What Constitutes Religious Discrimination?

Aaron Morris, J.D.
 

There was a time that the diversity of religions was fairly limited in the workplace, with everyone for the most part happily co-existing with their Judeo-Christian beliefs.  But the diversity of religions, or at least the public display of same, has exploded.  Along with this increase has come the challenge of accommodating all these various beliefs while at the same time keeping harmony in the workplace.  Those efforts are not always successful, resulting in a 100% increase in religious discrimination claims.

What follows are the EEOC's guidelines, taken from that agency's Compliance Manual, relating to religious discrimination.  The guidelines are long and complex, but if you slog through these standards, you will know more about what constitutes religious discrimination than any attorney you meet, save for the professionals at Morris & Stone.  You will also see the actual notes to the EEOC investigators, allowing you to understand exactly what investigators look at when they investigate a claim.

SECTION 12: RELIGIOUS DISCRIMINATION

OVERVIEW^[1]

This Section of the Compliance Manual focuses on religious discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).^[2] Title VII protects workers from employment discrimination based on their race, color, religion, sex, national origin, or protected activity.  Solely with respect to religion, Title VII also requires reasonable accommodation of employees’^[3] sincerely held religious beliefs, observances, and practices when requested, unless accommodation would impose an undue hardship on business operations.^[4] Undue hardship under Title VII is defined as “more than de minimis” cost or burden -- a substantially lower standard for employers to satisfy than the “undue hardship” defense under the Americans with Disabilities Act (ADA), which is defined instead as “significant difficulty or expense.”^[5]

The prohibition on discrimination and the requirement of reasonable accommodation apply whether the religious views in question are mainstream or non-traditional, and even if not recognized by any organized religion.  These protections also extend to those who profess no religious beliefs.^[6]

Questions about religion in the workplace have increased as religious pluralism has increased.  In a 2001 survey of human resource professionals conducted by the Society for Human Resource Management and the Tanenbaum Center for Interreligious Understanding, 36% of human resource professionals who responded reported an increase in the religious diversity of their employees in the preceding five years.^[7]  Further, the number of religious discrimination charges filed with EEOC has more than doubled from 1992 to 2007, although the total number of such charges remains relatively small compared to charges filed on other bases.^[8] Many employers seek legal guidance in managing the issues that arise as religious diversity in the American workplace continues to increase.^[9]

This Section of the Compliance Manual is designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VII’s prohibition against religious discrimination.  The Section defines religious discrimination, discusses typical scenarios in which religious discrimination may arise, and provides guidance to employers on how to balance the needs of individuals in a diverse religious climate.^[10] The Section is organized by legal topic, as follows:

1. I - Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.  
2. II - Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.
3. III - Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.
4. IV - Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.
5. V - Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

Some charges of religious discrimination may raise multiple claims, for example requiring analysis under disparate treatment, harassment, and denial of reasonable accommodation theories of liability.  In addition, there are some instances where Title VII religious discrimination cases implicate federal constitutional provisions.^[11]  For example, a government employer may contend that granting a requested religious accommodation would pose an undue hardship because it would constitute government endorsement of religion in violation of the Establishment Clause of the First Amendment.^[12] A private sector employer may contend that its own First Amendment rights under the Free Exercise or Free Speech Clauses would be violated if it is compelled by Title VII to grant a particular accommodation.^[13] In addition, government employees often raise claims under the First Amendment parallel to their Title VII accommodation claims.^[14] Defining the exact parameters of the First Amendment is beyond the scope of this document.  However, these First Amendment issues are referenced throughout this document in order to illustrate how they often arise in Title VII cases.^[15]

12-I  COVERAGE

Title VII prohibits covered employers, employment agencies, and unions^[16] from:

1. (1) treating applicants or employees differently (disparate treatment) based on their religious beliefs or practices – or lack thereof – in any aspect of employment, including recruitment, hiring, assignments, discipline, promotion, and benefits;
2. (2) subjecting employees to harassment because of their religious beliefs or practices – or lack thereof – or because of the religious practices or beliefs of people with whom they associate (e.g., relatives, friends, etc.);
3. (3) denying a requested reasonable accommodation of an applicant’s or employee’s sincerely held religious beliefs or practices – or lack thereof – if an accommodation will not impose an undue hardship on the conduct of the business;^[17] and,
4. (4) retaliating against an applicant or employee who has engaged in protected activity, including participation (e.g., filing an EEO charge or testifying as a witness in someone else’s EEO matter), or opposition relating to alleged religious discrimination (e.g., complaining to human resources department about alleged religious discrimination).

Although more than one of these theories of liability may apply in a particular case, they are discussed in separate parts of this manual for ease of use.

A. Definitions

1. Religion

Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.”^[19] Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.^[20] Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.”^[21] A belief is “religious” for Title VII purposes if it is “‘religious’ in the person’s own scheme of things,”^[22] i.e., it is “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by … God.”^[23] An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.^[24]

Religious beliefs include theistic beliefs as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”^[25] Although courts generally resolve doubts about particular beliefs in favor of finding that they are religious,^[26] beliefs are not protected merely because they are strongly held.  Rather, religion typically concerns “ultimate ideas” about “life, purpose, and death.”^[27]  Social, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII.^[28]

Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities.  Determining whether a practice is religious turns not on the nature of the activity, but on the employee’s motivation.  The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons.  Whether or not the practice is “religious” is therefore a situational, case-by-case inquiry.^[29] For example, one employee might observe certain dietary restrictions for religious reasons while another employee adheres to the very same dietary restrictions but for secular (e.g., health or environmental) reasons.^[30] In that instance, the same practice might in one case be subject to reasonable accommodation under Title VII because an employee engages in the practice for religious reasons, and in another case might not be subject to reasonable accommodation because the practice is engaged in for secular reasons.

