her “evil” and stated that she had to share his Christian beliefs in order to be a good employee).

[154] Many of the example’s facts are taken from Sattar v. Motorola, Inc., 138 F.3d 1164 (7th Cir. 1998).  However, in Sattar the plaintiff alleged only discriminatory discharge, not harassment.  The court of appeals upheld summary judgment in favor of the employer, ruling that the employer had supplied sufficient evidence that it had discharged the plaintiff for deficient performance and poor leadership skills, and that the plaintiff had not supplied evidence that these reasons were pretext for religious discrimination.

[155]   Courts may come to different conclusions regarding whether job duties and religious beliefs conflict and, in turn, whether there is a duty to accommodate at all.  Compare Summers v. Whitis, No. 4:15-cv-00093-RLY-DML, 2016 WL 7242483, at *5-7 (S.D. Ind. Dec. 15, 2016) (holding that deputy county clerk terminated for refusing on religious grounds to process same-sex marriage licenses did not prove failure to accommodate because there was no conflict between her religious beliefs and her job duties, where the duties were purely administrative, and she was not required to perform or attend marriage ceremonies, personally issue licenses or certificates, say congratulations, offer a blessing, or express religious approval), with Slater v. Douglas Cnty., 743 F. Supp. 2d 1188, 1193-95 (D. Or. 2010) (holding that county clerk’s office employee could proceed with denial of accommodation and discriminatory termination claim arising from her religious refusal to process same-sex domestic partnership registration paperwork).

[156]   See Pedersen v. Casey’s Gen. Stores, Inc., 978 F. Supp. 926, 929 (D. Neb. 1997) (awarding relief following jury finding that employer’s refusal to accommodate employee’s need to have Easter day off, while knowing that she could not compromise her religious needs and where it would not have posed an undue hardship, amounted to constructive discharge in violation of Title VII); see also Venters, 123 F.3d at 972 (ruling that “the accommodation framework . . . has no application when the employee alleges that he was fired because he did not share or follow his employer’s religious beliefs”).

[157]   Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks and citation omitted).

[158] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); see also Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 443 (7th Cir. 2011) (stating the prima facie case of hostile work environment based on religion).

[159] See Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 189-91 (1st Cir. 2003) (“A constellation of factors led to the friction between Rosario and her coworkers, but no reasonable fact finder could conclude on the basis of the incidents we have described or the general atmosphere in the office that one of these factors was an antipathy towards Rosario”s underlying religious convictions.”); Marcus v. West, No. 99 C 0261, 2002 WL 1263999, at *11 (N.D. Ill. June 3, 2002) (finding that mistreatment of Sanctified Pentecostal Christian employee was not because of religion, where supervisor mistreated all of her employees and had poor management and interpersonal skills).

[160] See Rasmy v. Marriott Int'l, Inc., 952 F.3d 379, 387-88  & n.34 (2d Cir. 2020); Turner v. Barr, 811 F. Supp. 1, 3-4 (D.D.C. 1993) (finding that hostile environment was created where Jewish employee was subjected to a “joke” about the Holocaust, denied opportunity to work overtime, and ridiculed as a “turnkey,” even though the latter two incidents did not refer to religion, because the facts showed that he was singled out for such treatment because of his religion).

[161]   See EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-19 (4th Cir. 2008) (reversing summary judgment for the employer and remanding the case for trial because a reasonable fact finder could conclude that a Muslim employee who wore a kufi as part of his religious observance was subjected to hostile work environment religious harassment when fellow employees repeatedly called him “Taliban” and “towel head,” made fun of his appearance, questioned his allegiance to the United States, suggested he was a terrorist, and made comments associating all Muslims with senseless violence); EEOC v. WC&M Enters., Inc., 496 F.3d 393, 398-401 (5th Cir. 2007) (reversing summary judgment for the employer and remanding the case for trial because a reasonable fact finder could conclude that harassment initiated after September 11, 2001, against a car salesman who was born in India and was a practicing Muslim, was severe or pervasive and motivated by his national origin and religion); EEOC v. T-N-T Carports, Inc., No. 1:09–CV–27, 2011 WL 1769352, at *4 (M.D.N.C. May 9, 2011) (holding that evidence could show harassment was motivated by religious animosity where coworkers suggested employee, a devout Christian, belonged to a cult and was a devil worshipper; physically intimidated her while simultaneously using derogatory words about her religion; called her “crazy” about her religious beliefs; drew devil horns, a devil tail, and a pitchfork on her Christmas photo; used profanity followed by mock apologies; and cursed the Bible and teased about Bible reading).  In Sunbelt, the Fourth Circuit held: “we cannot regard as ‘merely offensive,’ and thus ‘beyond Title VII’s purview,’ Harris, 510 U.S. at 21, constant and repetitive abuse founded upon misperceptions that all Muslims possess hostile designs against the United States, that all Muslims support jihad, that all Muslims were sympathetic to the 9/11 attack, and that all Muslims are proponents of radical Islam.”  521 F.3d at 318.

[162] See Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 279 (3d Cir. 2001) (holding that supervisor criticizing professor’s refusal to work on her Sabbath, scheduling meetings on Jewish holidays, and charging her for leave on those holidays could be found to have “infected [professor’s] work experience” because of her religion).

[163] Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 784 (1st Cir. 1990); see Mahler v. First Dakota Title Ltd. P’ship, 931 F.3d 799, 806 (8th Cir. 2019) (“Harassing conduct is considered unwelcome if it was uninvited and offensive.”).

[164] In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993), the Court clarified that a complainant alleging a hostile work environment must establish not only that the alleged harassment was objectively hostile but also that she subjectively viewed the conduct as hostile.  Some courts continue to identify unwelcomeness as a separate element of a hostile work environment claim,  see, e.g., Maldonado-Cátala v. Municipality of Naranjito, 876 F.3d 1, 10 (1st Cir. 2017); Patton v. Jacobs Eng’g Grp., Inc., 874 F.3d 437, 445 (5th Cir. 2017), and other courts address unwelcomeness as part of assessing subjective hostility, stating that conduct that is subjectively hostile must also logically be unwelcome, see, e.g., Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 904 (7th Cir. 2018) (holding that because a reasonable jury could find that the conduct was unwelcome, there was an issue of material fact regarding subjective hostility); Kokinchak v. Postmaster Gen. of the U.S., 677 F. App’x 764, 767 (3d Cir. 2017) (treating unwelcomeness and subjective hostility as the same issue).

[165]   See WC&M Enters., 496 F.3d at 400-01 (finding religious and national origin harassment claim could be based on having been referred to as a “Muslim extremist” and constantly called “Taliban,” among other terms); Khan v. United Recovery Sys., Inc., No. H-03-2292, 2005 WL 469603, at *16-17 (S.D. Tex. Feb. 28, 2005) (finding religious harassment claim could be based on (1) alleged comments by coworker that court characterized as “malicious and vitriolic,” including that all Muslims are terrorists who should be killed, that he wished “all these Muslims were wiped off the face of the earth,” and that plaintiff might get shot for wearing an “Allah” pendant; (2) additional comments questioning plaintiff about what was being taught at her mosque and whether it was “connected with terrorists”; and (3) allegation that plaintiff’s supervisor placed newspaper articles on her desk about mosques in Afghanistan that taught terrorism, along with a note telling her to come into his office and justify such activity).

[166] See Venters v. City of Delphi, 123 F.3d 956, 976 (7th Cir. 1997) (holding that employee established comments were unwelcome where she made clear her objection to the comments once she told her supervisor he had “crossed the line”).  Complaints to family, friends, or coworkers may also indicate subjective hostility.  See, e.g., Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir. 1994).

[167] See Venters, 123 F.3d at 976.

[168] See Faragher, 524 U.S. at 787-88; Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 82-83 (1998) (“The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.”); Harris, 510 U.S. at 23; see also EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (evidence that coworkers repeatedly called the employee “Taliban” and “towel head” and made other negative comments related to being a Muslim was enough to overcome summary judgment on both the objective and subjective elements of the severe-or-pervasive test).

[169]   Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 83 (2d Cir. 2009).

[170]   Harris, 510 U.S. at 23.

[171]   Id.; see also Rasmy v. Marriott Int'l, Inc., 952 F.3d 379, 390 (2d Cir. 2020) (“Although the presence of physical threats or impact on job performance are relevant to finding a hostile work environment, their absence is by no means dispositive.”).

[172] See Johnson v. Spencer Press of Me., Inc., 364 F.3d 368 (1st Cir. 2004) (ruling that jury properly found hostile work environment where supervisor repeatedly insulted plaintiff, mocked his religious beliefs, and threatened him with violence); cf. Sattar v. Motorola, Inc., 138 F.3d 1164, 1167 (7th Cir. 1998) (Muslim supervisor barraged former Muslim employee with e-mails containing dire warnings of the divine punishments that awaited those who refuse to follow Islam).

[173] Harris, 510 U.S. at 21; Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).

[174] Harris, 510 U.S. at 22 (“[E]ven without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality . . . .  Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct.”); see also Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1454‑55 (7th Cir. 1994) (“[T]he mention in Harris of an unreasonable interference with work performance was not intended to penalize the employee who possesses the dedication and fortitude to complete her assigned tasks even in the face of offensive and abusive [conduct] . . . .  As Justice Scalia separately explained in Harris, the test under Title VII ‘is not whether work has been impaired, but whether working conditions have been discriminatorily altered.’”).

[175] See Harris, 510 U.S. at 23 (“Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances . . . . [N]o single factor is required.”).

[176] Faragher v. Boca Raton, 524 U.S. 775, 788 (1998) (citing Oncale, 523 U.S. at 80); see also (finding coworker’s conduct did not create a hostile work environment where coworker sang religious songs, quoted religious scripture, preached and spoke about Church and the Bible, referred to plaintiff as the devil an unspecified number of times over a six-month period, and informed plaintiff that she would go to Hell for not believing in Jesus Christ); Walker v. McCarthy, 582 F. App’x 6 (D.C. Cir. 2014) (ruling that plaintiff did not state a hostile work environment religion claim based on receipt of an invitation and emails regarding a coworker’s same-sex marriage); Sheikh v. Indep. Sch. Dist. 535, No. 00–1896DWFSRN, 2001 WL 1636504 (D. Minn. Oct. 18, 2001) (holding that a Muslim employee who was ostracized by colleagues because he refused to shake hands with female colleagues did not suffer a materially adverse change in the terms and conditions of employment).

[177] Compare  Garcimonde-Fisher v. Area203 Marketing, LLC, 105 F. Supp. 3d 825, 838-41 (E.D. Tenn. 2015) (ruling that owner’s cumulative actions may have amounted to “[o]verwhelming pressure to conform to a particular religion or sect,” where he decorated walls with Judeo-Christian artwork, biblical posters and Ten Commandments placards; distributed to employees materials with religious messages and solicitations for donations to overtly religious charities; played Christian movies on breakroom TV all day; employed a staff chaplain who hosted prayer meetings and Bible studies during work; and made comments to one plaintiff that being Catholic was not “the right kind of Christian”), with Alansari v. Tropic Star Seafood Inc., 388 F. App’x 902, 905 (11th Cir. 2010) (per curiam) (finding that solicitations to go to church because “Jesus would save” plaintiff, other comments about the plaintiff's Muslim religion, and the playing of Christian music on the radio did not amount to hostile work environment), DeFrietas v. Horizon Inv. & Mgmt. Corp., No. 2:06-cv-926, 2008 WL 204473, at *6 (D. Utah Jan. 24, 2008) (“Sporadic invitations to attend church with a coworker, while uncomfortable, do not constitute a hostile work environment.”), aff’d in part and rev’d in part on other grounds, 577 F.3d 1151 (10th Cir. 2009), Marcus v. West, No. 99 C 0261, 2002 WL 1263999, at *11 (N.D. Ill. June 3, 2002) (finding that asking a very religious employee to swear on a Bible to resolve differences with a colleague and telling her that people did not like her “church lady act” were isolated incidents that were not severe or pervasive enough to create a hostile work environment), and Sublett v. Edgewood Universal Cabling Sys., Inc., 194 F. Supp. 2d 692, 703 (S.D. Ohio 2002) (finding supervisor’s single comment to Rastafarian employee that those “dread things” made him look too “radical” was not sufficiently severe to create a hostile environment).

