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The White House
Washington
FAX COVER SHEET
Office of Domestic Policy
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Old Executive Office Building
Washington, D.C. 20500
FAX: (202)-456-7028
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8UacowloVl"Ti1l ON ANl'I"""",
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..... 01'
June 20, 1994
Mr. Tony Gallegos
Actinc; Chairman
o. S .E~al
Empl,oyment Opportunity Commie.lon
1801 L Steet, N.W.
Washin;t.on,. D.C. 20507
Dear Acting
Chair~anCalle90s:
I am writing with regard to the EEOC's llroposed Guid.elines
on Har••sment'Basedon Color, Religion, Gender, Nationa.l Oriqin,
Age and Disability •. As you know, the Senate passed a resolution
last week that addresses the applicability of these Proposed
Guidelines to reliqious harassment.
'
Aa or1ginally introduced, Senator Brown's resolution c~lled.
on the EEOC to witndraw religion from the Proposed Guidelines and·
accord such harassment qseparate treatment trom the other.
categoriee of haras8ment." That lanquBge t_roubled me, t:or' two
;reaaotl&. First, it,is in~on818tent with exist.ing case law, which
prOviQ~8 no basis for differentiating between religious
haraasment and other types-of workplace hara.ssment in terms Of
the applicable leqalstandards. Second, it sends a dangerous
signal that religious harassm$nt may be less deserving of
protection than other types of harassment.
After some clabate on this issue, Senators Brown and Heflin
to remove references to "separate treatment W In the
findin98 and body of 'the resolution .. Senators Brown and Heflin
also agreed to modify the language providing tor the withdrawal
of religion trom the Proposed Guidelines. As amended., the
resolution now requires onl:fa temporary withdrawal, by providi.ng
that "the -category of religion shOUld be withdrawn f~om the
proposeaquidelines at this t.ima" (-e.1lphasis added). The phx'ise
Wat this time- makes ~lear that religion need not be excluded
from the EEOCls final Guidelines . .As modified, the resolution
passed. by il vote of 94-0 (see attached copy of Congressional
Record) .
aqreed
Some press reports about the resolution have been
inaccUrate, 'so 1 am w4'itin9 to clarify its aetual mQaning. As
pa•••d, the resolution calla on theZEOC to (1) withdraw reliqion
rrom the Proposed Guidelines at this time, (2) hold additional
bearings and receive additional comtn,nt., and (3) ensure that the
�EEOC...
202 456 7028:# 4
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final Guicle11nea make clear that .yrtlbols or.expressions of
religious belief ate not to be restricted and do not. const.itute
proof of harassment. Notably, the resolution does ~ require
the EEOC to adopt a separate regulatory process for religious
harassment, t.o issue aeparatequ1del1nes for religious
harassment, or to apply le9alstanda~ds to suchhara~smont which
are different from those applied to other t.ype. of workplace
har•••ment.
I hope thia clarificatJ.on has been helptul. should you bave
further questions about this resolutionl please contact Grsg
Watchman of my staff at 224-5546.
Sincerely,
~"'Mt8d: :~
Howard M. Metzenbaum
Chairman, Suocommittee on
Laher, 'Committee on Labor and
Human Resources
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,'iilaert:&fter the last seet.ion
2
eDt, admjrdster, or enforce &Ill' ,
'3
zg.ploymentOpportUnitj
~....nt based
Com~
on religion, when it is
entity or' ot.6cial to which such
,'6 funds ~
,,7 in any respect from
8 the
, such guidelines do not differ
made a""'·.....
ropoSed guide1j n es published by ,
1993, (58 Fed. Beg.
CommissiOUOD
9 61266).
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DETERi\·H"!I.r'CD T'
MARKINId,.c; 0 BE AN ADMI"nS'7'l:> A'T
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Per E.O. 12958 :is amended, Sec. 3
. tIals. ~mS_Datc: 8M~/(J~
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.
RELIGIOUS ACCOMMODATION
BACKGROmm
I. The Fundamentals of the Accommodation Requirement
A.
'Unlike the other bases covered by Title VII, non
discrimination on the basis of reliqioD does not require
just neutrality, but also involves an affirmative
obligation to'accommodate the sincerely held religious
practices and. beliefs of employees, if that can be done
without undue hardship to the employer.
B.
The extent and nature of the employer's affirmative
obligation to accommodate employees' religious beliefs
. when· these are in. conflict with work requirements has
been the subject of litigation, including two Supreme
court deciSions, 7WA v. Hardison and Ansonia v.