The following examples illustrate these concepts:

2.  Sincerely Held
 

Title VII requires employers to accommodate only those religious beliefs that are “sincerely held.”^[35] Therefore, whether or not a religious belief is “sincerely held” by an applicant or employee is only relevant to religious accommodation, not to claims of disparate treatment or harassment because of religion.  In those claims, it is the motivation of the discriminating official, not the actual beliefs of the individual alleging discrimination, that are typically relevant in determining if the discrimination that occurred was because of religion.  A detailed discussion of reasonable accommodation of sincerely held religious beliefs appears in § IV, but the meaning of “sincerely held” is addressed here.

Like the “religious” nature of a belief or practice, the “sincerity” of an employee’s stated religious belief is usually not in dispute.  Nevertheless, there are some circumstances in which an employer may assert as a defense that it was not required to provide accommodation because the employee’s asserted religious belief was not sincerely held.  Factors that – either alone or in combination – might undermine an employee’s assertion that he sincerely holds the religious belief at issue include:  whether the employee has behaved in a manner markedly inconsistent with the professed belief;^[36] whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.  However, none of these factors is dispositive.  For example, although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time, and therefore an employee’s newly adopted or inconsistently observed religious practice may nevertheless be sincerely held.^[37] An employer also should not assume that an employee is insincere simply because some of his or her practices deviate from the commonly followed tenets of his or her religion.^[38]

3. Employer Inquiries into Religious Nature or Sincerity of Belief
 

Because the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief.  If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, the employer would be justified in seeking additional supporting information.  See infra § IV-A-2.

B.  Covered Entities

Title VII’s prohibitions apply to employers, employment agencies, and unions,^[39] subject to the statute’s jurisdictional requirements.  See EEOC Compliance Manual, “Threshold Issues,” http://www.eeoc.gov/policy/docs/threshold.html.  Those covered entities must carry out their activities in a nondiscriminatory manner and provide reasonable accommodation unless doing so would impose an undue hardship.^[40] Unions also can be liable if they knowingly acquiesce in employment discrimination against their members, join or tolerate employers’ discriminatory practices, or discriminatorily refuse to represent employees’ interests.^[41]

C. Exceptions

1. Religious Organizations

Under Title VII, religious organizations are permitted to give employment preference to members of their own religion.^[42] The exception applies only to those institutions whose “purpose and character are primarily religious.”^[43] That determination is to be based on “[a]ll significant religious and secular characteristics.”^[44] Although no one factor is dispositive, significant factors to consider that would indicate whether an entity is religious include:

• Do its articles of incorporation state a religious purpose?
• Are its day-to-day operations religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion)?
• Is it not-for-profit?
• Is it affiliated with or supported by a church or other religious organization? ^[45]

This exception is not limited to religious activities of the organization.^[46] However, it only allows religious organizations to prefer to employ individuals who share their religion.^[47] The exception does not allow religious organizations otherwise to discriminate in employment on protected bases other than religion, such as race, color, national origin, sex, age, or disability.^[48] Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.  Similarly, a religious organization is not permitted to deny fringe benefits to married women but not to married men by asserting a religiously based view that only men can be the head of a household. 

2. Ministerial Exception

Courts have held, based on First Amendment constitutional considerations, that clergy members cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act, because “[t]he relationship between an organized church and its ministers is its lifeblood.”^[50] This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority.^[51] Thus, courts will not ordinarily consider whether a church’s employment decision concerning one of its ministers was based on discriminatory grounds, although some courts have allowed ministers to bring sexual harassment claims.^[52]

The ministerial exception applies only to those employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction.^[53] The exception is not limited to ordained clergy,^[54] and has been applied by courts to others involved in clergy-like roles who conduct services or provide pastoral counseling.  However, the exception does not necessarily apply to everyone with a title typically conferred upon clergy (e.g., minister).^[55] In short, in each case it is necessary to make a factual determination of whether the function of the position is one to which the exception applies.

12-II EMPLOYMENT DECISIONS

A.  General

Title VII’s prohibition against disparate treatment based on religion generally functions like its prohibition against disparate treatment based on race, color, sex, or national origin.  Disparate treatment violates the statute whether motivated by bias against or preference toward an applicant or employee due to his religious beliefs, practices, or observances – or lack thereof.  Thus, for example, except to the extent permitted by the religious organization and ministerial exceptions, an employer may not refuse to recruit, hire, or promote individuals of a certain religion, may not impose stricter promotion requirements for persons of a certain religion, and may not impose more or different work requirements on an employee because of that employee’s religious beliefs or practices.^[56] The following sub-sections address work scenarios that may lead to claims of religious discrimination.

1. Recruitment, Hiring, and Promotion

Employers that are not religious organizations may neither recruit individuals of a particular religion nor adopt recruitment practices, such as word-of-mouth recruitment, that have the purpose or effect of discriminating based on religion.  Title VII permits employers that are not religious organizations to hire and employ employees on the basis of religion only if religion is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”^[57]

For example, an employer may not refuse to hire an applicant simply because he does not share the employer’s religious beliefs, and conversely may not select one applicant over another based on a preference for employees of a particular religion.^[58] Similarly, employment agencies may not comply with requests from employers to engage in discriminatory recruitment or referral practices, for example by screening out applicants who have names often associated with a particular religion (e.g., Mohammed).  Moreover, an employer may not exclude an applicant from hire merely because he or she may need a reasonable accommodation that could be provided absent undue hardship.^[59]

2. Discipline and Discharge

Title VII also prohibits employers from disciplining or discharging employees because of their religion. ^[61]

A charge alleging the above facts might also present a claim for denial of reasonable accommodation.  While the employer may require employees to be punctual, it may have to accommodate an employee who seeks leave or a schedule change to resolve the conflict between religious services and a work schedule, unless the accommodation would pose an undue hardship.^[62]