[178] Cf. Tessler v. KHOW Radio, Inc., No. 95–B–2414, 1997 WL 458489, at *8 (D. Colo. Apr. 21, 1997).

[179]   Cf. Brown v. Polk Cnty., 61 F.3d 650, 656‑57 (8th Cir. 1995) (en banc) (holding that it did not pose an undue hardship for employer to accommodate supervisor’s sporadic and voluntary prayers during workplace meetings).

[180] See, e.g., EEOC v. Prospect Airport Servs., Inc., 621 F.3d 991, 1000 (9th Cir. 2010) (explaining that “[t]he “required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct” (alteration in original)); Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 119 (2d Cir. 2010) (“[A] plaintiff need not show that her [work] environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered her working conditions.”); Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999) (explaining that in determining whether the alleged conduct rises to the level of severe or pervasive, a court should consider the factual “totality of the circumstances,” and that using a “holistic perspective is necessary, keeping in mind that each successive episode has its predecessors, the impact of the separate incidents may accumulate, and the work environment created thereby may exceed the sum of the individual episodes”); see also, e.g., Shanoff v. Ill. Dep’t of Hum. Servs., 258 F.3d 696, 705 (7th Cir. 2001) (six instances of “rather severe” harassment over four months were sufficient to allow a reasonable jury to rule in favor of plaintiff).

[181] See Hall v. City of Chi., 713 F.3d 325, 330 (7th Cir. 2013) (stating that “one extremely serious act of harassment could rise to an actionable level as could a series of less severe acts” (quoting Haugerud v. Amery Sch. Dist., 259 F.3d 678, 693 (7th Cir. 2001)); cf. Johnson v. Spencer Press of Me., Inc., 364 F.3d 368 (1st Cir. 2004) (in affirming the jury verdict for plaintiff on a religious harassment claim, court noted plaintiff’s testimony that a supervisor who made ongoing derogatory remarks about plaintiff’s religion also once put the point of a knife under plaintiff’s chin, in addition to threatening to kill him with a hand grenade, run him over with a car, and shoot him with a bow and arrow).

[182]   Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (“As several courts have recognized, . . . a single verbal (or visual) incident can . . . be sufficiently severe to justify a finding of a hostile work environment.”).

[183] See Peters v. Renaissance Hotel Operating Co., 307 F.3d 535, 552 (7th Cir. 2002) (holding that the combined impact of the comments directed at the employee and at others was not severe or pervasive enough to create a hostile work environment; “[M]any of the actions that [the employee] identifies were not directed at him . . . .  As ‘second-hand’ harassment, the impact of these incidents are ‘obviously not as great as the impact of harassment directed at the plaintiff.’” (quoting Russell v. Bd. of Trs. of Univ. of Ill. at Chi., 243 F.3d 336, 343 (7th Cir. 2001))).

[184]   See, e.g., Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 389 & n.44 (2d Cir. 2020) (reaching this conclusion and noting that the EEOC has long taken this position); Ellis v. Houston, 742 F.3d 307, 320-21 (8th Cir. 2014) (explaining that when offensive comments not directly made to plaintiff become known to plaintiff, “their relevance to claims of a hostile work environment is clear”); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811 (11th Cir. 2010) (en banc) (“[W]ords and conduct . . . may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff.”); Williams v. Gen. Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999) (overhearing “I’m sick and tired of these fucking women” could be “humiliating and fundamentally offensive to any woman in that work environment”).

[185]   Cf. Hawkins v. PepsiCo, Inc., 203 F.3d 274, 276 (4th Cir. 2000) (stating that “a routine difference of opinion” cannot support a hostile work environment claim); Sunbelt Rentals, Inc., 521 F.3d at 315 (4th Cir. 2008)  (“[E]ven incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.”); see also Chinery v. American Airlines, 778 F. App’x 142, 145-46 (3d Cir. 2019) (examining whether social media posts about workplace issues and the plaintiff created a hostile work environment, but determined that the conduct was not objectively severe or pervasive).  Social media posts that do involve the workplace can become part of a hostile work environment claim. See Roy v. Correct Care Sols., LLC, 914 F.3d 52, 63 n.4 (1st Cir. 2019) (“Furthermore, it is not clear at all that Facebook messages should be considered non-workplace conduct where, as here, they were about workplace conduct, including Dever's reports and rumors, and were sent over social media by an officer who worked in Roy's workplace.”).  In addition, an employee’s wearing religious garb in the workplace, or workplace religious decorations that do not demean or degrade other employees, or their religious views generally, would not, standing alone, constitute a hostile work environment.

[186]   See Faragher v. Boca Raton, 524 U.S. 775, 802-03 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759-60 (1998).

[187]   Ellerth, 524 U.S. at 758.

[188]   Faragher, 524 U.S. at 789-90.

[189]   For strict liability to apply to a constructive discharge claim, a supervisor’s tangible employment action must have precipitated the decision to quit.  Otherwise, the employer is entitled to raise the affirmative defense described above.  See Pa. State Police v. Suders, 542 U.S. 129, 146-50 (2004).

[190]   Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.

[191]   See, e.g., Chavez v. Colo. Dep’t of Educ., 244 F. Supp. 3d 1106, 1128 (D. Colo. 2017) (ruling that because employer took adequate action to address plaintiff’s complaints that she was being pressured and treated unfairly by her supervisor for refusing to continue attending the supervisor’s Bible study and other church activities, plaintiff could not prevail on harassment claim).

[192]   See Vance v. Ball State Univ., 570 U.S. 421, 448-49 (2013) (noting that a complainant can establish employer liability, even when “a harasser is not a supervisor,” “by showing that [the] employer was negligent in failing to prevent harassment from taking place”).

[193] See Ellerth, 524 U.S. at 762; Faragher, 524 U.S. at 788; Hafford v. Seidner, 183 F.3d 506, 513 (6th Cir. 1999); cf. Guidelines on Discrimination Because of National Origin, 29 C.F.R. § 1606.8(d) (stating employer is liable for coworker harassment on the basis of national origin when it knew or should have known of the conduct and failed to take immediate and appropriate corrective action); id. § 1604.11(e) (sexual harassment).

[194]   Cf. Powell v. Yellow Book USA, Inc., 445 F.3d 1074, 1078 (8th Cir. 2006) (finding that employer was not liable for religious harassment of plaintiff because, upon learning of her complaints about a coworker’s proselytizing, the employer promptly held a meeting and told the coworker to stop discussing religion matters with plaintiff, and there was evidence that the company continued to monitor the situation to ensure that the coworker did not resume her proselytizing).

[195] Compare Erickson v. Wisconsin Dep’t of Corr., 469 F.3d 600, 608 (7th Cir. 2006) (discussing female employee’s Title VII action against prison employer based on harassment by male inmates; ruling that “a reasonable jury could have found that, after [the employee’s] discussion with her supervisors . . . , [prison] had enough information to make a reasonable employer think there was some probability that [the employee] was being sexually harassed, yet took no remedial action as it was obligated to do under Title VII” (quotation marks and citations omitted)), with Berry v. Delta Airlines, Inc., 260 F.3d 803 (7th Cir. 2001) (finding that employer was not liable for alleged sexual harassment of its female employee by a male contractor because it promptly investigated the allegations, requested a change in the contractor’s shift so that he would not have contact with the employee, and asked that all contractors be required to view sexual harassment training video).  Cf. Commission Guidelines, 29 C.F.R. § 1604.11(e), 1606.8(e).

[196] See EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 621 (9th Cir. 1988) (“Where the religious practices of employers . . . and employees conflict, Title VII does not, and could not, require individual employers to abandon their religion.  Rather, Title VII attempts to reach a mutual accommodation of the conflicting religious practices.”); cf. Burwell v. Hobby Lobby, Stores, Inc., 573 U.S. 682, 702 (2014) (rejecting court’s holding below that, unlike nonprofit corporations, “for-profit, secular corporations cannot engage in religious exercise”) (RFRA).

[197]   See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 607 (9th Cir. 2004) (“[A]n employer need not accommodate an employee’s religious beliefs if doing so would result in discrimination against his coworkers or deprive them of contractual or other statutory rights.”).

[198] Id.

[199] See Ervington v. LTD Commodities, LLC, 555 F. App’x 615, 618 (7th Cir. 2014) (upholding discharge for employee’s continuing, after warning, to violate company’s anti-harassment policy by distributing religious pamphlets that denigrated other religions); Bodett v. CoxCom, Inc., 366 F.3d 736, 745-46 (9th Cir. 2004) (ruling that supervisor’s harassment of subordinate in violation of employer’s anti-harassment policy was a legitimate nondiscriminatory reason for termination, even if the violations were motivated by the supervisor’s religious beliefs).

[200]   Smith v. City of Phila., 285 F. Supp. 3d 846, 854 (E.D. Pa. 2018).

[201]   See Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 133 (1st Cir. 2004) (“Under Title VII, an employer must offer a reasonable accommodation to resolve a conflict between an employee's sincerely held religious belief and a condition of employment, unless such an accommodation would create an undue hardship for the employer’s business.”); Weathers v. FedEx Corp. Servs., Inc., No. 09 C 5493, 2011 WL 5184406, at *11 (N.D. Ill. Nov. 1, 2011) (ruling that employee’s request for clarification of an employer “letter of counseling” instructing that his discussions of religion with coworkers “must cease” was a request for accommodation, and holding that an ongoing broad instruction not to discuss religion could be found to be an adverse action, because it left him “unable to exercise his religious belief and unable to discuss a subject of broad scope and of great importance to him” even if the conversation was initiated by others).

[202]   Cf. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (“Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices.  Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual. . . because of such individual’s’ ‘religious observance and practice.’” (alteration in original)).

[203] 42 U.S.C. § 2000e(j); Commission Guidelines, 29 C.F.R. § 1605.2(b).

[204]   Compare Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (interpreting Title VII “undue hardship” standard), with 42 U.S.C. § 12111(10)(A) (defining ADA “undue hardship” standard).  See infra § 12‑IV‑B.

[205]   Abercrombie & Fitch Stores, Inc., 135 S. Ct. at 2034.

[206]   See id. (“An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter.  But when an applicant requires an accommodation as an ‘aspec[t] of religious . . . practice,’ it is no response that the subsequent ‘fail[ure] . . . to hire’ was due to an otherwise-neutral policy.” (alterations in original)).

[207] Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 136 (3d Cir. 1986) (citation omitted); see also id. (“This is . . . part of our ‘happy tradition’ of avoiding unnecessary clashes with the dictates of conscience.”) (citation omitted); cf. Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 146 (1987) (explaining that, under the Free Exercise Clause of the First Amendment, the government “may not force an employee ‘to choose between following the precepts of her religion and forfeiting benefits, . . . and abandoning one of the precepts of her religion in order to accept work’” (citation omitted) (alteration in original)).

[208]   Hardison, 432 U.S. at 84. 