Philbrook.
It is now the subject of ~ bill pending
before the Congress, H.R. 5233 (the Nadler bill).
C.
Under the Supreme Court's decision in T.W.A. y. Hardison
(1977) I ' Title VII permits the employer to show "undue
hardship" by showing that the accommodation would require
more than a "de minimis" cost or that it 'Would violate
the seniority provisions of a collective bargaining
agreement.
.
D.
In Ansonia v. Philbrook (1988), the- Supreme Court held
that, under Title VII, an employer has no obligation to .
offer the accommodation preferred by the employee, so
long as the employer offers an accommodation that removes
the religious conflict.
II. COKKISSION GUIDELINES OH ACCOKKODATIOH
A.
Our extant Guideline was issued in 1980 and incorporated
the Hardison test for undue hardship.
Bo
It provides that "when there is more than one means of
accommodation that 'Would not cause undue hardship, the
employer • • • must offer the accommodation which least
disadvantages the individual with respect to his or her
employment opportunities,· [such as compensation, terms I
conditions or privileges of employment].·' 29 C.F.R. S
1605.2 (c) (2) (ii).
1.
In Ansonia, the Supreme Court noted that: "To the
extent that the Guideline • •
requires the
employer to accept any alternative favored by the
employee short of undue hardship
the
guideline [is] simply inconsistent with th~ plain
meaning of [Title VII)." 479 U.S. at 69-70 n.6.
�1-17-95
SENT BY:
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CCITT ECM;# 3
The Commission conclud'ed that Ansonia did not
conflict with the Guidelines. This was because the
guidelines did not require the employer to give any
accommodation that the employee preferred but only
the one that did not cause undue hardship and least
burdened the employee's ellployaent status.
~
Policy
statement
on
Ansonia
v.
Philbrook,
Compliance Manual § 628, Appendix A. It therefore
left the Guideline unchanged.
c. :The Commission did not address this issue further until
:1993,
when the Commission proposed to revise S
2 (c) (2) to reflect the Ansonia rule that an employer
ineed not offer the employee his or her preferred
laccommodation.
A copy of the proposed revision is
attached.
~1605.
1.
The revision was prompted by Vice President
Quayle's requlatory review, under which agencies
were virtually required to find some regulations to
eliminate or revise.
2.
The proposed revision elicited six comments, five
of which were unfavorable.
Three religious
organizations asked the Commission to delay any
final decision pending introduction of a bill by
Representative Nadler to amend Title VII's
accommodation requirement to conform, to the
original Guidelines. A fourth, the American Jewish
Conqress, said that while some revision was needed
in light of Ansonia, the proposed guidelines went
too far. AJC recommended revisions that would make
clear that the accommodation must not adversely
affect the employee's job status or opportunities.
3.
No further action was taken regardinq the proposed
guideline and ,it was vithdrawn with the rest of the
regulatory agenda this fall.
III. NADLER BILL
A.
The bill would reverse Hardison by providing that:
1.
an employer could not establish an ·'undue hardshiph
defense unless it could show that the accommodation
would cause "significant.. difficulty or expense,
2.
a bona fide seniority system is not a, defense to a
failure to provide accommodation where the
employee's work hours can be adjusted to permit the
religious observance or other employee5 are willing
to swap, and
2,
�EEOC....
SENT BY:
3.
B.
CCITT ECM:# 4
employers need not pay premium wages for schedule
changes made' to . accommodate the employee's
religious practice.
It addresses Ansonia by providing that:
l . t o be reasonable an accommodation must eliminate
the conflict between employment requirements and
the employee's religious observance and,
2.
as between two or more alternatives that would not
cause undue hardship, the employer must offer the
accommodation that is least onerous for the
employee
IV. ANTICIPATID RBAeTIOHS
A.
For the Commission to proceed with the proposed revisions
of the Guidelines at this time would antagonize religious
groups, even if the Commission were to adopt the
revisions proposed by the AJC. (We would not recommend
publishing the proposed Guidelines in their present form
under any circumstances since we agree with those
commentors who stated that they oversimplify Ansonia and,
thus, might be misleading).
B.
Since courts have often interpreted the standard that
employers need not incur a "more than de minimis" burden
to mean that the employer need do almost nothing, the
Nadler bill will presumably be welcomed by religious
groups, especially' by those that practice their Sabbath
other than on Sunday .and have holy days .other than
Christmas and Easter.
While the bill may be most
important to those who practice other than mainstream
Christian religions, we expect that all religious groups
will enthusiastically support this bill that makes clear
that the burden .is on the employer to accommodate an
employee's religion if it can do so without significantly
burdening business.