3. Compensation and Other Terms, Conditions, or Privileges of Employment

Title VII prohibits discrimination on a protected basis “with respect to . . . compensation, terms, conditions, or privileges of employment,” for example, setting or adjusting wages, granting benefits, and/or providing leave in a discriminatory fashion. ^[63]

Title VII’s prohibition on disparate treatment based on religious beliefs also can apply to disparate treatment of religious expression in the workplace.^[64]

Charges involving religious expression may present claims not only of disparate treatment, but also of harassment and/or denial of reasonable accommodation.  Investigation of claims of harassment and denial of reasonable accommodation are addressed respectively in §§ III and IV of this document.  As discussed in greater detail in those sections, Title VII requires employers to accommodate expression that is based on a sincerely held religious practice or belief, unless it threatens to constitute harassment or otherwise poses an undue hardship on the conduct of the business.  Thus, for example, an employer can restrict religious expression where it would cause customers or co-workers reasonably to perceive the materials to express the employer’s own message, or where the item or message in question is harassing or otherwise disruptive.^[66] For further discussion of how to analyze when accommodation of religious expression would pose an undue hardship, refer to the sections on Harassment at § III-C and Accommodation at § IV-C-6.

B. Customer Preference

If an employer takes an action based on the discriminatory preferences of others, including co-workers or clients, the employer is unlawfully discriminating.

C.  Security Requirements

In general, an employer may adopt security requirements for its employees or applicants, provided they are adopted for nondiscriminatory reasons and are applied in a nondiscriminatory manner.  For example, an employer may not require Muslim applicants to undergo a background investigation or more extensive security procedures because of their religion while not imposing the same requirements on similarly situated applicants who are non-Muslim, unless such job requirements are imposed by federal statute or Executive Order in the interest of national security.^[67]

D.  Bona Fide Occupational Qualification

Title VII permits employers to hire and employ employees on the basis of religion if religion is “a bona fide occupational qualification [“BFOQ”] reasonably necessary to the normal operation of that particular business or enterprise.”^[68] Religious organizations do not typically need to rely on this BFOQ defense, however, because the “religious organization” exception in Title VII permits them to prefer their co-religionists.  See supra § I-C.  It is well settled that for employers that are not religious organizations and therefore seek to rely on the BFOQ defense to justify a religious preference, the defense is a narrow one and can rarely be successfully invoked.^[69]

12-III HARASSMENT

A.  Prohibited Conduct

Religious harassment in violation of Title VII occurs when employees are:  (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of “quid pro quo” harassment may also give rise to a disparate treatment or denial of accommodation claim in some circumstances),^[71] or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.^[72]

1.  Religious Coercion That Constitutes a Tangible Employment Action

Title VII is violated when an employer or supervisor explicitly or implicitly coerces an employee to abandon, alter, or adopt a religious practice as a condition of receiving a job benefit or avoiding an adverse action.^[73]

A claim of harassment based on coerced religious participation or non-participation, however, only arises where it was intended to make the employee conform to or abandon a religious belief or practice.  By contrast, an employer would not be engaging in coercion if it required an employee to participate in a workplace activity that conflicts with the employee’s sincerely held religious belief, so long as the employer demonstrates that it would impose an undue hardship to accommodate the employee’s request to be excused.  However, the same fact pattern may give rise to claims of disparate treatment, harassment, and/or denial of accommodation.  For example, terminating rather than accommodating an employee may give rise to both denial of accommodation and discriminatory discharge claims.^[75] For discussion of the accommodation issue, see § IV, infra.[76]

2. Hostile Work Environment

Title VII’s prohibition against religious discrimination can also be violated if the employee is subjected to a hostile work environment because of religion.^[77] An unlawful hostile environment based on religion might take the form of either verbal or physical harassment or unwelcome imposition of religious views or practices on an employee.  A hostile work environment is created when the “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”^[78] To establish a case of religious harassment, an employee must show that the harassment was:  (1) based on his religion; (2) unwelcome; (3) sufficiently severe or pervasive to alter the conditions of employment by creating an intimidating, hostile, or offensive work environment; and, (4) that there is a basis for employer liability.^[79]

a. Based on Religion

To support a religious harassment claim, the adverse treatment must be based on religion.^[80] This standard can be satisfied regardless of whether the harassment is motivated by the religious belief or observance – or lack thereof – of either the harasser or the targeted employee.  Moreover, while verbally harassing conduct clearly is based on religion if it has religious content, harassment can also be based on religion even if religion is not explicitly mentioned.^[81]

b. Unwelcome

To be unlawful, harassing conduct must be unwelcome.  Conduct is “unwelcome” when the employee did not solicit or incite it and regards it as undesirable or offensive.^[84] It is necessary to evaluate all of the surrounding circumstances to determine whether or not particular conduct or remarks are unwelcome.^[85] For example, where an employee is upset by repeated mocking use of derogatory terms or comments^[86] about his religious beliefs or observance by a colleague, it may be evident that the conduct is unwelcome.  This would stand in stark contrast to a situation where the same two employees were engaged in a consensual conversation that involves a spirited debate of religious views, and neither employee indicates that he was upset by it.

