A Brief Guide to Federal Antidiscrimination Law and Religion

I’m about to post something about an interesting new case on religious charities and employment discrimination law, so I thought it would be helpful to post this general summary I wrote a while back; I also hope to refer to it in future posts.

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Federal job discrimination law provides three sets of religion-related rights to employees, public or private, when the employer has 15 or more employees. Similar state laws generally provide similar rights. (I set aside disparate impact claims arising outside the religious accommodation context, and religious affirmative action programs; these come up very rarely.) There are also three possible religion-specific defenses that employers can raise, which I discuss below. Let me begin with the three sets of employee rights:

1. The right to be free from religious discrimination: Employers generally may not treat employees differently because of their religion (or lack of religion). 42 U.S.C. § 2000e-2(a).

2. The right to reasonable religious accommodation: An employer must give religious employees special exemptions from generally applicable job requirements if the requirements interfere with an employee’s sincerely felt religious obligations and such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977). And it doesn’t take a lot of hardship to create “undue hardship” — “To require [an employer] to bear more than a de minimis cost in order to [accommodate an employee] is an undue hardship.” The EEOC and most lower courts have agreed that this applies not just to religious objectors but also people who have “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views,” 29 C.F.R. § 1605.1 (adapting the Welsh v. United States standard). See, e.g., Protos v. Volkswagen of Am., Inc., 797 F.2d 129 (3d Cir. 1986).

3. The right to be free from a religiously hostile environment: Employers are liable for damages when the employer, its employees, or its patrons engage in conduct or speech that is

  1. “severe or pervasive” enough
  2. to create a “hostile, abusive, or offensive work environment”
  3. based on religion
  4. for the plaintiff and
  5. for a reasonable person.

The theory is that tolerating behavior that creates a hostile environment constitutes discrimination in the “terms [and] conditions … of employment,” 42 U.S.C. § 2000e-2(a). Courts have applied hostile environment law both to speech said directly to the offended person and to speech (signs, e-mails, coworker conversations, and the like) seen or overheard by the person. Courts have generally said that the “severe or pervasive” requirement is usually not satisfied by a single instance of offensive speech, but can be satisfied by several incidents over the span of weeks or months.

Employers are generally liable when they know or have reason to know about the speech. As to speech by patrons, employers are liable only when they have the power to control the speech (for instance, by instructing employees to eject offending patrons). Religious harassment cases may involve religious insults or even noninsulting religious proselytizing, if a jury concludes that the speech meets the five criteria laid out above.

An employer can also have three possible defenses to religious discrimination claims, and possibly also to the other two kinds of claims:

1. Religious employers are free to discriminate based on religion. 42 U.S.C. § 2000e-1(a); 42 U.S.C. § 2000e-2(e)(2).

2. All employers may discriminate based on religion when religion is a bona fide occupational qualification (BFOQ) reasonably necessary to the employer’s operation. 42 U.S.C. § 2000e-2(e)(1); see Pime v. Loyola Univ. of Chicago, 803 F.2d 351 (7th Cir. 1986) (religion may sometimes be BFOQ when hiring teachers at a university that has a religious tradition, even when the university isn’t pervasively religious enough to qualify as “religious educational institution” under § 2000e-1(a)); Kern v. Dynalectron Corp., 577 F. Supp. 1196 (N.D. Tex. 1983) (converting to Islam is BFOQ for pilots who fly to Mecca, when under Saudi law non-Muslims who go to Mecca are to be executed), aff’d without op., 746 F.2d 810 (5th Cir. 1984).

This, though, is a narrow exception. For instance, “[t]he refusal to hire an individual because of the preferences of coworkers, the employer, clients or customers” is generally not justifiable as a BFOQ in sex discrimination cases, 29 C.F.R. § 1604.2(a)(1)(iii), and the same likely applies in religion cases (setting aside extreme situations such as Kern).

3. Courts have also generally held that churches have a constitutional right to discriminate based on any criteria they wish — not just religion, but also race, sex, and other criteria — in hiring ministers or employees who have at least some minister-like duties. See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985). The church need not claim that it has a religious duty to discriminate on such grounds; it can simply assert an unconditional right to choose its ministers in any way it likes. But this particular defense is limited to churches (unlike the BFOQ defense), and to ministerial employees, not janitors, secretaries, or even teachers of secular subjects (unlike the 42 U.S.C. § 2000e-1 defense).