C.Employer groups may oppose the bill.
1.
They may object to defining "undue hardship" as
··significant," rather than D'more than de minimis,"
difficulty pr expense.
a.
"Significant difficulty or expense'l is the
definition of. "undue hardship"
in the
Americans with Disabilities Act. Those groups
that oppose the ADA as· unduly- burdensoae . on
business are likely to have the same reaction
to the Nadler bill.
3
�1-17-95
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.;.
b.
2.
Note, however, that the bill takes care ot the
most
significant
potential
burden
by
specifying that employers need not pay premium
wages when the employee is working irregular
hours for religious reasons.
Employers .ay also be opposed to the provision that
where there is more than one accommodation that
will not cause significant cost, employers must
give the one that is least "onerous" to the
employee.
As noted above, under the extant
Guidelines,
employers need only provide the
accommodation
that
le~st
burdens
employment
opportunities.
However.
since "onerous"
is
undefined in the Nadler bill, it
could be
construed to· require employers to give employees
their preferred accommodation even where the
preference is motivated by something personal
rather than by religious need or employment related
concerns.
D.
Labor organizations may oppose the bill to the extent
that it requires that. religious accommodation needs
supersede seniority provisions of a collective bargaining
agreement that gives employees with the greatest
seniority the first entitlement to weekends off or
preferred shifts.
These issues have been raised with
regard to the relationship between the ADA and collective
bargaining agreements.
E.
Civil liberties and separation of church and state groups
may oppose the b1ll as an "establishment of religion" 1n
violation of the First Amendment.
1.
When Title VII was first enacted, there were
challenges to the. accommodation requirement as an
unlawful
establishment
of
religion.
Such
challenges have generally been defeated.
2.
Justice Marshall's dissent in Hardison indicates
that there is no. Establishment Clause violation
where tl)e employer need only bear de minimis cost
but suggests that the answer might differ if the
Government required employers to bear significant
difficulty or expense. Under the Nadler bill, the
employer's burden is just short of significant
expense.
If the bill. passes, expect more First
Amendment challenges.
4
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DEPARTIIEH1' Of STATE
period an addiuonaleO days for 8. total
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NonImmigrant. Unde,"I"" immigration (FR.Doe. 93-21~81 FlIed 9-22-93; 8:45 a:m.J . "
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action has been. subadt1Ddfoi-nrriaw to AGENCY: Ul'88U 0 ,~1U8l ~,
EQUAL EMPLOYMENT OPPORTUNITY '" .
COMMISSION'
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the O.8ica ofMaDagemaiit aDd. Budget. . ~.~: PMposad Nle; 8ld.ansion of
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nquestsd. pumlBnt to the pruvisiODS of _M_III_ID8Dl.;;;.p8n_·od_._ _ _ _~_ _ 29 CFR Part 1105
__
the Paperwork 18ducti.0Q Act ofl980.
SUIAIARY: This dOCWDant axtendslhe
44 U.S.c. at seq. ' ",:, .. , , 'originally llCbeduJed comment period to Discrimination 8ecau.. of Hellglon '
,;. :.
This actioa has ~ ~y;..t'in·
November 23.1993. 1'bs proposed
Under l111e VII of the CIvil Right. Act .
"'
accordance with the principles uid
rulemumg pubUshed 011 July 26, 1993. of 1964, •• Amended ..,.
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crith amtaWed m.B.O. 12612, and it· 58 f'R 40024, plOpoHS to amend
AGBlCY: Equal Employment
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, has beer1 determined that the rule d.oesregulatioDl on visas for temporary
OpportWlity Commis&ion (EEOC). "
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not have INftident fadera.l1sm
visitors for plauure &Dd temporary
. AcTIoN: Notice of proposed. nale.Daklng: :'.'::
lmpU.catiODB to "W8I'l'1IQt the plilpalat1~D ". visitozs for busiDeu. The proposed
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SUMMARY: The Equal Employment "
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interpretation oftha B visa c1auificatlon Opportunity CommissioD is'proposi:Qs\ "',
List ofSabjectB ill 21 mPad'1313
rnult1Dg primarily from the ena.ctment revision to its Guidelines on ':. . ' .... ,\: ,", ';
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IIl'e mVising the guid&11nBB to ~ect .: .: .. : ~~•.. ~
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. November 23, 1993. ' ,
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Washington. D.C. 20507
ANALYSIS
OF
PROPOSAL ON RELIGIOUS
EXPRESSION IN THE WORKPLACE
We have reviewed the proposed Executive Order on religious
expression in the federal workplace.