The distinction between welcome and unwelcome conduct is especially important in the religious context in situations involving proselytizing of employees who have not invited such conduct.^[87] Where a religious employee attempts to persuade a non-religious employee of the correctness of his belief, or vice versa, the conduct may or may not be welcome.  When an employee objects to particular religious expression, unwelcomeness is evident.^[88]

c. Severe or Pervasive

Even unwelcome religiously motivated conduct is not unlawful unless “the victim . . .  subjectively perceive[s] the environment to be abusive” and the conduct is “severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive.”^[90] Whether a reasonable person would perceive the conduct as abusive turns on common sense and context, looking at the totality of the circumstances.^[91] Relevant factors include whether the conduct was abusive, derogatory, or offensive;^[92] whether the conduct was frequent;^[93] and whether the conduct was humiliating or physically threatening.^[94]

To “alter the conditions of employment,” conduct need not cause economic or psychological harm.^[96] It need not impair work performance, discourage employees from remaining on the job, or impede their advancement.^[97] The presence of one or more of those factors would buttress the claim, but is not required. ^[98]

However, Title VII is not a general civility code, and does not render all insensitive or offensive comments, petty slights, and annoyances illegal.^[99] Offhand or isolated incidents (unless extremely serious) will not rise to the level of illegality.^[100]

The severity and pervasiveness factors operate inversely.  The more severe the harassment, the less frequently the incidents need to recur.  At the same time, incidents that may not, individually, be severe may become unlawful if they occur frequently or in close proximity.^[103]

Although a single incident will seldom create an unlawfully hostile environment, it may do so if it is unusually severe, particularly if it involves physical threat.^[104]

Religious expression that is repeatedly directed at an employee can become severe or pervasive, whether or not the content is intended to be insulting or abusive.  Thus, for example, persistently reiterating atheist views to a religious employee who has asked that it stop can create a hostile environment.  However, the extent to which the expression is directed at a particular employee is relevant to determining whether or when it could reasonably be perceived to be severe or pervasive by that employee.^[106] For example, although it is conceivable that one employee may allege that he is offended by a colleague’s wearing of religious garb, expressing one’s religion by wearing religious garb is not religious harassment.  It merely expresses an individual’s religious affiliation and does not demean other religious views.  As such, it is not objectively hostile.  Nor is it directed at any particular individual.  Similarly, workplace displays of religious artifacts or posters that do not demean other religious views generally would not constitute religious harassment.

B. Employer Liability

1. Harassment by Supervisors or Managers

Employers are automatically liable for supervisory harassment that results in a tangible employment action such as a denial of promotion, demotion, discharge, or constructive discharge.  If the harassment does not result in a tangible employment action, the employer can attempt to prove, as an affirmative defense to liability, that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.^[107]

2. Harassment by Co-Workers

An employer is liable for harassment by co-workers where it:

• knew or should have known about the harassment, and
• failed to take prompt and appropriate corrective action.^[108]

3. Harassment by Non-Employees

An employer is liable for harassment by non-employees where it:

• knew or should have known about the harassment,
• could control the harasser’s conduct or otherwise protect the employee, and
• failed to take prompt and appropriate corrective action.^[110]

C.  Special Considerations for Employers When Balancing Anti-Harassment and Accommodation Obligations With Respect to Religious Expression

While some employees believe that religion is intensely personal and private, others are open about their religion.^[111] There are employees who may believe that they have a religious obligation to share their views and to try to persuade co-workers of the truth of their religious beliefs, i.e., to proselytize.  Some employers, too, may wish to express their religious views and share their religion with their employees.^[112]  As noted above, however, some employees may perceive proselytizing or other religious expression as unwelcome harassment based on their own religious beliefs and observances, or lack thereof.  This mix of divergent beliefs and practices can give rise to conflicts requiring employers to balance the rights of employees who wish to express their religious beliefs with the rights of other employees to be free from religious harassment under the foregoing Title VII harassment standards.^[113]

As discussed in more detail in § IV-C-6 of this document, an employer never has to accommodate expression of a religious belief in the workplace where such an accommodation could potentially constitute harassment of co-workers, because that would pose an undue hardship for the employer. Therefore, while Title VII requires employers to accommodate an employee’s sincerely held religious belief in engaging in religious expression (e.g., proselytizing) in the workplace, an employer does not have to allow such expression if it imposes an undue hardship on the operation of the business.  For example, it would be an undue hardship for an employer to accommodate proselytizing by an employee if it constituted potentially unlawful religious harassment of a co-worker who found it unwelcome, or if it otherwise interfered with the operation of the business.^[114]

Because employers are responsible for maintaining a nondiscriminatory work environment, they are liable for perpetrating or tolerating religious harassment of their employees.  An employer can reduce the chance that employees will engage in conduct that rises to the level of unlawful harassment by implementing an anti-harassment policy and an effective procedure for reporting, investigating, and correcting harassing conduct.^[115] Even if the policy does not prevent all such conduct, it will likely limit the employer’s liability where the affected employee allows the conduct to rise to the level of illegality by failing to report it.  However, Title VII violations may result if an employer tries to avoid potential co-worker objections to employee religious expression by preemptively banning all religious communications in the workplace, since Title VII requires that employees’ sincerely held religious practices and beliefs  be accommodated as long as no undue hardship is posed.

12-IV REASONABLE ACCOMMODATION

A religious accommodation claim is distinct from a disparate treatment claim, in which the question is whether employees are treated equally.  An individual alleging denial of religious accommodation is seeking an adjustment to a neutral work rule that infringes on the employee’s ability to practice his religion.  The accommodation requirement is “plainly intended to relieve individuals of the burden of choosing between their jobs and their religious convictions, where such relief will not unduly burden others.”^[118]

A.  Religious Accommodation

A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to comply with his or her religious beliefs.  However, it is subject to the limit of more than de minimis cost or burden.  The need for religious accommodation most frequently arises where an individual’s religious beliefs, observances, or practices conflict with a specific task or requirement of the job or the application process.  The employer’s duty to accommodate will usually entail making a special exception from, or adjustment to, the particular requirement so that the employee or applicant will be able to practice his or her religion.  Accommodation requests often relate to work schedules, dress and grooming, or religious expression or practice while at work. 

