EEOC-Initiated Litigation - 2022 Edition

22 | EEOC-Initiated Litigation: 2022 Edition © 2022 Seyfarth Shaw LLP resulted in a constructive discharge . 137 The Court first explained the basis for a religious accommodation claim under Title VII: “Under Title VII, it is ‘unlawful’ for an employer ‘to fail or refuse to hire or to discharge any individual . . . because of such individual's . . . religion.’ . . . The statute defines ‘religion' to include 'all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.’ . . . This definition ‘includes a requirement that an employer ‘accommodate’ an employee's religious expression.’” 138 Under a religious accommodation theory of discrimination, a plaintiff must establish that (1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; and (3) he or she was disciplined for failure to comply with the conflicting employment requirement. 139 If the plaintiff meets these requirements for a prima facie case, the burden then shifts to the employer to show that it could not accommodate the religious needs without undue hardship . 140 The employer conceded that the employee had a bona fide religious belief that conflicted with its uniform policy and that it had been informed of this belief. But it argued that the charging party had not been constructively discharged and had not suffered an adverse employment action. 141 The Court held that “even if [charging party] qualified only as an applicant, she was nonetheless entitled to be free of discrimination on the basis of religion in the hiring process. ” 142 The Court also found that the charging party had been presented with the employer’s uniform policy as a “What are you going to do?” ultimatum. 143 The employer had plenty of time to clarify its policies and clear up any confusion with the charging party, but it had not done so. 144 Finally, the Court noted that there was some factual dispute as to the tolerability of charging party’s working environment, noting that the employer questioned the charging party’s affidavit in light of allegedly conflicting deposition testimony . 145 But the Court found that she had not been explicitly asked about the matters contained in the declaration at her deposition, and that “[a]t a minimum, [charging party’s] averment that wearing a ‘form fitting skirt’ would ‘prevent her from attaining paradise’ creates a genuine issue of material fact regarding the intolerability of the prospective conditions of training and employment at Greyhound.” 146 Although the focus of the EEOC’s efforts to combat religious discrimination have most often centered around issues of anti-Muslim bias, in more recent years, the EEOC has demonstrated a willingness to pursue religious discrimination claims on behalf of other religious groups as well . 147 On January 15, 2021, 137 Id . 138 Id . at *7 (quoting 42 U.S.C. § 2000e-2(a), § 2000e(j), Chalmers v. Tulon Company of Richmond , 101 F.3d 1012, 1017-18 (4th Cir. 1996)) (citations omitted). 139 Id . at *8 (quoting EEOC v. Consol Energy, Inc ., 860 F.3d 131, 141 (4th Cir. 2017)). 140 Id . 141 Id . at *9. The employer relied on three arguments: that the charging party was a trainee at the time and therefore not an employee, that she failed to engage her employer in an interactive process in an attempt to arrive at a mutually acceptable accommodation, and that she had not experienced intolerable working conditions, an element of a claim of constructive discharge. Id . at *10. 142 Id . at *11. 143 Id . 144 Id . 145 Id . at 12-13. The charging party had submitted an affidavit regarding the sincerity of her religious belief and the impact that the employer’s uniform policy would have on her. The employer argued that it was a “sham affidavit” because it conflicted with parts of her deposition testimony. 146 Id . at 13. The court then considered and rejected the employer’s arguments about undue hardship, concluding that the employer’s record evidence was deficient, and “on this record, the court cannot conclude, as a matter of fact or law, that [charging party’s] requested accommodation would have resulted in a safety risk or an undue burden on [employer]. Rather, the evidence creates triable issues of fact as to whether [charging party’s] preferred accommodation would have caused a legitimate safety issue or imposed more than aa de minimis cost’ on [employer].” Id . at *16 (quoting Trans World Airlines, Inc. v. Hardison , 432 U.S. 63, 84 (1977)). 147 The EEOC’s focus on protecting employees’ rights to practice their religion in the workplace is not limited to workers of Muslim or other mainstream faiths. The EEOC has brought several lawsuits in recent years that target different kinds of religious practice. For example, in EEOC v. United Health Programs of America, Inc. and Cost Containment Group Inc. , 213 F. Supp. 3d 377 (E.D.N.Y. 2016), the EEOC successfully argued that concepts known as “Onionhead” and “Harnessing Happiness” were entitled to Title VII protection as religious beliefs. Id. at *3-5. The court held that to determine whether a given set of beliefs constitutes a religion for purposes of Title VII, “courts frequently evaluate: (1) whether the beliefs are sincerely held and (2) whether they are, in [the