Portions of the proposal do,
not appear. to ,fully take account of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq., as it 'applies
to religious discrimination and to harassment more generally.
Because EEOC's authority extends' to Title VII. and not the
Constitution,
we will confine our discussion to Title VII
questions.
OVERVIEW
First, portions of the text are likely to mislead or confuse·
agencies about their obligations under, Title VII harassment law.
For example, statements that religious expression must be treated
like any other controversial or non-religious speech 1 run counter
to the very premise of Title VII harassment law: that employees
cannot be subj ected to hos,tili ty or abuse based on their race,
color, sex, religion or national origin.
Thus, Title VII treats
expression on these bases differently from other expression and
requires regulation of such :expression to the extent that it
communicates a quid pro quo or is sufficiently severe and pervasive
to create a hostile working environment.
Second, parts of the draft may similarly mislead agencies
about their accommodation obligations, including their need to
consider whether accommodation of one employee's religion impairs
the conditions' of employees with different religious beliefs or
practices.
Third, the format of the draft is confusing.
Principally,
this flows flfom treating IIguiding legal principles II separately from
and subsequent to the substantive "guidelines for 'religious
'expression. II
If an Order is adopted, at the least, the entire
first and second sections should be integrated.
1
See e.g., p. 2 (supervisors may wear buttons carrying
messages about religion to the same extent that they are permitted
to wear other controversial buttons of a non-religious nature) ; pp.
6, 7 (employees should be permitted to engage in religious
expression to the same extent that they may engage in comparable
nonreligious private expression) ;'.:"
�DISCUSSION
I.
Harassment
A.
Implications of Supervisory Role on Religious Expression
1.
Supervisory Speech Need Not Convey a Quid Pro Quo
·To Be Unlawful
The admonition (p. 2) that supervisors should "assess their
religious conduct to ensure that employees do not perceive an
unintended quid pro quo . . . " disregards several important facts
central to harassment law. First, there is no bright line between
quid pro quo and hostile environment harassment.
Carrero v. New
York City Housing Authority, 890 F. 2d569, 579 (2d Cir. 1989). A
given set of facts may be regarded as either -- or both -- quid pro
quo or hosti.1e environment harassment. Agencies can be liable if
an employee establishes that the conduct created an unlawful
hostile working environment even absent an explicit or implicit
"quid pro quo." 2 Although the draft recognizes the distinction in
its subsequent discussion of hostile work environment, nothing in
this portion of the draft, or in the examples that follow it at p.
3,warns agencies or individuals that conduct can be unlawful even
if it passes the "coercion" test.
2.
The
Possibility of Coercion
Is
Supervisor/Subordinate· Relationship
Inherent
in
the
Seccind, the draft largel~ignores the fact
recognized in
current law
that the relationship between supervisors and
employees is to some extent inherently coercive. For example, the
suggestion that· supervisory expression is protected when it "does
not carry coercive overtones" (p. 2); fails to convey that such
overtones may be implicit in· the nature of the' supervisor/
subordinate relationship. 3
It is not enough to say that
supervisors should be aware of the "possibility" that "some"
employees might perceive their religious expression as coercive.
Recognizing the inherent coerciveness in the relationship role,
courts hold employers strictly liable under Title VII for quid pro
harassment. Similarly, while employers are only liable for hostile
2
Moreover,it is unrealistic to assume that an alleged
harasser is able objectively to evaluate the perceptions of his/her
employees. Title VII harassment law has developed in no small part
because supervisors have so frequently misunderstood the effect of
their conduct on their subordinates.
3
As such, it is insuff{cient to state that a supervisor
may not" insist" that employees participate in religious activities
or "insist" that employees refrain from such participation. (p.2,
§ 2).
It is well established that Title VII liability for
religious discrimination can attach to supervisory conduct that
falls short of ." insistence. "
�envirenment harassment by ce-werkers if they knew er sheuld have
knewn ef the harassment, 'they ar'e liable fer a greater rarige ef
supervisery miscenduct. See, e. g., Meri ter Savings Bank v. Vinsen,
477 U.S.
57,
72
(1986)(empleyer liability fer supervisery
harassment is determined under agency principles i knewledge is net
required) i Karibian v. Celumbia University, 14 F.3d 773, 779 (2d
Cir. ·1994) (" [i] t will certainly be relevant to' the analysis . . .
that the alleged harasser is the plaintiff's superviser rather than
her ce-werker" (citatiens emitted)), cert. denied, 114 S. Ct. 2693
(1994)].