1. Notice of the Conflict Between Religion and Work

An applicant or employee who seeks religious accommodation must make the employer aware both of the need for accommodation and that it is being requested due to a conflict between religion and work.  The employee is obligated to explain the religious nature of the belief or practice at issue, and cannot assume that the employer will already know or understand it.^[119] Similarly, the employer should not assume that a request is invalid simply because it is based on religious beliefs or practices with which the employer is unfamiliar, but should ask the employee to explain the religious nature of the practice and the way in which it conflicts with a work requirement.

No “magic words” are required to place an employer on notice of an applicant’s or employee’s conflict between religious needs and a work requirement. To request an accommodation, an individual may use plain language and need not mention any particular terms such as “Title VII” or “religious accommodation.”  However, the applicant or employee must provide enough information to make the employer aware that there exists a conflict between the individual’s religious practice or belief and a requirement for applying for or performing the job.^[120]

2. Discussion of Request

While an employer is not required by Title VII to conduct a discussion with an employee before denying the employee’s accommodation request, as a practical matter it can be important to do so.  Both the employer and the employee have roles to play in resolving an accommodation request.  In addition to placing the employer on notice of the need for accommodation, the employee should cooperate with the employer’s efforts to determine whether a reasonable accommodation can be granted.  Once the employer becomes aware of the employee’s religious conflict, the employer should obtain promptly whatever additional information is needed to determine whether an accommodation is available that would eliminate the religious conflict without posing an undue hardship on the operation of the employer’s business.^[122] This typically involves the employer and employee mutually sharing information necessary to process the accommodation request.  Employer‑employee cooperation and flexibility are key to the search for a reasonable accommodation.  If the accommodation solution is not immediately apparent, the employer should discuss the request with the employee to determine what accommodations might be effective.  If the employer requests additional information reasonably needed to evaluate the request, the employee should provide it.

Failure to confer with the employee is not an independent violation of Title VII but, as a practical matter, such failure can have adverse legal consequences for both an employee and an employer.  For example, in some cases where an employer has made no effort to act on an accommodation request, courts have found that the employer lacked the evidence needed to meet its burden of proof to establish that the plaintiff’s proposed accommodation would actually have posed an undue hardship.^[123] Likewise, courts have ruled against employees who refused to cooperate with an employer’s requests for reasonable information when, as a result, the employer was deprived of the information necessary to resolve the accommodation request.  For example, if an employee requested a schedule change to accommodate daily prayers, the employer might need to ask for information about the religious observance, such as time and duration of the daily prayers, in order to determine if accommodation can be granted without posing an undue hardship on the operation of the employer’s business.^[124] Moreover, even if the employer does not grant the employee’s preferred accommodation but instead provides an alternative accommodation, the employee must cooperate by attempting to meet his religious needs through the employer’s proposed accommodation if possible.^[125]

Where the accommodation request itself does not provide enough information to enable the employer to make a determination, and the employer has a bona fide doubt as to the basis for the accommodation request, it is entitled to make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and that the belief or practice gives rise to the need for the accommodation.  See “Sincerely Held” and “Employer Inquiries into Religious Nature or Sincerity of Belief,” supra §§ I-A-2 and I-A-3.^[126] Whether an employer has a reasonable basis for seeking to verify the employee’s stated beliefs will depend on the facts of a particular case. 

When an employer requests additional information, employees should provide information that addresses the employer’s reasonable doubts.  That information need not, however, take any specific form.  For example, written materials or the employee’s own first-hand explanation may be sufficient to alleviate the employer’s doubts about the sincerity or religious nature of the employee’s professed belief such that third-party verification is unnecessary.  Further, since idiosyncratic beliefs can be sincerely held and religious, even when third-party verification is needed, it does not have to come from a church official or member, but rather could be provided by others who are aware of the employee’s religious practice or belief.^[128]

An employee who fails to cooperate with an employer’s reasonable request for verification of the sincerity or religious nature of a professed belief risks losing any subsequent claim that the employer improperly denied an accommodation.  By the same token, employers who unreasonably request unnecessary or excessive corroborating evidence risk being held liable for denying a reasonable accommodation request, and having their actions challenged as retaliatory or as part of a pattern of harassment. 

It also is important to remember that even if an employer concludes that an individual’s professed belief is sincerely held and religious, it is only required to grant those requests for accommodation that do not pose an undue hardship on the conduct of its business.

3. What is a “Reasonable” Accommodation?

Although an employer never has to provide an accommodation that would pose an undue hardship, see infra § IV-B, the accommodation that is provided must be a reasonable one.  An accommodation is not “reasonable” if it merely lessens rather than eliminates the conflict between religion and work, provided eliminating the conflict would not impose an undue hardship.^[129] Eliminating the conflict between a work rule and an employee’s religious belief, practice, or observance means accommodating the employee without unnecessarily disadvantaging the employee’s terms, conditions, or privileges of employment.^[130]

Where there is more than one reasonable accommodation that would not pose an undue hardship, the employer is not obliged to provide the accommodation preferred by the employee.^[131] However, an employer’s proposed accommodation will not be “reasonable” if a more favorable accommodation is provided to other employees for non-religious purposes,^[132] or, for example, if it requires the employee to accept a reduction in pay rate or some other loss of a benefit or privilege of employment and there is an alternative accommodation that does not do so.^[133]

Ultimately, reasonableness is a fact-specific determination.  “The reasonableness of an employer’s attempt at accommodation cannot be determined in a vacuum.  Instead, it must be determined on a case‑by‑case basis; what may be a reasonable accommodation for one employee may not be reasonable for another . . . . ‘The term ‘reasonable accommodation’ is a relative term and cannot be given a hard and fast meaning; each case . . . necessarily depends upon its own facts and circumstances, and comes down to a determination of ‘reasonableness’ under the unique circumstances of the individual employer-employee relationship.’”^[134]

Title VII is violated by an employer’s failure to accommodate even if to avoid adverse consequences an employee continues to work after his accommodation request is denied.  “An employee does not cease to be discriminated against because he temporarily gives up his religious practice and submits to the employment policy.”^[138] Thus, the fact that an employee acquiesces to the employer’s work rule, continuing to work without an accommodation after the employer has denied the request, should not defeat the employee’s legal claim.^[139]

In addition, the obligation to provide reasonable accommodation absent undue hardship is a continuing obligation.  Employers should be aware that an employee’s religious beliefs and practices may evolve over time, and that this may result in requests for additional or different accommodations.^[140] Similarly, the employer has the right to discontinue a previously granted accommodation that is no longer utilized for religious purposes or poses an undue hardship.