[209]   Furthermore, if companies are interested in expressing their views on social issues and having their employees convey the company’s views, the issue of religious accommodation could arise to the extent an employee believes that a message the employer would like the employee to convey violates the employee’s religious beliefs.  For example, if a company has a policy that all employees in its retail stores must wear shirts conveying messages celebrating LGBTQ Pride in the month of June, or that requires employees to say “Jesus is our Savior” when answering the phone during the Christmas season, the company may have an obligation to accommodate employees who cannot convey these messages because of religious beliefs.

[210]   See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68 (1980) (“The employer violates the statute unless it ‘demonstrates that [it] is unable to reasonably accommodate . . . an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.’”); Hardison, 432 U.S. at 74 (“[T]he employer’s statutory obligation to make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship, is clear.” ); cf. Abercrombie & Fitch Stores, Inc., 135 S. Ct. at 2033-34 (“[R]eligious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated.”).

[211]   See 42 U.S.C. § 2000e-2(a)(1) (making it unlawful “to discriminate against any individual with respect to his. . . terms, conditions, or privileges of employment, because of such individual’s . . . religion”).

[212]   Compare Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 765 (3d Cir. 2004) (“An employer’s failure to reasonably accommodate an employee’s sincerely held religious belief that conflicts with a job requirement can also amount to an adverse employment action unless the employer can demonstrate that such an accommodation would result in ‘undue hardship.’”), EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614 n.5 (9th Cir. 1988) (“The threat of discharge (or other adverse employment practices) is a sufficient penalty.  An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.” (internal citation omitted)), and Rodriguez v. City of Chi., No. 95-C-5371, 1996 WL 22964, at *3 (N.D. Ill. Jan. 12, 1986) (“It is nonsensical to suggest that an employee who, when forced by his employer to choose between his job and his faith, elects to avoid potential financial and/or professional damage by acceding to his employer’s religiously objectionable demands has not been the victim of religious discrimination.”), with Brooks v. City of Utica, 275 F. Supp. 3d 370, 378 (N.D.N.Y. 2017) (“[U]nrealized threats do not constitute adverse employment actions.”).  See generally Reed v. UAW, 569 F.3d 576, 580 (6th Cir. 2009) (stating that because plaintiff has not shown any material adverse action, his reasonable accommodation claim fails, however, “an employee who believes that he is being treated less favorably because of his religion or some other protected ground has the right to bring a disparate treatment claim.”); Mohammed v. Schneider Nat’l Carriers, Inc., No. 18-0642, 2018 WL 5634897, at *2-4 (W.D. Pa. Oct. 12, 2018) (magistrate judge report and recommendation) (reviewing cases), adopted, 2018 WL 5633994 (W.D. Pa. Oct. 31, 2018).

[213]   See Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996) (“[A] prima facie case under the accommodation theory requires evidence that [the employee] informed her employer that her religious needs conflicted with an employment requirement and asked the employer to accommodate her religious needs.”); Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir. 1978) (“Implicit within plaintiff’s prima facie case is the requirement that plaintiff inform his employer of both his religious needs and his need for an accommodation.”).

[214]   See, e.g., Dixon v. Hallmark Cos., 627 F.3d 849, 856 (11th Cir. 2010) (holding that employer was incorrect in arguing that employees’ accommodation claim failed because they did not expressly tell employer that they did not want to take down religious artwork because of their religion, reasoning that evidence of the employer’s awareness of the tension between its order to remove the artwork and the employees’ religious beliefs was sufficient to establish notice); Brown v. Polk Cnty., 61 F.3d 650, 654 (8th Cir. 1995) (en banc) (where plaintiff alleged that he was terminated based on his known religious activities, court held that employer had obligation to accommodate absent undue hardship even though plaintiff had never explicitly asked for a religious accommodation because employer’s “first reprimand related directly to religious activities by” plaintiff); id. (“An employer need have only enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.” (internal quotation marks and citation omitted)); Hellinger v. Eckerd Corp., 67 F. Supp. 2d 1359, 1363-64 (S.D. Fla. 1999) (ruling that notice was sufficient where employer learned of applicant’s religious objection to a particular practice when he contacted applicant’s former supervisor for a reference).

[215]   See supra note 210.

[216]   Abercrombie & Fitch Stores, Inc., 135 S. Ct. at 2033‑34 (holding that decision not to hire Muslim applicant because of assumed conflict between headscarf and company “Look Policy” violated Title VII’s prohibition that actions are not taken “with the motive of avoiding the need for accommodating a religious practice”).

[217] See Xodus v. Wackenhut Corp., 619 F.3d 683, 686-87 (7th Cir. 2010) (finding that district court did not clearly err in determining that employee had failed to put employer on sufficient notice because he only referenced his “beliefs” but did not say they were religious); Heller v. EBB Auto Co., 8 F.3d 1433, 1439 (9th Cir. 1993) (employee’s request for leave to participate in his wife’s religious conversion ceremony was sufficient to place employer on notice that this was pursuant to a religious practice or belief; an employer need have “only enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements”).

[218]   Cf. LaFevers v. Saffle, 936 F.2d 1117 (10th Cir. 1991) (holding that although not all Seventh-day Adventists are vegetarian, an individual adherent’s genuine religious belief in such a dietary practice warrants constitutional protection under the First Amendment); see Seshadri v. Kasraian, 130 F.3d 798, 800 (7th Cir. 1997) (holding that employee who seeks accommodation need not belong to an established church, “but a person who seeks to obtain a privileged legal status by virtue of his religion cannot preclude inquiry designed to determine whether he has in fact a religion”); Chrysler Corp. v. Mann, 561 F.2d 1282, 1285 (8th Cir. 1977) (observing that the plaintiff “did little to acquaint Chrysler with his religion and its potential impact upon his ability to perform his job”); see also Redmond, 574 F.2d at 902 (noting that “an employee who is disinterested in informing his employer of his religious needs ‘may forego the right to have his beliefs accommodated by his employer’” (citation omitted)).

[219]   See, e.g., Toronka v. Cont’l Airlines, Inc., 649 F. Supp. 2d 608, 611-12 (S.D. Tex. 2009) (holding in Title VII case that a moral and ethical belief in the power of dreams that is based on religious convictions and traditions of African descent is a religious belief, and that this determination does not turn on veracity but rather is based on a theory of “‘man’s nature or his place in the Universe,’” even if considered by others to be “eccentric” (quoting Brown v. Dade Christian Schs., Inc., 556 F.2d 310, 324 (5th Cir. 1977) (Roney, J., dissenting); Cooper v. Gen. Dynamics, 533 F.2d 163, 168-69 (5th Cir. 1976))); cf. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (holding that although animal sacrifice may seem “abhorrent” to some, Santeria is religious in nature and is protected by the First Amendment); Thomas v. Rev. Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 714 (1981) (ruling that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection”); United States v. Meyers, 906 F. Supp. 1494, 1499 (D. Wyo. 1995) (relying on First Amendment jurisprudence to observe in Religious Freedom Restoration Act case that “one man’s religion will always be another man’s heresy”).  

[220] See Cary v. Carmichael, 908 F. Supp. 1334, 1344 (E.D. Va. 1995) (holding no religious discrimination where employee failed to give employer proper notice so that it could attempt an accommodation of his religious objection to signing consent form for a drug test), aff’d sub nom, 116 F.3d 472 (4th Cir. 1997) (unpublished table decision); see also Elmenayer v. ABF Freight Sys., No. 98-CV-4061 (JG), 2001 WL 1152815, at *5 (E.D.N.Y. Sept. 20, 2001) (holding that employer was not liable for disciplining an employee for tardiness where the employee failed – until after his discharge – to explain that tardiness was because he attended a prayer service), aff’d on other grounds, 318 F.3d 130 (2d Cir. 2003). 

[221] Notwithstanding the different legal standards for determining when a failure to accommodate poses an undue hardship under Title VII and the ADA, see supra notes 5 and 6, courts have endorsed a cooperative information-sharing process between employer and employee for religious accommodation requests, similar to the “interactive process” used for disability accommodation requests under the ADA.  See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 69 (1986) (explaining that “bilateral cooperation is appropriate in the search for an acceptable reconciliation of the needs of the employee’s religion and the exigencies of the employer’s business.” (internal quotation marks and citation omitted)); see also Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1155 n.5 (10th Cir. 2000) (stating that “[t]he [ADA] ‘interactive process’ rationale is equally applicable to the obligation to offer a reasonable accommodation to an individual whose religious beliefs conflict with an employment requirement”).

[222]  See, e.g., EEOC v. Arlington Transit Mix, Inc., 957 F.2d 219, 222 (6th Cir. 1991) (“After failing to pursue [a voluntary waiver of seniority rights] or any other reasonable accommodation, the company is in no position to argue that it was unable to accommodate reasonably [plaintiff’s] religious needs without undue hardship on the conduct of its business.”); EEOC v. Ithaca Indus., Inc., 849 F.2d 116, 118-19 (4th Cir. 1988) (finding that employer’s failure to attempt to accommodate, absent any showing of undue hardship, violated Title VII).

[223] Ansonia Bd. of Educ., 479 U.S. at 68-69 (holding that an employer could satisfy its obligation by offering an alternative reasonable accommodation to the particular one proposed by the employee); Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 146 (5th Cir. 1982) (explaining that an “employee has a correlative duty to make a good faith attempt to satisfy his needs through means offered by the employer” and that a “reasonable accommodation need not be on the employee’s terms only” before concluding that the employee failed to fully explore shift swaps proposed by his employer); Chrysler Corp. v. Mann, 561 F.2d 1282, 1286 (8th Cir. 1977) (where employee “will not attempt to accommodate his own beliefs through the means already available to him or cooperate with his employer in its conciliatory efforts, he may forego the right to have his beliefs accommodated”).

[224] See supra §§ 12‑I‑A‑2 (“Sincerely Held”), 12‑I‑A‑3 (“Employer Inquiries into Religious Nature or Sincerity of Belief”); see also Adeyeye v. Heartland Sweeteners, LLC, 721 F.3d 444, 451 (7th Cir. 2013) (“If the managers who considered the request had questions about whether the request was religious, nothing would have prevented them from asking [the employee] to explain a little more about the nature of his request . . . . [The] law leaves ample room for dialogue on these matters.”); Vinning-El v. Evans, 657 F.3d 591, 594 (7th Cir. 2011) (noting, in a prison religious accommodation case, that where asserted religious belief differed significantly “from the orthodox beliefs of [prisoner’s] faith, . . . [s]uch a belief isn’t impossible, but it is sufficiently rare that a prison’s chaplain could be skeptical and conduct an inquiry to determine whether the claim was nonetheless sincere”); Dockery v. Maryville Acad., 379 F. Supp. 3d 704, 718-19 (N.D. Ill. 2019) (holding that employer had objective basis for questioning whether employee sincerely believed that it was against his religion to work during Sabbath, where employee previously was willing to do so, employee himself testified that he told employer he could not work on Friday and Saturdays “because he was ‘used to’ and ‘accustomed to’ having those days off ‘to be able to worship with [his] family and do different things with [his] family,’” and employee failed to explain or provide more information to employer as requested).

[225] See Bushouse v. Loc. Union 2209, 164 F. Supp. 2d 1066, 1078 & n.18 (N.D. Ind. 2001) (holding that union’s refusal to provide accommodation unless employee produced independent corroboration that his accommodation request was motivated by a sincerely held religious belief did not violate Title VII’s religious accommodation provision, but cautioning that the holding was limited to “the facts and circumstances of the present case” and that “[t]he inquiry [into sincerity] and the scope of that inquiry will necessarily vary based upon the individual requesting corroboration and the facts and circumstances of the request”).