3.
Even Cenduct That Dees Net Rise to' the Level ef Unlawful
Harassment May Be Censidered Evidence ef Unlawful Bias
Finally, the draft. igneres the fact that a superviser's
expressiens ef religieus belief can be evidence ef bias if
empleyment decisiens are later made that penalize these who. de net
share the superviser's views. Under Title VII, agencies are liable
net enly fer quid pre que er hestile envirenment harassment, but
also fer any adverse act·ien taken en a pretected basis.
Thus, it is misleading to' breadly state that a superviser's
comment that "religien is impertant in ene's life" (example (d), p.
2), will be pretected. so. leng as
dees net IImaterially disrupt
the werking envirenment er·cause the empleyee reasenably to' ,feel
intimidated er ceerced." . If an empleyee who. attends church er
temple enly speradically, er no.): at all,is net premeted, (s) he may
well use this cemment as evidence that casts deubt en the agency's
assertien that the actien was taken fer lawful reasens.
While a ceurt is unlikely to' rely en an is elated cemment, a
pattern ef' such cemments might be seen as evidence ef bias.
Similarly,
while
a
ceurt .weuld . presumably
accerd
little
significance to' a lunchtime debate abeut abertien in which
differing views were expressed (example (e)., p. 3), it is net
necessarily true that such statements have no. legal implicatiens
lIunless [supervisers] take further steps to' ceerce agreement with
their views. 11
Empleyees who. held eppesing views ceuld use the
cenversatien as· evidence that any unfav6rable treatment ef them was
due to' their differences with their superviser.
Such arguments
might succeed,. to' the extent that the cenversatien was part ef a
pattern ef related remarks. Accerdingly, admenishing agencies to'
be uncencerned abeut such statements is ill advised.
B.
Hestile Envirenment Harassment Generally
The Supreme Ceurt has held that "Title VII afferds empleyees
the right to' werk in. an envirenment freefrem discriminatery
intimidatien, ridicule and insult,'" whether based en sex, race,
religien er natienal erigin. Meriter Savings Bank v. Vinsen, 477
U.S. 57, 65 (1986)'.
See also., Harris v. Ferklift Systems,114
S.Ct. 367 373 (1993) (Ginsburg J. cencurring) (IITitle VII declares
1
1
�discriminatory practices based on race, gender, religion, or
national origin equally unlawful").
Conduct, including verbal
conduct, will violate Title VI I if it is "unwelcome" and is
sufficiently severe or pervasive that a reasonable person would
find the environment to be 6bjectively hostile or abusi~e. Id. at
67-68;
Harris v. Forklift Systems, 114 S.Ct. at 370.
The draft
Order fails to account for each of these elements and, thus, again
fails to alert agencies to the true scope of their potential Title
VII'liability.
First, the draft introduces a dichotomy between "derogatory"
and "non-derogatory" expression tha't is not present in Title VII
case law. As a related matter, much of the draft fails to account
for the fact that allegedly harassing speech is not analyzed in a
vacuum but is considered in light of all of - the surrounding
circumstances.
Second, it fails to appreciate that the issue is
whether the listener reasonably perceived the comments as hostile
,or abusive, not whether the speaker intended hostility.
Finally,
the draft understates the extent of the agencies' potential
liability for harassment by supervisors.
1.
Whether, E:xpression Violates
Title VII
Determined Merely By Determining Whether
Characterized As "Derogatory"
Cannot
It Can
Be
Be
The
draft
appears
to suggest
that
r~ligious
hostile
environment theory is limited to explicitly derogatory language and
that affirmative expressions of religion such as proselytizing are
broadly permitted. See, e.g., p. 3 (religious hostile environment
harassment is "pervasive and severe religious ridicule or -,insult"
and "use- of derogatory language in an assaultive manner") i_ 3 p. 4
(ex'amples of "derogatory" comments); p.7 § 3 '("employees are
permitted to discuss religious topics with fellow employees and,may
even attempt to persuade fellow employees of the correctness of
their religious views.
. and may urge a colleague to participate
or not participate in religious activities to the same extent they
may urge their colleagues to engage or refrain from other personal
endeavors"); p. 10 ("use of derogatory language directed at - an
employee can rise to the level of religious harassment if it is
severe or invoked repeatedly") .