B.  Undue Hardship

An employer can refuse to provide a reasonable accommodation if it would pose an undue hardship.  Undue hardship may be shown if the accommodation would impose “more than de minimis cost” on the operation of the employer’s business.^[141] The concept of “more than de minimis cost” is discussed below in sub-section 2.  Although the employer’s showing of undue hardship under Title VII is easier than under the ADA, the burden of persuasion is still on the employer.^[142] If an employee’s proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.

1. Case-by-Case Determination

The determination of whether a particular proposed accommodation imposes an undue hardship “must be made by considering the particular factual context of each case.”^[143] Relevant factors may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.^[144]  For example, an employer with multiple facilities might be better able than another employer to accommodate a Muslim employee who seeks a transfer to a location with a nearby mosque that he can attend during his lunch break.

To prove undue hardship, the employer will need to demonstrate how much cost or disruption the employee’s proposed accommodation would involve.^[145] An employer cannot rely on potential or hypothetical hardship when faced with a religious obligation that conflicts with scheduled work, but rather should rely on objective information.^[146] A mere assumption that many more people with the same religious practices as the individual being accommodated may also seek accommodation is not evidence of undue hardship.  The determination of whether a proposed accommodation would pose an undue hardship is based on concrete, fact-specific considerations.^[147]

2. More than “De Minimis” Cost

To establish undue hardship, the employer must demonstrate that the accommodation would require more than de minimis cost.^[148] Factors to be considered are “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.”^[149] Generally, the payment of administrative costs necessary for an accommodation, such as costs associated with rearranging schedules and recording substitutions for payroll purposes or infrequent or temporary payment of premium wages (e.g., overtime rates) while a more permanent accommodation is sought, will not constitute more than de minimis cost, whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally cause an undue hardship to the employer.^[150] “[T]he Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”^[151]

Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business.  For example, courts have found undue hardship where the accommodation diminishes efficiency in other jobs,^[152] infringes on other employees’ job rights or benefits,^[153] impairs workplace safety, or causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work.^[154] Whether the proposed accommodation conflicts with another law will also be considered.^[155]

3. Seniority Systems and Collectively Bargained Rights

A proposed religious accommodation poses an undue hardship if it would deprive another employee of a job preference or other benefit guaranteed by a bona fide seniority system or collective bargaining agreement (CBA).^[157] Of course, the mere existence of a seniority system or CBA does not relieve the employer of the duty to attempt reasonable accommodation of its employees’ religious practices; the question is whether an accommodation can be provided without violating the seniority system or CBA.^[158] Allowing voluntary substitutes and swaps does not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system or CBA.^[159]

4. Co-worker Complaints

Although infringing on co-workers’ ability to perform their duties^[161] or subjecting co-workers to a hostile work environment will generally constitute undue hardship,^[162] the general disgruntlement, resentment, or jealousy of co-workers will not.^[163] Undue hardship requires more than proof that some co-workers complained; a showing of undue hardship based on co-worker interests generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work.^[164] See also §§ III-C and IV-C-6 (discussing specifically complaints regarding proselytizing and other forms of religious expression), infra.

5.  Security Considerations

If a religious practice actually conflicts with a legally mandated federal, state, or local security requirement, an employer need not accommodate the practice because doing so would create an undue hardship.  If a security requirement has been unilaterally imposed by the employer and is not required by law or regulation, the employer will need to decide whether it would be an undue hardship to modify or eliminate the requirement to accommodate an employee who has a religious conflict. 

C.  Common Methods of Accommodation in the Workplace

Under Title VII, an employer or other covered entity may use a variety of methods to provide reasonable accommodations to its employees.  The most common methods are:  (1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfer and/or change of job assignment; and, (4) modifying workplace practices, policies, and/or procedures.

1. Scheduling Changes

An employer may be able to reasonably accommodate an employee by allowing flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunch time in exchange for early departure, staggered work hours, and other means to enable an employee to make up time lost due to the observance of religious practices.^[167] However, EEOC’s position is that it will be insufficient merely to eliminate part of the conflict, unless eliminating the conflict in its entirety will pose an undue hardship by disrupting business operations or impinging on other employees’ benefits or settled expectations.