[226]   See United States v. Broyles, 423 F.2d 1299, 1302 (4th Cir. 1970) (letter from retired Army officer who had known conscientious objector for more than twenty years, and letter from college president who had known him for more than ten years, were “[i]mpressive backing” for his claims of sincere religious belief).

[227]   See Ansonia Bd. of Educ., 479 U.S. at 70 (referring to reasonable accommodation as one that “eliminates the conflict between employment requirements and religious practices”); see also, e.g., EEOC v. Ilona of Hungary, Inc., 108 F.3d 1569 (7th Cir. 1997) (ruling that employer did not satisfy reasonable accommodation requirement by offering to let Jewish employees take off a day other than Yom Kippur, because that would not eliminate the conflict between religion and work); Opuku-Boateng v. California, 95 F.3d 1461, 1467 (9th Cir. 1996) (if negotiations between employer and employee “do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee’s proposal or demonstrate that it would cause undue hardship were it to do so”); Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir. 1994) (“If the employer’s efforts fail to eliminate the employee’s religious conflict, the burden remains on the employer to establish that it is unable to reasonably accommodate the employee’s beliefs without incurring undue hardship.”); EEOC v. Universal Mfg. Corp., 914 F.2d 71, 72 (5th Cir. 1990) (per curiam) (district court “erred in ruling that, absent a showing of undue hardship by an employer, accommodating only one of the two practices of the employee’s religion, both of which conflicted with the employee’s work duties, satisfied as a matter of law the duty of ‘reasonable accommodation’”); Baker v. Home Depot, 445 F.3d 541, 547-48 (2d Cir. 2006) (“[T]he shift change offered to Baker was no accommodation at all because, although it would allow him to attend morning church services, it would not permit him to observe his religious requirement to abstain from work totally on Sundays.”); cf. US Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002) (in context of Americans with Disabilities Act, “the word ‘accommodation’ . . . conveys the need for effectiveness”).

Some courts of appeals have appeared to suggest that a reasonable accommodation need only lessen the conflict between religion and work, even in the absence of a showing that other accommodations would impose undue hardship.  But, in practice, even those courts have not applied a standard that is materially different from the one described above, and they take into account facts that the Commission and other courts would analyze as relevant only to undue hardship.  See, e.g., EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008) (analyzing reasonableness of proposed accommodation based in part on facts typically considered as part of undue hardship analysis); Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1030-33 (8th Cir. 2008) (rejecting jury instruction that described a reasonable accommodation as one must eliminate any work-religion conflict because  “[w]hat is reasonable depends on the totality of the circumstances and therefore might, or might not, require elimination of a particular, fact-specific conflict”).  The Commission believes its approach to this issue is straightforward and in keeping with the purpose of Title VII’s accommodation requirement.  Concerns about issues such as conflicts with a union contract or burdens on other employees’ settled expectations can and should be addressed in the context of evaluating whether an accommodation would impose an undue hardship.  Moreover, the employer need not grant an employee’s requested accommodation if the employer wishes instead to offer an alternative reasonable accommodation of its own choosing that also would eliminate the work-religion conflict and would not adversely affect the employee’s terms, conditions, or privileges of employment.

[228]   See, e.g., Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 168 (2d Cir. 2001) (holding that employer complied with Title VII when it granted partial accommodation—allowing proselytizing at certain times, not at all times, as requested—where employer could not allow additional proselytizing without “jeopardiz[ing] the state’s ability to provide services in a religion-neutral manner,” which the court apparently concluded would pose an undue hardship); Ilona of Hungary, Inc., 108 F.3d at 1576 (suggesting that if employer would suffer undue hardship from eliminating a religious conflict by granting a full day of leave to observe a religious holiday, the employer should still “offer a partial day off”).; 

[229]   See Ansonia Bd. of Educ., 479 U.S. at 70 (explaining that the accommodation of unpaid leave generally has “no direct effect upon either employment opportunities or job status” in the course of concluding that it would generally be reasonable, but emphasizing that “unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones” (first emphasis added) (internal quotation marks and citation omitted)); Adeyeye, 721 F.3d at 455 (not a reasonable accommodation to offer “voluntary self-termination with the possibility of being rehired”); Cosme v. Henderson, 287 F.3d 152, 160 (2d Cir. 2002) (stating that “an accommodation might be unreasonable if it imposes a significant work-related burden on the employee without justification”); Wright v. Runyon, 2 F.3d 214, 217 (7th Cir. 1993) (explaining that the question whether an accommodation is reasonable requires a “more searching inquiry” if an employee, “in order to accommodate his religious practices, had to accept a reduction in pay or some other loss of benefits”); Am. Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 776-77 (9th Cir. 1986) (holding employers must offer accommodations that “reasonably preserve th[e] employee’s . . . compensation, terms, conditions, or privileges of employment”); Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 519-20 (6th Cir. 1975) (ruling that where a transfer would adversely affect employee because, inter alia, it would involve a substantial reduction in pay, employer “first must attempt to accommodate the employee within his current job classification,” and transfer may be considered “as a last resort” only if “no such accommodation is possible, or if it would impose an undue hardship upon the employer”); see also Commission Guidelines, 29 C.F.R. § 1605.2(c)(2)(ii) (“[W]hen there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.”). 

[230] See Ansonia Bd. of Educ., 479 U.S. at 68 (“[W]here the employer has already reasonably accommodated the employee’s religious needs, the statutory inquiry is at an end.  The employer need not further show that each of the employee’s alternative accommodations would result in undue hardship.”); Rodriguez v. City of Chi., 156 F.3d 771, 776 (7th Cir. 1998) (employee is not entitled to his choice of reasonable accommodation); Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987) (same); cf. Opuku‑Boateng, 95 F.3d at 1475 (ruling that employer violated Title VII because it offered no accommodation, such as employee’s suggestions of scheduling him instead for other equally undesirable shifts, and employer did not show undue hardship). 

[231] See Ansonia Bd. of Educ., 479 U.S. at 70-71 (“unpaid leave is not a reasonable accommodation when paid leave is provided for all purposes except religious ones . . . [because] [s]uch an arrangement would display a discrimination against religious practices that is the antithesis of reasonableness”).  In cases involving requests for leave as an accommodation, an employer does not have to provide paid leave as an accommodation beyond that otherwise available to the employee but may have to provide unpaid leave as an accommodation if doing so would not pose an undue hardship.

[232] See Commission Guidelines, 29 C.F.R. § 1605.2(c)(2)(ii) (“[W]hen there is more than one means of accommodation which would not cause undue hardship, the employer or labor organization must offer the alternative which least disadvantages the individual with respect to his or her employment opportunities.”).  This principle is consistent with the Supreme Court’s holding in Ansonia Board of Education that an employer discharges its accommodation obligation by offering any accommodation that is reasonable. 479 U.S. at 68-69.  In reaching this conclusion, the Court observed that the EEOC guideline calling for employers to offer the accommodation that least disadvantages an individual’s employment opportunities (without undue hardship) is different from requiring an “employer to accept any alternative favored by the employee short of undue hardship.”  See id. at 69 n.6 (referring to 29 C.F.R. § 1605.2(c)(2)(ii)).  The Court emphasized that the guideline “contains a significant limitation,” calling for comparative analysis of accommodations only when an accommodation offered by an employer disadvantages employment opportunities.   Id. In the wake of Ansonia, many courts have, consistent with the Commission’s guidelines, evaluated whether employer accommodations had a negative impact on the individual’s employment opportunities as part of the analysis into whether the accommodations were “reasonable.”  See supra note 229 (citing cases).

[233] Pyro Mining Co., 827 F.2d at 1085 (quoting Redmond v. GAF Corp., 574 F.2d 897, 902‑03 (7th Cir. 1978)). 

[234]   Cf. Baker v. Home Depot, 445 F.3d 541, 547-48 (2d Cir. 2006) (finding that employer’s offer to schedule employee to work in the afternoon or evenings on Sundays, rather than the mornings, was not a “reasonable” accommodation under Title VII where employee’s religious views required not only attending Sunday church services but also refraining from work on Sundays).

[235] See Ansonia, 479 U.S. at 69 (employer is not required to offer employee’s preferred reasonable accommodation); Porter v. City of Chi., 700 F.3d 944, 951 (7th Cir. 2012) (same).

[236]   See infra note 278.

[237] See Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 226 (3d Cir. 2000) (finding that state hospital’s offer to transfer nurse laterally to newborn intensive care unit was reasonable accommodation for her religious beliefs which prevented her from assisting in emergency abortions of live fetuses,” where hospital had staffing cuts and concerns about risks to patients’ safety and nurse presented no evidence that transfer would affect her salary or benefits); see also Rodriguez v. City of Chi., 156 F.3d 771, 774 (7th Cir. 1998) (holding that city’s offer to allow police officer to exercise his right under collective bargaining agreement to transfer to a district with no abortion clinics, which would resolve his religious objection to being assigned to guard such facilities and would result in “no reduction in pay or benefits,” was a reasonable accommodation and observing that Title VII did not compel the employer to grant the officer’s preferred accommodation of remaining in his district but being relieved of such assignments); Wright v. Runyon, 2 F.3d 214, 217 (7th Cir. 1993) (finding that employer reasonably accommodated employee by suggesting he exercise his rights under collective bargaining agreement to bid on jobs that he would have been entitled to, that were “essentially equivalent” to his current position, and that would have eliminated the conflict between work and religion).

[238]   Federal conscience laws provide protections related to abortion and sterilization and include the Church Amendments (42 U.S.C. § 300a-7 et seq.), the Coats-Snowe Amendment (Section 245 of the Public Health Service Act, 42 U.S.C. § 238n), the Weldon Amendment (part of every HHS appropriations act since 2005), and Section 1553 of the Affordable Care Act (42 U.S.C. § 18113).  These laws are enforced by the Department of Health and Human Services (HHS).  For example, in 2019, HHS found that a university hospital violated the Church Amendments by discriminating against health care personnel who have religious or moral objections to participating in abortions when it scheduled and pressured them to assist with elective abortions despite specific and repeated requests not to be assigned to those procedures due to religious and moral objections.  See Letter from Roger T. Severino, Dir., Off. of Civ. Rts., Dep’t of Health & Hum. Svcs. & Luis E. Perez, Deputy Dir., Off. of Civ. Rts., Dep’t of Health & Hum. Svcs. (Aug. 28, 2019), (finding that the University of Vermont Medical Center unlawfully forced health care personnel, including nurses, to assist in abortions), https://www.hhs.gov/sites/default/files/uvmmc-nov-letter_508.pdf.  The Commission is referencing these laws for informational purposes and is not opining on any of their requirements or whether they would require additional burdens on employers beyond Title VII’s analysis for reasonable accommodation.

[239] Lawson v. Washington, 296 F.3d 799, 805 n.5 (9th Cir. 2002).

[240]   See supra notes 210-212 and accompanying text.

[241] See Cooper v. Oak Rubber Co., 15 F.3d 1375, 1379 (6th Cir. 1994) (holding that employer was obligated to accommodate a Seventh-day Adventist employee whose need for accommodation to observe Sabbath had changed in the 17 months since employer had last scheduled her to work on a Friday night or Saturday, where her “undisputed testimony was that her faith and commitment to her religion grew during this time”).

[242] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).  The “more than a de minimis cost” Title VII undue hardship standard is lower than the ADA undue hardship standard, which requires employers to show that the accommodation would cause “significant difficulty or expense,” 42 U.S.C. § 12111(10)(A). 