Under Title VII, 'however, the question of whether verbal
conduct is unlawful harassment turns not on any label _placed on it,
i.e., whether the comments are "derogatory" or "insulting," but on
3
We are puzzled by the formulation that employees should
not suffer "a hostile environment or religious harassment" (p3, §
3) (emphasis added) inasmuch as the two are not separate concepts
in the law.
As discussed, infra, the correct inquiry is whether
unwelcome harassing conduct is sufficiently severe or pervasive to
create a hostile environment.
4 _
.
,"
�whether, in light of all,of the surrounding circumstances, they are
reasonably perceived as "creat[ing] a work environment abusive to
employees because of their.
. religion .
"Harris v.
Forklift Systems, 114 S.ct. at 371. The legal analysis in section
2 of the draft acknowledges the importance of looking at the
totality Of the circumstances (e.g. p. 10), but section 1 conveys
a contrary message.
It is. not helpful
and may well be misleading
to
affirmatively urge agencies to consistently overlook· or ignore
religious exp;ression simply because it might be characterized as
"non-derogatory" or as "proselytizing."
(See pp. 6
8) .
In
failing to recognize that a functional test must be applied to
determine whether conduct is unlawful, the draft fails to inform·
agencies that even conduct that the harasser may not intend as
derogatory, when unwelcome, can violate Title VII~
The draft's statement that the proselytizer should stop when
the listener requests him or her to stop, based"on "a principle of
civility in the federal workplace,"while true as far as it goes,
disregards the governing legal framework. The proselytizer should
also stop when asked to because failure to do so will constitute
unwelcome and potentially unlawful, religious harassment.
Analytically, allegations of religious harassment share
certain similarities to other harassment cases.
In each, the
expression made by the supervisor or colleague may not be hostile
in any respect. Indeed, the supervisor or co-worker may sincerely
. have intended the ,conduct as completely positive and supportive .
.In the context of .sexual harassment, for example, an unlawful
hostile environment can be created by repeated unwelcome re.quests
to go out on a date. Under the governing analytical framework set
forth by the Supreme Court '(supra at 4), repeated unwelcome
requests to attend church services,
or repeated unwelcome
statements about one's religious views, can create an unlawful
hostile environment.
To counsel that only derogatory statements
can lead to liability may thus leave agencies vulnerable to claims
that they have taken insu~ficient action against severe and
pervasive -- but arguably non-derogatory -- religious speech and
conduct.
2.
It Is Critical to Consider Whether a Reasonable Person
Would Perceive the Expression As Hostile
Under well established harassment law, the inquiry is whether
the "conduct .
i s . . severe or pervasive enough to create
an objectively hostile or abusive work environment
an
environment that a reasonable person would find hostile or abusive
. and [whether] the victim.
. subjectively perceive[d]
the environment to be abusive."
Harris v. Forklift Systems, 114
S.Ct. at 370 (emphasis added).
In her concurrence, Justice
Ginsberg observed that" [i]t suffices to prove that a reasonable
5 · ..
,
�:
person subjected to the discriminatory conduct' would find . . .
that harassment has so altered working conditions as to 'ma[kJe it
more difficult to do the' job.'" 114 S.Ct. at 372 (citation
omitted) (emphasis added).
The draft does not discuss the
significance of the reasonableness standard but at various points
makes generalized assertions of what is or is not reasonable.
(See, e. g., p. 3 , example (e), in the context 'of a discussion of
quid pro quo harassment: "without more neither these of these
comments should reasonably be perceived as coercing employees'
religious conformity or conduct; p. 4, 'examples making assumptions
about reasonableness without discussion).
Although we certainly
recognize the difficulties in applying the reasonableness analysis,
it cannot be ignored, nor can it be dealt with by simple assertions
that certain reactions to religious speech/conduct mayor may not
be reasonable. Harassment jurisprudence demands more.
3.
The Draft Understates the Extent of Employer ,Liabilit,y
The draft states on the top of page 4 that the liability of
the Federal Government for hostile ,environment harassment would
depend on such factors as "whether supervisors in the agency knew
or should have known of the harassment and the actions the agency
takes in response to that harassment." However, it is the position
of s\everal courts and the EEOC that an employer is liable for
hostile environment harassment by a supervisor regardless of
knowledge. whenever the supervisor was aided by powers delegated by
the employer in carrying out the harassment.
II.
Accommodation
The draft correctly states that Title VII requires employers
to make exceptions to neutral rules that burden an employee's
religious beliefs or practices and must accommodate such emploljee' s
practice unless doing so would impose an· undue hardship on the
conduct of the agency's business.