2. Voluntary Substitutes and Shift Swaps

Although it would pose an undue hardship to require employees involuntarily to substitute for one another or swap shifts, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available, either for a single absence or an extended period of time.  The employer’s obligation is to make a good faith effort to allow voluntary substitutions and shift swaps, under circumstances which do not discourage employees from substituting for one another or trading shifts to accommodate a religious conflict.^[170]  However, if the employer is on notice that the employee’s religious beliefs preclude him not only from working on his Sabbath but also from inducing others to do so, reasonable accommodation requires more than merely permitting the employee to swap.^[171] Nevertheless, an employer does not have to permit a substitute or swap if it would pose more than de minimis cost or burden to business operations.  As noted above, if a swap or substitution would result in the employer having to pay premium wages (such as overtime pay), the frequency of the arrangement will be relevant to determining if it poses an undue hardship; “the Commission will presume that the infrequent payment of premium wages for a substitute or the payment of premium wages while a more permanent accommodation is being sought are costs which an employer can be required to bear as a means of providing reasonable accommodation.”^[172]

An employer may have to make an exception to its scheduling policies, procedures, or practices in order to grant religious accommodation.^[173] For example, if it does not pose an undue hardship, an employer must make an exception to its policy of requiring all employees, regardless of seniority, to work an “equal number of weekend, holiday, and night shifts,” and instead permit voluntary shift swaps between qualified co-workers in order to accommodate a particular employee’s sincerely held religious belief that he should not work on the Sabbath.  Of course, if allowing a swap or other accommodation would not provide the coverage the employer needs for its business operations or otherwise pose an undue hardship, the accommodation does not have to be granted.

3.   Change of Job Tasks and Lateral Transfer

When an employee’s religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict with the employee’s religion.  Whether or not such accommodations pose an undue hardship will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a CBA or seniority system.

The employee should be accommodated in his or her current position if doing so does not pose an undue hardship.^[177] If no such accommodation is possible, the employer needs to consider whether lateral transfer is a possible accommodation.^[178] For example, if a pharmacist who has a religious objection to dispensing contraceptives can be accommodated without undue hardship by allowing the pharmacist to signal a co-worker to assist customers with such prescriptions, the employer cannot choose instead to accommodate by transferring the pharmacist to a different position.  Moreover, if the pharmacist cannot be accommodated within his position, the employer cannot transfer the pharmacist to a position that entails less pay, responsibility, or opportunity for advancement unless a lateral transfer is unavailable or would otherwise pose an undue hardship.[179]

4. Modifying Workplace Practices, Policies and Procedures

a. Dress and Grooming Standards

When an employer has a dress or grooming policy that conflicts with an employee’s religious beliefs or practices, the employee may ask for an exception to the policy as a reasonable accommodation.^[181] Religious grooming practices may relate, for example, to shaving or hair length.  Religious dress may include clothes, head or face coverings, jewelry, or other items.  Absent undue hardship, religious discrimination may be found where an employer fails to accommodate the employee’s religious dress or grooming practices.^[182]

Some courts have concluded that it would pose an undue hardship if an employer was required to accommodate a religious dress or grooming practice that conflicts with the public image the employer wishes to convey to customers.^[183] While there may be circumstances in which allowing a particular exception to an employer’s dress and grooming policy would pose an undue hardship, an employer’s reliance on the broad rubric of “image” to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called “customer preference”) in violation of Title VII.^[184]

There may be limited situations in which the need for uniformity of appearance is so important that modifying the dress code would pose an undue hardship.^[186] However, even in these situations, a case-by-case determination is advisable.^[187]

b. Use of Employer Facilities

If any employee needs to use a workplace facility as a reasonable accommodation, for example use of a quiet area for prayer during break time, the employer should accommodate the request under Title VII unless it would pose an undue hardship.  If the employer allows employees to use the facilities at issue for non-religious activities not related to work, it may be difficult for the employer to demonstrate that allowing the facilities to be used in the same manner for religious activities is not a reasonable accommodation or poses an undue hardship.^[188]

c. Tests and Other Selection Procedures

An employer has an obligation to accommodate an employee or prospective employee when scheduling a test or administering other selection procedures, where the applicant has informed the employer of a sincerely held religious belief that conflicts with a pre-employment testing requirement, unless undue hardship would result.^[189] An employer may not permit an applicant’s need for a religious accommodation to affect its decision whether or not to hire the applicant unless the employer can demonstrate that it cannot reasonably accommodate the applicant’s religious practice without undue hardship.^[190]

d.   Providing Social Security Numbers

It will typically pose an undue hardship for an employer to accommodate an applicant or employee’s asserted religious belief against providing or using a social security number.^[191]

5. Excusing Union Dues or Agency Fees

Absent undue hardship, Title VII requires employers and unions to accommodate an employee who holds religious objections to joining or financially supporting a union.^[192] Such an employee can be accommodated by allowing the equivalent of her union dues (payments by union members) or agency fees (payments often required from non-union members in a unionized workplace) to be paid to a charity agreeable to the employee, the union, and the employer.^[193] Whether a charity-substitute accommodation for payment of union dues would cause an undue hardship is an individualized determination based upon, among other things, the union’s size, operational costs, and the number of individuals that need the accommodation.^[194]

If an employee’s religious objection is not to joining or financially supporting the union, but rather to the union’s support of certain political or social causes, the employee may be accommodated if it would not pose an undue hardship by, for example, reducing the amount owed and/or by allowing the employee to donate to a charitable organization the full amount the employee owes or that portion that is attributable to the union’s support of the cause to which the employee has a religious objection, or by diverting the full amount to the national, state, or local union in the event one of those entities does not engage in support of the cause to which the employee has a religious objection.^[195]

6. Permitting Prayer, Proselytizing, and Other Forms of Religious Expression

Some employees may seek to display religious icons or messages at their work stations.  Others may seek to proselytize by engaging in one-on-one discussions regarding religious beliefs, distributing literature, or using a particular religious phrase when greeting others.  Still others may seek to engage in prayer at their work stations or to use other areas of the workplace for either individual or group prayer or study.  In some of these situations, an

employee might request accommodation in advance to permit such religious expression.  In other situations, the employer will not learn of the situation or be called upon to consider any action unless it receives complaints about the religious expression from either other employees or customers.  As noted in §§ II-A-4 and III-C of this document, prayer, proselytizing, and other forms of religious expression do not solely raise the issue of religious accommodation, but may also raise disparate treatment or harassment issues.