[243]   The statute, at 42 U.S.C. § 2000e(j), and the Commission Guidelines, at 29 C.F.R. § 1605.2(b), require an employer to reasonably accommodate an employee’s or applicant’s religious beliefs and practices unless the “employer demonstrates”  that doing so would pose an undue hardship.  Even when courts have focused on reasonableness before looking at undue hardship, the employer still has the burden of persuasion on the undue hardship issue.  See, e.g., EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 315 (4th Cir. 2008); Sturgill v. United Parcel Serv., Inc., 512 F.3d 1024, 1033 n.4 (8th Cir. 2008).

[244] Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981) (internal quotation marks and citation omitted).

[245]   See Commission Guidelines, 29 C.F.R. § 1605.2(e).

[246] Compare Cooper, 15 F.3d at 1380 (finding that employee’s request not to be scheduled for Saturday work due to Sabbath observance posed undue hardship for employer because it would have required either hiring an additional worker or risking the loss of production), and Beadle v. Tampa, 42 F.3d 633, 637-38 (11th Cir. 1995) (finding that requiring police department to alter training program schedule to accommodate employee’s religious needs amounted to more than de minimis cost and thus an undue hardship because employee “would not have experienced the educational benefits of working with different training officers”), with Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 133-34 (3d Cir. 1986) (finding that employee’s request not to be scheduled for Saturday work due to Sabbath observance did not pose undue hardship where district court found that that efficiency, production, and quality would be not affected and entire assembly line remained intact notwithstanding employee’s Saturday absences).

[247] See Tabura v. Kellogg USA, 880 F.3d 544, 558 (10th Cir. 2018) (reversing summary judgment for employer where it “did not . . . cite to any evidence to support its assertions” that accommodating plaintiffs’ need to observe their Sabbath would impose an undue hardship “in the form of unauthorized overtime, quality control issues, and even forcing entire lines to shut down”); Brown v. Gen. Motors Corp., 601 F.2d 956, 960 (8th Cir. 1979) (holding that “projected ‘theoretical’ future effects cannot outweigh the undisputed fact that no monetary costs and de minimis efficiency problems were actually incurred during the three month period in which [employee] was accommodated”); Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir. 1981) (undue hardship requires “proof of actual imposition on coworkers or disruption of the work routine” rather than “conceivable or hypothetical hardships” (internal quotation marks and citation omitted)); Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1492 (10th Cir. 1989) (“Any proffered hardship . . . must be actual,” not speculative).

[248] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977); see also Commission Guidelines, 29 C.F.R. § 1605.2(e)(1).

[249]   EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 616 (9th Cir. 1988) (quoting Anderson v. Gen. Dynamic, 589 F.2d 397, 402 (9th Cir. 1978)) (alteration in original).

[250]  Commission Guidelines, 29 C.F.R. § 1605.2(e)(1). 

[251] Id.  For example, in Hardison, the payment of overtime (or premium pay) to another employee so that plaintiff could be off for weekly religious observance was an undue hardship.  432 U.S. at 68-69, 84.  By contrast, infrequent payment of premium wages for an occasional religious observance is not “more than de minimis.”  See, e.g., EEOC v. Sw. Bell Tel. LP, No. 3:06CV00176 JLH, 2007 WL 2891379, at *4 (E.D. Ark. Oct. 3, 2007) (denying summary judgment for employer on claim by two employees that they were improperly denied leave for annual religious observance that would have required company to pay overtime wages of approximately $220 each to two replacements, where facility routinely paid technicians overtime, employer failed to contact union about possible accommodation, and policy providing for only one technician on leave per day was not always observed, and there was no evidence that customer service needs actually went unmet on day at issue) (jury verdict for plaintiffs subsequently entered), appeal dismissed, 550 F.3d 704 (8th Cir. 2008); see also Redmond v. GAF Corp., 574 F.2d 897, 904 (7th Cir. 1987) (ruling that employer could not demonstrate that paying replacement worker premium wages would cause undue hardship because plaintiff would have been paid premium wages for hours at issue).

[252] See, e.g., Brown v. Polk Cnty., 61 F.3d 650, 655 (8th Cir. 1995) (en banc) (holding that allowing employee to assign secretary to type his Bible study notes posed more than de minimis cost because secretary would otherwise have been performing employer’s work during that time); see also Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134‑35 (3d Cir. 1986) (no undue hardship where “efficiency, production, quality and morale … remained intact during [employee’s] absence”).

[253]  See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 607 (9th Cir. 2004) (“[A]n employer need not accommodate an employee’s religious beliefs if doing so would result in discrimination against his coworkers or deprive them of contractual or other statutory rights.”); Virts v. Consol. Freightways Corp. of Del., 285 F.3d 508, 517-18 (6th Cir. 2002) (holding that trucking firm had no obligation under Title VII to accommodate a driver’s religious request for only male driving partners, where making assignments in this manner would have violated collective bargaining agreement).

[254]   See, e.g., EEOC v. GEO Grp., Inc., 616 F.3d 265, 273 (3d Cir. 2010) (“A religious accommodation that creates a genuine safety or security risk can undoubtedly constitute an undue hardship for an employer-prison.”).  However, an employer should not assume that it would pose an undue hardship to accommodate a religious practice that appears to conflict with a generally applicable safety requirement, but rather should assess whether an undue hardship is actually posed.  For example, there are existing religious exemptions to the government enforcement procedures of some safety requirements.  See, e.g., Occupational Safety & Health Admin., U.S. Dep’t of Lab., STD 1-6.5: Exemption for Religious Reason from Wearing Hard Hats (June 20, 1994), https://www.osha.gov/enforcement/directives/std-01-06-005 (exempting employers from citations for certain violations based on religious objection of employee, but providing for various reporting requirements).

[255] See, e.g., Bruff v. N. Miss. Health Serv., Inc., 244 F.3d 495, 501 (5th Cir. 2001) (requiring coworkers of plaintiff mental health counselor to assume disproportionate workload to accommodate plaintiff’s request not to counsel certain clients on religious grounds would involve more than de minimis cost); Bhatia v. Chevron USA, Inc., 734 F.2d 1382, 1384 (9th Cir. 1984) (per curiam) (holding that it would be undue hardship to reassign plaintiff’s share of potentially hazardous work to coworkers); EEOC v. BJ Servs. Co., 921 F. Supp. 1509, 1514 (N.D. Tex. 1995) (stating employer “was not required to deny other employees their vacation days so that they could work in place of [plaintiff]” and that cost of hiring an additional worker was more than de minimis).

[256] See, e.g., Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 830-31 (9th Cir. 1999) (holding that employer was not required to accommodate job applicant’s religiously based refusal to provide his social security number where employer sought it to comply with Internal Revenue Service and Immigration and Naturalization Service requirements). 

[257]   See infra note 266.

[258] Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 83 (1977) (holding employer “was not required by Title VII to carve out a special exception to its seniority system in order to help [employee] to meet his religious obligations” of observing the Sabbath and not working on certain specified religious holidays); Virts, 285 F.3d at 517-18 (holding trucking firm had no obligation under Title VII to accommodate a driver’s religious request for only male driving partners, where making assignments in this manner would have violated CBA); Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1153, 1156 (10th Cir. 2000) (holding that because seniority system in the CBA gave more senior employees first choice for job assignments, it would be an undue hardship for employer to grant employee’s accommodation request not to be scheduled to work on Saturdays); Mann v. Frank, 7 F.3d 1365, 1369-70 (8th Cir. 1993) (finding no violation of the duty to accommodate where the union refused the employer’s request to assign another worker to take plaintiff’s Saturday shift, which would have violated CBA’s provisions governing overtime).

[259]  See Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999) (holding that “the existence of a neutral seniority system does not relieve the employer of its duty to reasonably accommodate the religious beliefs of its employees, so long as the accommodation can be accomplished without disruption of the seniority system and without more than a de minimis cost to the employer”); EEOC v. Arlington Transit Mix, Inc., 957 F.2d 219, 222 (6th Cir. 1991) (“At a minimum, Arlington had an obligation to explore a voluntary waiver of seniority rights before terminating Taylor.  After failing to pursue this or any other reasonable accommodation, the company is in no position to argue that it was unable to accommodate reasonably his religious needs without undue hardship on the conduct of its business.”).

[260] See Commission Guidelines, 29 C.F.R. § 1605.2(e)(2); Antoine v. First Student, Inc., 713 F.3d 824, 840 (5th Cir. 2013) (holding that allowing employee to voluntarily swap shifts was not an undue hardship where CBA authorized employer-facilitated voluntary route changes).

[261]   Lee v. ABF Freight Sys., Inc., 22 F.3d 1019, 1023-24 (10th Cir. 1994) (holding that the employer satisfied its Title VII obligation when it suggested method by which driver would usually be able to work the number of trips each week required under the union contract prior to the Sabbath, and could often use vacation time on other occasions; employer was not required to grant driver’s request to skip assignments, which would then have to be worked by other drivers; his request to work less than other full-time drivers and reimburse employer for additional costs; or his request to transfer with no loss of seniority, which would violate its CBA, where the employer had sought but could not obtain a waiver from the union).

[262] See Brown v. Polk Cnty., 61 F.3d 650, 655 (8th Cir. 1995) (en banc) (holding that allowing employee to assign secretary to type his Bible study notes posed more than de minimis cost because secretary would otherwise have been performing employer’s work during that time); see also Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 134‑35 (3d Cir. 1986) (no undue hardship where “efficiency, production, quality and morale . . .  remained intact during [employee’s] absence”).

[263]   See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 607‑08 (9th Cir. 2004) (undue hardship for employer to accommodate employee’s religiously motivated posting of large signs in his cubicle which he “intended to be hurtful” and to demean and harass his coworkers); Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1021 (4th Cir. 1996) (undue hardship to accommodate “religious need” to send “personal, disturbing letters to [coworkers] accusing them of immorality”).

[264] See Opuku-Boateng v. California, 95 F.3d 1461, 1473 (9th Cir. 1996) (holding that mere complaints by other employees did not constitute undue hardship where employer failed to establish that accommodating employee’s religious holidays would have required more than de minimis cost or burden on coworkers).

[265]  Brown, 61 F.3d at 655 (“Undue hardship requires more than proof of some fellow-worker’s grumbling. . . .  An employer . . . would have to show . . . actual imposition on coworkers or disruption of the work routine.” (quoting Burns v. S. Pac. Transp. Co., 589 F.2d 403, 407 (9th Cir. 1978) (alterations in original)).

[266]   There may be different results depending on the specific setting and the religious garb at issue.  See, e.g., United States v. Essex Cnty., No. 09–2772 (KSH), 2010 WL 551393 (D.N.J. Feb. 16, 2010) (denying motion to dismiss, the court allowed the United States to proceed with denial-of-accommodation claim on behalf of Muslim employee of Essex County Department of Corrections who was denied accommodation of wearing her religious headscarf and terminated).  But see EEOC v. GEO Group, Inc., 616 F.3d 265, 273 (3d Cir. 2010) (rejecting EEOC’s claim that prison officials should have accommodated female Muslim employees by granting an exception to the dress code that would permit them to wear their khimars, but agreeing that there is no “per se rule of law about religious head coverings or safety,” even for police or paramilitary groups); Webb v. City of Phila., 562 F.3d 256, 260‑62 (3d Cir. 2009) (ruling that it would have posed an undue hardship to allow accommodation for a police officer who sought dress code exception to wear khimar); Finnie v. Lee Cnty., 907 F. Supp. 2d 750, 780‑81 (N.D. Miss. 2012) (ruling that evidence-supported safety concerns met burden of proving undue hardship would be posed by allowing religious exception to pants-only uniform policy for detention officers).