It ~lso accurately notes that
the hardship need be no more than de minimis. Trans World Airlines
v. Hardison, 432 U.S. 63, 84 (1977). 4
The Commission has
consistently b~en a vigorous proponent of accommodation.
See,
e.g., Guidelines on Discrimination Because of Religion, 29 C.F.R.
§ 1605.2; EEOC 'v. University of Detroit, 904 F.2d 331 (6th Cir.'
,1990) (proposal to reduce employees union dues not sufficient
"
4
It is worth noting that in the course of 'remonstrating
with what .he perceived as the majority's narrow reading of' the'
employer's accommodation obligation, Justice Marshall observed that
"important constitutional questiOns would be posed by interpreting
the law to compel employers (or fellow employees) to incur
substantial costs to' \aid the religious observer."
Trans World
Airlines v. Hardison, 432 U.S. 63, 90 (1977)
(Marshall, J.
dissenting) (footnote omitted) .
�J
accommodation of employee's stated religious objection to· having
any association with the union) .
1.
Accommodations Provided for Non-Religious Reasons Are
Relevant but not Dispositive of Whether Providing the
Accommodation Would Cause Undue Hardship
However, in providing that!! [rJeligious accommodation cannot
be disfavored vis-a-vis other I nonreligious accommodations [and
thatJ a religious accommodation cannot be denied if the agency
regularly permits similar accommodation for nonreligious purposes!!
(p. 5), the draft misstates the proper standard. The legal inquiry
is not whether the agency permits similar accommodation for other
purposes, but whether the accommodation can be provided without
causing more than de minimis hardship to the conduct of the
agency's business.
It is true that an employer who routinely provides exceptions
to.the neutral rule at issue for non-religious reasons will usually
be hard-pressed to prove that providing a similar accommodation for
religious reasons is a hardship.
However, it is not accurate to
say that the employer could never prove that the accommodation in
a particular instance would be an undue hardship. 5
3.
An Accommodation for One Employee
Hardship for Other Employees
Cannot
Create
a
. Some of the draft '·s examples of appropriate accommodation seem
to·overlook a significant. strain in accommodation law; namely the
principle that it is an undue hardship for the· employer to be
·required to provide an accommodation for one employee that burdens
5
The principle that accommodation for one purpose does not
riecessarily compel accommodation. for religious purposes is
exemplified ~y the requirements of the Rehabilitation Act of 1973,
29 U.S.C. § 791 et peq.
That Act compels federal employers to
provide reasonable accommodations for qualified. individuals with
disabilities unless to do so would impose an "undue hardship!! on
its operations. "Undue hardship,!! for Rehabilitation Act purposes,
is defined as "significant difficulty or expense," and the
appropriate regulations and. caselaw clearly indicate that ·this is
a substantia1ly higher standard than the "de minimis" standard
associated with the provision of religious accommodation pursuant
to Title VII.
Thus, federal employers may have to provide
accommodations for individuals with disabilities, even if those
accommodations r~sult in more than a de minimis cost to the agency.
The language of the proposed draft, however, suggests that such
c6mpliance with the Rehabilitation Act could be construed as
"disfavoring" r~ligious accommodation, thus compelling the agency
to violate either the Executive Order on religious expression or
the Rehabilitation Act:
.
I
�another employee.
(See, e.g., p.5, example (a) (by substituting
the word II adequate II for IIvolun~ary,lI. edits suggest that an agency
can adjust wor,k schedules even if another employee must
involuntarily take on the accommodated employees duties}) .
In Hardison; the Supreme Court ruled that to require other
employees to suffer an employment detriment in the' process of
accommodating the first employee would constitute undue hardship.
See, e.g., 432 U.S. at 81 (TWA could have granted Hardison and
others like him days off for religious observance lIonly at the
expense of others who had strong but perhaps nonreligious reasons
for not working on weekends . . . TWA would have ,had to deprive
another employee of his shift preference at least in part because
he did not adhere' to a religion that observed the Saturday
Sabbath") i id. (" [i] t would be anomalous to conclude' that by
'reasonable accommodation' Congress meant that an employer must
deny the shift and job preference of some employees, as well as
deprive,them of their contractual rights,in order to accommodate
or prefer the religious needs of others, and we conclude that Title
VII does not re'quire an employer to go that far").
See also,
Beadle v. Sheriff's Department, 29 F.3d 589 (11th Cir. 1994) (an
employer can rely on a neutral rotating shift system to accommodate
an employee's religious practices; the system need not be part of,
a seniority system) .