To determine whether allowing or continuing to permit an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, employers should consider the potential disruption, if any, that will be posed by permitting this expression of religious belief.^[196] As explained below, relevant considerations may include the effect such expression has had, or can reasonably be expected to have, if permitted to continue, on co-workers, customers, or business operations.

a. Effect on Workplace Rights of Co-Workers

Expression can create undue hardship if it disrupts the work of other employees or constitutes – or threatens to constitute – unlawful harassment.  Since an employer has a duty under Title VII to protect employees from religious harassment, it would be an undue hardship to accommodate such expression.  As explained in § II-A-2-b of this document, religious expression directed toward co-workers might constitute harassment in some situations, for example where it is facially abusive (i.e., demeans people of other religions), or where, even if not abusive, it persists even though the co-workers to whom it is directed have made clear that it is unwelcome.  It is necessary to make a case-by-case determination regarding whether the effect on co-workers actually is an undue hardship.  However, this does not require waiting until the alleged harassment has become severe or pervasive.^[197] As with harassment on any basis, it is permitted and advisable for employers to take action to stop alleged harassment before it becomes severe or pervasive, because while isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful.^[198]

b. Effect on Customers

The determination of whether it is an undue hardship to allow employees to engage in religiously oriented expression toward customers is a fact-specific inquiry and will depend on the nature of the expression, the nature of the employer’s business, and the extent of the impact on customer relations.  For example, one court found that it did not impose an undue hardship for a private sector employer to allow a cashier to use the general religious greeting “Have a Blessed Day” in accepting payment where it was said in the context of brief anonymous interactions and had little demonstrable adverse impact on customers or the business.^[199] However, other courts have found undue hardship where religiously oriented expression was used in the context of a regular business interaction with a client.^[200] Whether or not the client objects, this may be an undue hardship for an employer where the expression could be mistaken as the employer’s message.  Where the religiously oriented expression is not limited to use of a phrase or greeting, but rather is in the manner of individualized, specific proselytizing, an employer is far more likely to be able to demonstrate that it would constitute an undue hardship to accommodate an employee’s religious expression, regardless of the length or nature of the business interaction.^[201]

7. Employer-Sponsored Programs

Some employers have integrated their own religious beliefs or practices into the workplace, and they are entitled to do so.^[204] However, if an employer holds religious services or programs or includes prayer in business meetings, Title VII requires that the employer accommodate an employee who asks to be excused for religious reasons, absent a showing of undue hardship.^[205] Excusing an employee from religious services normally does not create an undue hardship because it does not cost the employer anything and does not disrupt business operations or other workers.^[206]

Similarly, an employer is required, absent undue hardship, to excuse an employee from compulsory personal or professional development training where it conflicts with the employee’s sincerely held religious beliefs or practices.^[209] There may be cases, however, where an employer can show that it would pose an undue hardship to provide an alternative training or to excuse an employee from any part of a particular training, even if the employee asserts it is contrary to his religious beliefs to attend (e.g., where the training provides information on how to perform the job, on how to comply with equal employment opportunity obligations, or on other workplace policies, procedures, or applicable legal requirements).  

12-V RELATED FORMS OF DISCRIMINATION

A. National Origin, Race, and Color

Title VII’s prohibition against religious discrimination may overlap with Title VII’s prohibitions against discrimination based on national origin, race, and color.  Where a given religion is strongly associated – or perceived to be associated – with a certain national origin, the same facts may state a claim of both religious and national origin discrimination.^[212] All four bases might be implicated where, for example, co-workers target a dark-skinned Muslim employee from Saudi Arabia for harassment because of his religion, national origin, race, and/or color.^[213]

B.  Retaliation

Title VII prohibits retaliation by an employer, employment agency, or labor organization because an individual has engaged in protected activity.^[214] Protected activity consists of opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes or of filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.  EEOC has taken the position that requesting religious accommodation is protected activity.^[215]

APPENDIX A
HOW APPLICANTS OR EMPLOYEES CAN FILE A CHARGE

If you believe you have been discriminated against by a private sector or state or local government employer, labor union, or employment agency when applying for a job or while on the job because of your race, color, religion, sex, national origin, age (40 or over), or disability, or believe that you have been discriminated against because you opposed unlawful discrimination or participated in an equal employment opportunity (EEO) proceeding, you may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).  Charges against private sector and local and state government employers may be filed in person, by mail, or by telephone by contacting the nearest EEOC office.  If there is no EEOC office in the immediate area, call toll free 1-800‑669‑4000 or 1‑800‑669‑6820 (TTY) for more information.  To avoid delay, call or write beforehand if you need special assistance, such as an interpreter, to file a charge.  Federal sector employees and applicants should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling.

There are strict time frames in which charges of employment discrimination must be filed or your agency’s EEO office must be contacted.  When charges or complaints are filed beyond these time frames, you may not be able to obtain any remedy.  Charges against private sector or state or local governments must be filed with EEOC within 180 days of the alleged discriminatory act.  The time frame is extended to 300 days if the alleged discrimination arose in a state or locality that has a fair employment practices agency (FEPA) with the authority to grant or seek relief for the alleged discrimination.  Federal sector employees and applicants must initiate EEO counseling at the agency responsible for the alleged discrimination within 45 days of the alleged discriminatory event.  Allegations of harassment based on race, color, religion, sex, or national origin are timely if at least one incident of harassment that is part of the larger pattern of harassment occurred within the filing period.

If you wish to remain anonymous during the period when an EEOC charge is being processed involving a private sector or state or local government employer, another individual or an organization may file a charge on your behalf.  In some circumstances, an EEOC Commissioner may file a charge against a private sector or state or local government employer.  Federal sector employees and applicants may remain anonymous during EEO counseling, but lose the right to anonymity after filing a formal complaint.

This page was last modified on July 23, 2008.