[267] The Commission Guidelines, 29 C.F.R. § 1605.2(d), set forth suggested methods of accommodating scheduling conflicts, but those methods are not intended to comprise an exhaustive list.  Different factual circumstances will require different solutions.  State wage and hour laws may provide certain limitations that affect an employer’s potential flexibility.

[268]   See supra notes 227-229 and accompanying text.

[269] See EEOC v. JBS USA, LLC, 339 F. Supp. 3d 1135, 1182-83 (D. Colo. 2018) (not undue hardship to allow short unscheduled prayer breaks because “the preponderance of the evidence showed that allowing unscheduled prayer breaks would not have more than a de minimis effect on productivity or safety”); Mohamed v. 1st Class Staffing, LLC, 286 F. Supp. 3d 884, 910 (S.D. Ohio 2017) (suggesting that allowing employees to take break either 15 minutes early or 15 minutes late so that they could have the break room to themselves to pray would not be an undue hardship).

[270]   Cf. Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 135 (3d Cir. 1986) (employer would not incur undue hardship from granting exception to mandatory Saturday overtime work for employee whose religious beliefs prevented her from working on her Sabbath, because employer did not have to pay higher wages to fill the vacancy).

[271]   Commission Guidelines, 29 C.F.R. 1605.2(d)(i), 

[272]   See, e.g., Beadle v. Hillsborough Cty. Sheriff’s Dep’t, 29 F.3d 589, 593 (11th Cir. 1994) (finding that employer satisfied its accommodation obligation by providing employee a roster with his coworkers’ schedules and allowing employee to make announcement on bulletin board and at employee meeting to seek out coworkers willing to swap).

[273] See Tabura v. Kellogg USA, 880 F.3d 544, 555-57 (10th Cir. 2018) (remanding to determine whether  employer satisfied its accommodation obligation by allowing employees to use paid leave and to seek volunteers to swap shifts to avoid working on their Sabbath, where employees had insufficient paid leave and plaintiffs had difficulty arranging voluntary swaps); McGuire v. Gen. Motors Corp., 956 F.2d 607, 608-10 (6th Cir. 1992) (per curiam) (remanding to determine whether employer satisfied its accommodation obligation by allowing employee to swap shifts to avoid working on his Sabbath where employee found it “virtually impossible” to arrange voluntary swaps).

[274]   See, e.g., Smith v. Pyro Mining Co., 827 F.2d 1081, 1088‑89 (6th Cir. 1987) (where plaintiff believed it was morally wrong to work on the Sabbath and that it was a sin to induce another employee to do so, it was not a reasonable accommodation for employer simply to be amenable to a shift swap; employer would not have incurred undue hardship by soliciting a replacement).

[275]   Commission Guidelines, 29 C.F.R. § 1605.2(e)(1); see also Redmond v. GAF Corp., 574 F.2d 897, 904 (7th Cir. 1978) (holding that employer could not demonstrate paying replacement worker premium wages would cause undue hardship because plaintiff would have been paid premium wages for the hours at issue); EEOC v. Sw. Bell Tel. LP, No. 3:06CV00176 JLH, 2007 WL 2891379, at *4 (E.D. Ark. Oct. 3, 2007) (finding that payment of premium wages for one day to allow two employees to attend yearly Jehovah’s Witness convention as part of their religious practice, at alleged cost of $220.72 per person in facility that routinely paid overtime, was not an undue hardship as a matter of law, where there was no evidence that customer service needs actually went unmet on the day at issue) (jury verdict for plaintiffs subsequently entered), appeal dismissed, 550 F.3d 704 (8th Cir. 2008).

[276]   See Noesen v. Med. Staffing Network, Inc., 232 F. App’x 581, 584-85 (7th Cir. 2007) (holding that employee’s proposed accommodation of assigning responsibility for all initial customer contact to lower-paid technicians, even if it could be done, would impose an undue hardship because it would divert technicians from their assigned data input and insurance verification duties, resulting in uncompleted data work); see also supra note 238 (discussing potential application of federal conscience protection laws to health care employees).

[277]   See Noesen, 232 F. App’x at 584.

[278] Commission Guidelines, 29 C.F.R. § 1605.2(d)(iii) (“When an employee cannot be accommodated either as to his or her entire job or an assignment within the job, employers and labor organizations should consider whether or not it is possible to change the job assignment or give the employee a lateral transfer.”); see Draper v. U.S. Pipe & Foundry Co., 527 F.2d 515, 519‑20 (6th Cir. 1975) (holding that transfer involving substantial reduction in pay and that would have “wasted [plaintiff’s] skills” would not be reasonable accommodation where plaintiff could have been accommodated in his original position without undue hardship).  But see Rodriguez v. City of Chi., 156 F.3d 771, 775 (7th Cir. 1998) (city’s offer of lateral transfer was a reasonable accommodation, and therefore court need not consider whether it would have been an undue hardship for city to accommodate plaintiff in his original position).

[279]    Commission Guidelines, 29 C.F.R. § 1605.2(d)(iii).

[280] See Cook v. Lindsay Olive Growers, 911 F.2d 233, 241 (9th Cir. 1990) (holding, under state law parallel to Title VII, that transfer of employee to a lower-level position was reasonable where no equivalent position was available after employer attempted to find one and where employee would make more money overall because employee would work five shifts rather than four); Draper, 527 F.2d at 519‑20 (holding that transfer involving substantial reduction in pay and that would have “wasted [plaintiff’s] skills” would not be reasonable accommodation where plaintiff could have been accommodated in his original position without undue hardship).

[281] See Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998) (“An employer may reassign an employee to a lower grade and paid position if the employee cannot be accommodated in the current position and a comparable position is not available.”) (ADA).  At least one court has ruled that it is unreasonable for public protectors such as police officers or fire fighters to seek to be relieved from certain assignments as a religious accommodation.  See Endres v. Ind. State Police, 349 F.3d 922, 927 (7th Cir. 2003) (holding that state police officer’s requested religious accommodation not to be assigned to full-time, permanent work at a casino was unreasonable, because police and fire departments “need the cooperation of all members” and need them to perform their duties “without favoritism”).  However, Title VII does not distinguish between public protectors and other employees; it is not per se unreasonable for public protectors to obtain changes in job assignments, schedule changes, or transfers in situations where a conflict between their job duties and their religious beliefs could be eliminated or reduced.  Title VII requires a fact-specific inquiry to determine whether granting a particular accommodation request would pose an undue hardship.  See Rodriguez, 156 F.3d at 775 (city provided reasonable accommodation by giving police officer with religious objection to guarding abortion clinic opportunity to seek lateral transfer to district without abortion clinics); .

[282]  See, e.g., Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 477 (7th Cir. 2001) (“In many cases, a company must modify its stated policies in practice to reasonably accommodate a religious practice.”  (citing Minkus v. Metro. Sanitary Dist., 600 F.2d 80 (7th Cir. 1979) (holding that municipal employer failed to accommodate a Jewish applicant when it followed its stated policy and scheduled civil service examinations only on Saturdays)).

[283] See, e.g., EEOC v. United Parcel Serv., 94 F.3d 314, 320 (7th Cir. 1996) (reversing grant of summary judgment for employer because genuine issue of material fact existed regarding whether employer reasonably accommodated employee’s religious practice of wearing beard).  See generally EEOC, Religious Garb and Grooming in the Workplace: Rights and Responsibilities (2014), www.​eeoc.​gov/​eeoc/​publications/​qa_religious_garb_grooming.​cfm. 

[284] See United Parcel Serv., 94 F.3d at 318‑20; cf. Daniels v. City of Arlington, 246 F.3d 500, 505-06 (5th Cir. 2001) (finding no Title VII violations when it would be an unreasonable accommodation and undue hardship for the police to be forced to let individual officers add religious symbols to their uniforms, and the plaintiff failed to respond to reasonable offers of accommodation).

[285]   See Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 136 (1st Cir. 2004) (holding that it would pose an undue hardship to require Costco to grant an exemption “because it would adversely affect the employer’s public image,” given Costco’s “determination that facial piercings . . . detract from the ‘neat, clean and professional image’ that it aims to cultivate”); cf. Brown v. F.L. Roberts & Co., 419 F. Supp. 2d 7, 17 (D. Mass. 2006) (stating it was bound to follow Cloutier as the law of the circuit and holding that no Title VII violation occurred when employer transferred lube technician whose Rastafarian religious beliefs prohibited him from shaving or cutting his hair to a location with limited customer contact because he could not comply with a new grooming policy, but observing in dicta: “If Cloutier’s language approving employer prerogatives regarding ‘public image’ is read broadly, the implications for persons asserting claims for religious discrimination in the workplace may be grave.  One has to wonder how often an employer will be inclined to cite this expansive language to terminate or restrict from customer contact, on image grounds, an employee wearing a yarmulke, a veil, or the mark on the forehead that denotes Ash Wednesday for many Catholics.  More likely, and more ominously, considerations of ‘public image’ might persuade an employer to tolerate the religious practices of predominant groups, while arguing ‘undue hardship’ and ‘image’ in forbidding practices that are less widespread or well known.”).

[286]   See EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2031, 2034 (2015) (recognizing, in case where the employer’s grooming policy prohibited “caps” as “too informal for [its] desired image,” that “Title VII requires otherwise-neutral policies,” such as a no-headwear dress code, “to give way to the need for an accommodation”).  Denying the employer’s motion for summary judgment in EEOC v. Red Robin Gourmet Burgers, Inc., No. C04–1291JLR, 2005 WL 2090677, at *5 (W.D. Wash. Aug. 29, 2005), the court ruled that notwithstanding the employer’s purported reliance on a company profile and customer study suggesting that it seeks to present a family-oriented and kid-friendly image, the company failed to demonstrate that allowing an employee to have visible religious tattoos was inconsistent with these goals.  “Hypothetical hardships based on unproven assumptions typically fail to constitute undue hardship. . . .  [The employer] must provide evidence of ‘actual imposition on coworkers or disruption of the work routine’ to demonstrate undue hardship.”  Id.

[287] See United States v. N.Y. City Trans. Auth., No. 04–CV–4237, 2010 WL 3855191, at *22 (E.D.N.Y. Sept. 28, 2010) (holding that pattern-or-practice claim could proceed on behalf of Muslim and Sikh bus drivers, train operators, and subway station agents alleging selective enforcement of city’s headwear policies and failure to accommodate Muslim and Sikh employees who could not comply for religious reasons); see also EEOC v. Am. Airlines, Civil Action No. 02-C-6172 (N.D. Ill.) (Order of Resolution filed September 3, 2002) (resolving claim on behalf of employee who was not hired as passenger service agent because she wore a hijab for religious reasons in violation of the airline’s since-changed uniform policy; the airline’s current uniform policy specifically contemplates exceptions for religious accommodation of employees); see also EEOC v. Alamo Rent-A-Car, LLC, 432 F. Supp. 2d 1006, 1015-17 (D. Ariz. 2006) (holding employer violated Title VII by instructing employee she would have to remove her religious garb whenever interacting with customers, and work in the back office when she wore it).

[288]   See Webb v. City of Phila., 562 F.3d 256, 260-62 (3d Cir. 2009) (holding that municipal employer established as a matter of law that it would pose an undue hardship to accommodate wearing of traditional religious headpiece called a khimar by Muslim police officer while in uniform, in contravention of the department’s dress code directive).  But cf. Fraternal Order of Police v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999) (explaining that police department’s interests in “fostering a uniform appearance through its ‘no-beard’ policy” and in security were undermined when it allowed officers to wear beards for medical reasons and holding that department’s refusal to allow officers also to wear beards for religious reasons violated the Free Exercise Clause).