Thus" Hardison and its progeny signify that it would be
problematic to change work schedules because of one employee's
religion unless a "voluntary" exchange could be made. Similarly,
. example (c) on'p: 5, while not wrong, does not make clear that the
impact on other employees must be part of the calculus.
3.
Religious Expression That ;Rises to the Level.of Unlawful
Harassment Is an Undue Hardship
Title VII's accommodation provision requires an employer who
has a neutral rule banning, for example, all employee expression
about arguably controversial topics, to permit religious expression
unless the employer proves that such expression would create an
undue hardship.
As a practical matter, it will be difficult to
prove that passive and non-derogatory religious expression
constitutes an undue ~ardship. Thus, employers should ordinarily
permit employees to wear a yarmulke, cross or shador. EEOC Dec. No.
71-2620, 4 FEP 23 (June 25, 1971) (ankle length dress) i EEOC Dec.
No. 71-779, 3 FEP 172 (Dec. 21, 1970) (head covering).
See also
, Carter v. Bruce Oakley, Inc., 849 F. Supp. 673. (E.D. Ark.
1994) (beard); EEOC v. Electronic' Data Systems, 31 FEP Cases 588
(W.D. Wash. 1983) (beard). 6 Similarly, it would be difficult to
6
But see, Bhatia v. Chevron,734 F.2d 1382 (9th Cir. 1984),
(where Sikh employee's beard interfered with wearing of respirator
with gas tight face seal and OSHA required use of the respirator,
. : .. '
�establish undue hardship if the employee's religious expression is
not harassing and is not reasonably perceived by employees as
demonstrating bias. See Brown v. Polk. Co., 61 F.3d 650, 656 (8th
Cir. 1995) (employer could have accommodated voluntary, sporadic and
spontaneous prayers during meetings with supervisors ·where affected
employees perceived no bias on part of supervisor), cert. denied,
116 S.Ct. 1042 (1996).
However, the accommodat~on requirement falls on employers, not·
on employees.
The ,Court has made clear that religious
accommodation of one employee cannot create a hardship for another.
To require an employee to tolerate expression that rises to the
level of unlawful harassment would be an undue hardship.7 Nothing
in accommodation law alters the standards' for determining when
expression is unlawfully harassing.
Examination of harassment allegations requires looking at all
of the surrounding facts and at patterns of conduct. Thus, if such
expression is unwelcome and is repeated, it will at some point rise
to the level of unlawful harassment. 8
Conclusion
As we have set forth, substantial questions are raised by the
draft in connection with Title VII analysis. Please let us'know if
we can be of further assistance in addressing these important
issues.
it would be ,an undue hardship for employer to excuse wearing it,
reVamp its duty assignment and expose other employees to Bhatia's
share of hazardous work). Cf. Goldman v. Weinberger, 475 U.S. 503
(1986) (strict enforcement of military uniform code,prohibiting
wearing a yarmulke, did not infringe Goldman's Constitutional right
to religious liberty).
7
Cf. Spratt v. County of Kent, 621 F. Supp. 594 (W.O.
Mich. 1985), aff'd, 810 F. 2d 203 (6th Cir. 1986), cert. denied,
480 U.S. 934 ,(1987) (to allow social"worker to use religious
counseling of client would be , undue' hardship because the
Establishment Clause requires the limitation).
See also Baz v.
Walters, 782 F.2d 701 (7th Cir. 1986) (Chaplain fired from VA
hospital because his form of proselytizing to psychiatric patients
was antithetical to VA's philosophy of care and a reassignment
would have interfered with job preferences of other employees) .
a
As noted,
a single invitation to embrace another
religion, standing alone, would not constitute an unlawful hostile
environment under Title VII.
Nevertheless, when issued by a
supervisor, such invitations can quickly become problematic .
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Stephen Warnath - Civil Rights Series
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Stephen Warnath
Civil Rights Series
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-1997
Is Part Of
A related resource in which the described resource is physically or logically included.
<a href="http://clinton.presidentiallibraries.us/items/show/36406" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Description
An account of the resource
Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
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Clinton Presidential Library & Museum
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Adobe Acrobat Document
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134 folders in 13 boxes
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Paper
Dublin Core
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Title
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[Harassment - Religious and Consolidated Guidelines]
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Steven Warnath
Civil Rights Series
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 10
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/Warnath-DPC-Civil-Rights.pdf" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
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Clinton Presidential Library & Museum
Medium
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Reproduction-Reference
Date Created
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2/8/2012
Source
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641686-harassment-religious-consolidated-guidelines-b
641686