[289] Cf. Federal Workplace Guidelines, supra note 119 § 1.C (“Accommodation of Religious Exercise”), example (d) (government workplaces that allow employees to use facilities for non-work-related secular activities generally are required to allow the privilege on equal terms for employee religious activities).

[290] See, e.g., Minkus v. Metro. Sanitary Dist., 600 F.2d 80, 81-82 (7th Cir. 1979); Cary v. Carmichael, 908 F. Supp. 1334, 1343-46 (E.D. Va. 1995) (holding that employee failed to give employer proper notice so that it could attempt an accommodation of his religious objection to signing consent form for a drug test), aff’d sub nom, 116 F.3d 472 (4th Cir. 1997).

[291] See, e.g., Minkus, 600 F.2d at 82-84 (holding that employer must demonstrate it would pose undue hardship to allow applicant to take exam at different time than others as a religious accommodation).

[292]   See, e.g., Yeager v. FirstEnergy Generation Corp., 777 F.3d 362, 363-64 (6th Cir. 2015) (per curiam) (holding that excusing employee from providing social security number was not required under Title VII because it would require employer to violate another federal law, without reaching issue of whether it constituted an undue hardship); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 830-31 (9th Cir. 1999) (holding that excusing employee from providing social security number would cause undue hardship because it would require violation of another federal law); Cherry v. Sunoco, Inc., No. 07–cv–2235, 2009 WL 2518221, at *7 (E.D. Pa. Aug. 17, 2009) (holding that it would have posed undue hardship on refinery operator to excuse photo identification requirement imposed on employer by U.S. Coast Guard regulations after exemption was denied); cf. Lizalek v. Invivo Corp., 314 F. App’x 881, 882 (7th Cir. 2009) (holding that it would pose an undue hardship to accommodate employee’s religious belief that he was exempt from any tax liability and could use multiple names on forms, in part because it would expose employer to potential IRS issues).

[293]   See, e.g., EEOC v. Consol Energy, Inc., 860 F.3d 131, 143 (4th Cir. 2017) (affirming judgment against employer that denied coal mine employee’s requested religious accommodation of alternative means to clock in and out when the company adopted a “biometric hand scanner” system that conflicted with his Christian faith, where the evidence showed employer had available an alternative clock-in system for miners who were physically incapable of scanning their hands, but failed to provide it as a religious accommodation), cert. denied, 138 S. Ct. 976 (2018).

[294] See Commission Guidelines, 29 C.F.R. § 1605.2(d)(2); Tooley v. Martin Marietta Corp., 648 F.2d 1239, 1242‑44 (9th Cir. 1981) (holding that a union could not force an employer, under a contractual union security clause, to terminate three Seventh-day Adventists who offered to pay an amount equivalent to dues to a nonreligious charity because union failed to show that such an accommodation would deprive it of funds needed for its maintenance and operation); EEOC v. Univ. of Detroit, 904 F.2d 331 (6th Cir. 1990) (remanding for determination whether employer could reasonably accommodate without undue hardship employee’s religious objection to associating with certain organizations); Burns v. S. Pac. Transp. Co., 589 F.2d 403, 406‑07 (9th Cir. 1978) (holding that allowing an equivalent charitable contribution in lieu of dues did not constitute undue hardship notwithstanding administrative cost to union and “grumblings” by other employees); Cooper v. Gen. Dynamics, 533 F.2d 163 (5th Cir. 1976) (holding that religious belief that supporting labor union violated the precept “to love” one’s neighbor, i.e., employers, was subject to reasonable accommodation absent undue hardship).

[295] See McDaniel v. Essex Int’l, Inc., 696 F.2d 34, 37-38 (6th Cir. 1982) (finding that employee’s proposal to donate amount equivalent to dues to a “mutually agreeable” charity was reasonable accommodation that would not have posed undue hardship); EEOC v. Am. Fed’n of State, Cty. & Mun. E’ees, 937 F. Supp. 166, 168 (N.D.N.Y. 1996) (holding that donation of shop fee to agreed-upon charity was reasonable accommodation for employee’s religious belief).  Some collective bargaining agreements have charities listed in them, pursuant to the requirements of section 19 of the National Labor Relations Act.  See 29 U.S.C. § 169.  At least one court has held that it may be inappropriate to require the religious objector to pay the full amount of the union dues to a charitable organization, however, if non-religious objectors are permitted to pay a reduced amount.  See O’Brien v. City of Springfield, 319 F. Supp. 2d 90 (D. Mass. 2003) (holding, in part, it was not a reasonable accommodation to require religious objector to pay full union dues where state statute permitted non-union members to pay a lower amount in form of agency fee).  But see Madsen v. Associated Chino Teachers, 317 F. Supp. 2d 1175, 1179 (C.D. Cal. 2004) (holding it was not disparate treatment under Title VII to require religious objectors to pay full amount of dues to charity where non-religious objectors were only paying agency fee to union).

[296] See Commission Guidelines, 29 C.F.R. § 1605.2(e); Nottelson v. Smith Steel Workers D.A.L.U. 19806, 643 F.2d 445, 450-51 (7th Cir. 1981) (holding that charity-substitute religious accommodation for union dues did not pose undue hardship to union where loss of plaintiff’s dues represented only .02% of union’s annual budget, and union presented no evidence that the loss of receipts from plaintiff would necessitate an increase in dues of his coworkers, that other workers would seem similar accommodations, or that the accommodation would lead to labor strife); see also Burns, 589 F.2d at 407 (holding that excusing employee from paying his monthly $19 union dues did not pose undue hardship, where one union officer testified that the loss “wouldn’t affect us at all” and union’s asserted fear of many religious objectors was based on mere speculation, but noting that if “in the future, the expressed fear of widespread refusal to pay union dues on religious grounds should become a reality, undue hardship could be proved”).

[297]   See Univ. of Detroit, 904 F.2d at 335.

[298] See Wilson v. U.S. W. Commc’ns, 58 F.3d 1337, 1341‑42 (8th Cir. 1995) (given disruption actually caused among coworkers in workplace, employer reasonably accommodated employee’s request to wear at all times a button containing a graphic photograph of a fetus with anti-abortion message by requiring her to cover up the photograph portion when she was at work); cf. EEOC v. Red Robin Gourmet Burgers, Inc., No. C04–1291JLR, 2005 WL 2090677, at *4‑5 (W.D. Wash. Aug. 29, 2005) (denying employer’s motion for summary judgment because issue of whether employee’s Kemetic religious wrist tattoos would disrupt work or otherwise pose an undue hardship raised a disputed factual question to be decided by jury).

[299]   Faragher v. Boca Raton, 524 U.S. 775, 802-03 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759-60 (1998); see Peterson v. Hewlett-Packard Co., 358 F.3d 599, 607 (9th Cir. 2004) (“[A]n employer need not accommodate an employee’s religious beliefs if doing so would result in discrimination against his coworkers or deprive them of contractual or other statutory rights.”).

[300] See Ervington v. LTD Commodities, LLC, 555 F. App’x 615, 616-18 (7th Cir. 2014) (in suit challenging discharge where plaintiff’s proselytizing violated the company’s anti-harassment policy because the religious pamphlets she distributed were offensive to her coworkers, ruling that the employer was not required to accommodate distribution of pamphlets that were offensive to other employees, and rejecting plaintiff’s argument that the harassment was not “unlawful” by noting that the statute “does not prohibit employers from enforcing an antiharassment policy that defines harassment more broadly than does Title VII”); Wilson, 58 F.3d at 1341-42 (holding that employer did not violate Title VII when it fired employee who refused to cover up a “graphic anti-abortion button” while at work; the court reasoned that plaintiff’s requested accommodation that the employer “simply instruct [her] coworkers that they must accept [the plaintiff]’s insistence on wearing a particular depiction of a fetus as part of her religious beliefs is antithetical to the concept of reasonable accommodation” denied certain accommodation options because of demonstrated disruption to coworkers because it had provided a reasonable option that would not be disruptive); Brown v. Polk Cnty., 61 F.3d 650, 656-57 (8th Cir. 1995) (en banc) (ruling employer did not establish that supervisor’s “occasional spontaneous prayers and isolated references to Christian beliefs” posed an undue hardship because, although the employer  asserted that the supervisor’s conduct had polarized employees along religious lines, it provided no evidence of “actual imposition on coworkers or disruption of the work routine”); Rightnour v. Tiffany & Co., 354 F. Supp. 3d 511, 525 (S.D.N.Y. 2019) (in suit challenging the plaintiff’s termination for poor performance and offensive religion-related comments she had made, explaining that “it does not constitute discrimination to discipline employees for making offensive comments in the workplace, even when those comments are tied to religion”); Averett v. Honda of Am. Mfg., Inc., No. 2:07–cv–1167, 2010 WL 522826, at *8‑10 (S.D. Ohio Feb. 9, 2010) (in suit challenging discipline and eventual termination of plaintiff for repeatedly making written and oral statements that her coworkers were sinful and evil people whom God would punish, explaining “Title VII does not require employer to allow an employee to impose her religious views on others” (internal quotation marks and citation omitted)). 

[301]   See  Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.

[302] See Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 476 (7th Cir. 2001) (holding that employer reasonably accommodated plaintiff’s religious practice of sporadically using the phrase “Have a Blessed Day” when it permitted her to use the phrase with coworkers and supervisors who did not object, but prohibited her from using the phrase with customers where at least one regular client objected; allowing her to use the phrase with customers who objected would have posed an undue hardship); see also Banks v. Serv. Am. Corp., 952 F. Supp. 703, 710-11 (D. Kan. 1996) (holding that plaintiff food service employees at company cafeteria, who were terminated when they refused to stop greeting customers with phrases such as “God Bless You” and “Praise the Lord,” presented a triable issue of fact regarding whether they could have been accommodated without undue hardship, because in the absence of employer proof that permitting the statements was disruptive or that it had any legitimate reason to fear losing business, a reasonable jury could conclude that no undue hardship was posed).

[303] See, e.g., Lizalek v. Invivo Corp., 314 F. App’x 881, at *2 (7th Cir. 2009) (holding that it would have posed undue hardship to accommodate employee’s need to alternate among different identities pursuant to his religious belief that he was three separate beings, where evidence showed employee’s practice of alternating between identities in e-mail correspondence endangered the company’s customer relationships and made it difficult for him to communicate with coworkers, and required management to devote “an inordinate amount of time to [the plaintiff’s] various requests”); Johnson v. Halls Merch., Inc., No. 87–1042–CV–W–9, 1989 WL 23201 (W.D. Mo. Jan. 17, 1989) (holding that it would have posed undue hardship on employer to permit retail employee’s regular statement to customers “in the name of Jesus Christ of Nazareth,” because it offended the beliefs of some customers and therefore cost the company business); see also infra notes 304-07.

[304]   See Mial v. Foxhoven, 305 F. Supp. 3d 984 (N.D. Iowa 2018) (holding that employer had not presented sufficient evidence to show as a mater of law that it would suffer undue hardship if required to accommodate employee who began signing internal business emails to coworkers “In Christ,” because fact issues existed regarding whether the communications would cause anyone to perceive that the employer government agency was endorsing Christianity, or that the communications caused disruption in the workplace or violated any neutral, generally applicable rules or procedures).

[305] See Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 164‑65 (2d Cir. 2001) (holding that allowing an employee to evangelize clients would not be reasonable because it would jeopardize the state employer’s ability to provide services in a religion-neutral manner); Rivera v. Choice Courier Sys., Inc., No. 01 Civ.2096 (CBM), 2004 WL 1444852, at *10 (S.D.N.Y. June 25, 2004) (holding that genuine issue of material fact existed as to whether courier was denied reasonable accommodation where courier alleged that employer could have accommodated courier’s need to evangelize by transferring him to a position with a less stringent dress code that would have allowed employee to continue wearing a patch stating “Jesus is Lord”).

[306] Cf. Dixon v. Hallmark Cos., 627 F.3d 849, 855-56 (11th Cir. 2010) (ruling that apartment complex property manager could proceed to trial on claim challenging termination for violating the employer’s religious displays policy by refusing to remove a poster of flowers with the words “Remember the Lilies . . . Matthew 6:28” she had hung in the on-site management office, where the employer also terminated the plaintiff’s husband, telling him, “You’re fired too. You’re too religious.”); Johnson, 1989 WL 23201 (holding that it would have posed undue hardship on employer to permit retail employee’s regular statement to customers “in the name of Jesus Christ of Nazareth,” because it offended the beliefs of some customers).  Moreover, a private employer’s own rights under the First Amendment Free Speech Clause may provide a defense to a Title VII accommodation claim, if the proposed accommodation would require the private employer involuntarily to display a religious message that could be construed as its own.  See also infra § 12‑IV-C-7.

[307] See Knight, 275 F.3d at 168; Grant v. Fairview Hosp. & Healthcare Servs., 02–4232JNEJGL, 2004 WL 326694, at *5 (D. Minn. Feb. 18, 2004) (finding that an ultrasound technician whose religious beliefs required him to dissuade women from having abortions was offered a reasonable accommodation when hospital restricted him from doing so but gave permission for him to be excused from performing ultrasounds on women it knew were contemplating abortions); see also Grossman v. S. Shore Pub. Sch. Dist., 507 F.3d 1097, 1100 (7th Cir. 2007) (affirming summary judgment for school district on terminated guidance counselor’s First Amendment free exercise and Title VII claims, the court ruled that the school district was permitted to terminate counselor for conduct, even if her actions of praying with students who approached her for guidance and throwing away school contraceptive education materials were motivated by her religious beliefs; there was insufficient evidence that her termination was based on her religious views alone as opposed to these actions, which the school district was entitled to prohibit.

[308] See Townley, 859 F.2d at 619-21 (noting private employer has First Amendment free exercise right to express its religion in the workplace). Cf., e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 703 (2014) (describing how family-owned company has statement of purpose to “[h]onor[] the Lord in all [they] do by operating the company in a manner consistent with Biblical principles”; “[e]ach family member has signed a pledge to run the businesses in accordance with the family’s religious beliefs and to use the family assets to support Christian ministries”; their stores are closed on Sundays, despite the loss of millions in sales annually; “[t]he businesses refuse to engage in profitable transactions that facilitate or promote alcohol use; they contribute profits to Christian missionaries and ministries; and they buy hundreds of full-page newspaper ads inviting people to ‘know Jesus as Lord and Savior’” (first and third alteration in original)).

[309] See Young v. Sw. Sav. & Loan Ass’n, 509 F.2d 140, 144-45 (5th Cir. 1975); see, e.g., EEOC v. United Health Programs of Am., Inc., 350 F. Supp. 3d 199, 240-41 (E.D.N.Y. 2018) (awarding attorney’s fees, injunctive relief, and costs in addition to the jury’s award of compensatory and punitive damages to plaintiff where the employer coerced employees to engage in religious practices at work, creating a hostile work environment based on religion, and terminated an employee who opposed those practices).  Alternatively, an employee may argue simply that mandating attendance in a religious service, without exception, adversely affects the terms and conditions of employment based on religion.

[310] See Mathis v. Christian Heating & Air Conditioning, Inc., 158 F. Supp. 3d 317, 333 (E.D. Pa. 2016) (denying summary judgment for the employer where plaintiff, an atheist, sought to refrain from wearing an employee ID badge with the employer’s Christian message, because although the employer’s message was intended to communicate “what we believe and how we want to be perceived by the public,” a reasonable jury could find no harm to the company if its message was not displayed on plaintiff’s badge); EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 614-21 (9th Cir. 1988) (employer must accommodate an employee’s atheism; no undue hardship because excusing employee from services would not have cost anything nor caused a disruption).

[311] See Young, 509 F.2d at 144-45 (ruling that employee was constructively discharged based on her religion in violation of Title VII where her superior advised her that she had obligation to attend monthly staff meetings in their entirety and advised her that she could simply “close her ears” during religious exercises with which meetings began). 

[312]   See Garry H. v. Dep’t of Transp., EEOC Appeal No. 0120181570, 2019 WL 4945081, at *2 (Sept. 24, 2019) (recognizing that holiday decorations such as a sign stating “Santa Claus[] is coming in [x number] of days” and Christmas lights are “secular symbols rather than an expression of a religion,” and concluding that “displaying them in the federal workplace does not violate the establishment clause of the First Amendment,” and does not constitute disparate treatment or hostile work environment harassment based on religion; noting the employer is not required by Title VII either to take them down or to add decorations representing other religions); see also Federal Workplace Guidelines, supra note 119 at Section D, example (b) (a government workplace does not violate the Establishment Clause by hanging a wreath or other secular Christmas decorations).

[313]   Although it is beyond the scope of Title VII enforcement, we note for the sake of completeness that the U.S. Supreme Court has held that wreaths and Christmas trees are “secular” symbols, akin to items such as lights, Santa Claus, and reindeer, and thus that government display of these items does not violate the Establishment Clause of the First Amendment.  See Cnty. of Allegheny v. ACLU, 492 U.S. 573, 616-17 (1989) (holding that stand-alone crèche on county courthouse steps violated Establishment Clause, but display elsewhere of Christmas tree next to a menorah and a sign proclaiming “liberty” did not), abrogated on other grounds Town of Greece v. Galloway, 572 U.S. 565 (2014); cf. Lynch v. Donnelly, 465 U.S. 668, 670, 683-87 (1984) (holding that government-sponsored display of crèche did not violate Establishment Clause because it was surrounded by various secular symbols as part of holiday display) ; Federal Workplace Guidelines, supra note 119 at Section D (example (b)).  For a discussion of both Title VII and Establishment Clause claims arising from holiday decorations in federal government employment context, see, e.g., Spohn v. West, No. 00 CIV. 0735 AJP, 2000 WL 1459981, at *4-5 (S.D.N.Y. Oct. 2, 2000).  In the private sector, Establishment Clause constraints would not apply. 

[314]   An employer may accommodate the employee’s religious belief by substituting an alternative technique or method that does not conflict with the employee’s religious belief or by excusing the employee from that part of the training program that poses a conflict, if doing so would not pose an undue hardship.

[315] Many employers have policies that require employees to treat each other with “courtesy, dignity and respect.”  This terminology fits within the ambit of treating others “professionally” as used in the example.  See Peterson v. Hewlett-Packard Co., 358 F.3d 599, 606‑08 (9th Cir. 2004) (holding that it would have constituted undue hardship for employer to accommodate employee by eliminating portions of its diversity program to which employee raised religious objections; to do so would have “infringed upon the company’s right to promote diversity and encourage tolerance and good will among its workforce”).  If training conflicts with an employee’s religious beliefs, the content of the training materials may be determinative in deciding whether it would pose an undue hardship to accommodate an employee by excusing him or her from the training or a portion thereof.  If the training required or encouraged employees to affirmatively support or agree with conduct that conflicts with the employee’s religious beliefs, or signal their support of certain values that conflict with the employee’s religious beliefs, it would be more difficult for an employer to establish that it would pose an undue hardship to accommodate an employee who objects to participating on religious grounds.  See Buonanno v. AT&T Broadband, LLC, 313 F. Supp. 2d 1069, 1081-83 (D. Colo. 2004) (holding that a company could require and instruct employees to treat coworkers with respect in accordance with corporate diversity policy, but that a violation of Title VII occurred where the company did not accommodate employee’s refusal on religious grounds to sign diversity policy asking him to “value the differences among all of us,” which he believed required him to ascribe worth to a certain behaviors or beliefs he believed were repudiated by Scripture rather than simply agree to treat his coworkers appropriately). 

[316]   See Commission Guidelines, 29 C.F.R. § 1605.2(c).

[317] See EEOC v. WC&M Enters., Inc., 496 F.3d 393, 401-02 (5th Cir. 2007) (holding that evidence was sufficient for employee to proceed to trial on claim that he was subjected to hostile work environment harassment based on both religion and national origin where harassment was motivated both by his being a practicing Muslim and by his having been born in India); Vitug v. Multistate Tax Comm’n, 88 F.3d 506, 515 (7th Cir. 1996) (holding that Catholic Filipino employee made out a prima facie case of national origin and religious discrimination).

[318] See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003) (denying employer’s summary judgment motion on Lebanese Muslim substitute school teacher’s discrimination claim because a reasonable jury could conclude that preconceptions about her religion and national origin caused school officials to misinterpret her comment that she was angry but did not want to “blow up”); Tolani v. Upper Southampton Twp., 158 F. Supp. 2d 593, 596-97 (E.D. Pa. 2001) (ruling that employee from India who was Asian stated a claim of discriminatory discharge based on race, religion, and national origin sufficient to survive summary judgment because employer mocked the way Indian people worship).

[319] 42 U.S.C. § 2000e-3(a); see also Burlington N. v. Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

[320]   42 U.S.C. § 2000e-3(a); see, e.g., Magden v. Easterday Farms, No. 2:16-CV-00068-JLQ, 2017 WL 1731705, at *8 (E.D. Wash. May 3, 2017) (holding plaintiff could proceed with retaliatory termination claim when he was fired for alleged poor performance two days after he complained to management about supervisor’s proselytizing, management took no steps to investigate, and supervisor confronted him about complaint).

[321]   See EEOC, Enforcement Guidance on Retaliation & Related Issues II.A.2(e) (Aug. 25, 2016), https://​www.​eeoc.​gov/​laws/​guidance/​enforcement-guidance-retaliation-and-related-issues.  In a related context, most courts have assumed or held that requests for disability accommodation are protected activity.  See Solomon v. Vilsack, 763 F.3d 1, 15 n.6 (D.C. Cir. 2014) (collecting cases); see also 9 Lex K. Larson, Employment Discrimination § 154.10, at 154-105 & n.25 (2d ed. 2014) (“In addition to the activities specifically protected by the statute, courts have found that requesting reasonable accommodation is a protected activity.”).  One circuit has held that requesting a religious accommodation, in contrast to opposing the denial of such a request, is not a protected activity under 42 U.S.C. § 2000e-3(a), and thus that a claim that a prospective employer had wrongfully denied a Seventh-day Adventist’s request not to work during her Sabbath (Friday sundown to Saturday sundown) should have been brought as a disparate treatment claim under 42 U.S.C. § 2000e-2(a) instead.  See EEOC v. N. Mem’l Health Care, 908 F.3d 1098, 1102–04 (8th Cir. 2019).  The Commission disagrees with that decision and believes the better interpretation of Title VII’s antiretaliation provision is that requests for religious accommodations are protected activity under that provision as well.

[322]   Burlington N., 548 U.S. at 68 (quotations omitted).

[323]   Executive Order 13609 is inapplicable because the interpretive guidelines are nonbinding and have no impact on international regulatory cooperation or on interactions with other countries.

[324]   Although www.regulations.gov numbers comments received as 74, the numbering excludes one and ten, and document number 54 is a duplicate.  Therefore, there were 71 unique comments.