A newly announced religious discrimination settlement reminds employers of the advisability of reviewing and strengthening the defensibility of their grooming, dress code, scheduling and time off and other employment policies, practices and other procedures for applying, granting or denying religious exceptions, and other employment practices to defend against potential discrimination exposures in light of rising religious sensitivities, the Supreme Court’s 2023 ruling in Groff v. DeJoy, 143 S. Ct. 2279 (2023) and emerging Equal Employment Opportunity Commission (EEOC) guidance and enforcement.

Religious Discrimination & Accommodation Under Civil Rights Act

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion and requires employers to reasonably accommodate an employee’s religious observance or practice, unless an accommodation would impose an undue hardship. The Civil Rights Act prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. It also prohibits:

• Forcing an employee to participate (or not participate) in a religious activity as a condition of employment;
• Subjecting an applicant or employee to offensive remarks about a person’s religious beliefs or practice or other harassment that creates a hostile or offensive work environment or results in an adverse employment decision or other job detriment or certain other types of harassment, whether by the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer;
• Workplace or job segregation based on religion including religious garb and grooming practices;
• Failing to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause a burden that is substantial in the overall context of the employer’s business taking into account all relevant factors, including the particular accommodation at issue and its practical impact in light of the nature, size, and operating cost of the employer; and
• Retaliating against an employee or applicant based on good faith exercise of his right to be free from religious discrimination or cooperation in investigations or other protected activities.

The duty to provide religious accommodation applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee follows as part of the employee’s religious reasons such as wearing particular head coverings or other religious dress or hairstyles or facial hair. It also includes an employee’s observance of a religious prohibition against wearing certain garments such as pants or miniskirts. 

Under the Civil Rights Act, the obligation to provide religious accommodation generally applies unless the employer demonstrate that the accommodation of the employee’s religious beliefs or practices would cause undue hardship to the employer. The burden of proving an undue hardship rests on the employer, who must show that the accommodation burden is substantial in the overall context of an employer’s business, taking into account all relevant factors in the case at hand, including the particular accommodation at issue and its practical impact in light of the nature, size and operating cost of the employer. 

The Supreme Court’s 2023 decision in Groff v. DeJoy confirms employers seeking to defend their denial of a request for religious accommodation must be prepared to prove granting the religious accommodation request would impose a significant burden on the employer, holding the defense of undue hardship requires proof a burden that is “substantial in the overall context of an employer’s business” “taking into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, size and operating cost of an employer.” Mere proof a a “de minimis cost” will not suffice. See also EEOC Notice Concerning the Undue Hardship Standard in Title VII Religious Accommodation Cases.

Blackwell Security Services Religious Discrimination Litigation Settlement

The settlement with Blackwell Security Services, Inc. (Blackwell) recently announced by the EEOC highlights the challenge employers should anticipate facing in defending a denial of an employee or applicant request for exception from a dress code, grooming or other employer policy for religious reasons. 

On January 31, 2024, the EEOC announced Blackwell will pay $70,000 and provide other relief to settle the EEOC’s religious discrimination lawsuit that charged Blackwell wrongfully refused to accommodate a Muslim employee’s religious practice of wearing a beard in observance of his religious beliefs.

According to the EEOC, shortly after Blackwell hired the employee, a Blackwell supervisor told the employee that company policy required all employees be clean-shaven. When the employee requested an exemption from the policy to accommodate his religious practice, Blackwell told him to shave his beard or face termination even though the EEOC determined accommodating his religious practice would impose no cost or operational burden on the business. To avoid losing his job, the employee complied and shaved his beard, causing him significant distress.

Under the consent decree resolving the EEOC lawsuit, Blackwell will pay $70,000 in compensation to the now-former employee. Blackwell will also provide training to relevant management employees on federal laws prohibiting religious discrimination and will report any additional complaints of religious discrimination to the EEOC for the decree’s duration.

Employee Religious Discrimination Risks Rising

The EEOC charge and lawsuit against Blackwell is one of a deluge of religious discrimination charges filed with the EEOC in recent years. In fact, EEOC enforcement data shows that religious discrimination charges received by the EEOC soared from 2,111 in 2021 to 13,814 in 2022 while over the same period settlements rose from 146 in 2021 to 730 in 2022.

Religion-Based Charges (Charges filed with EEOC) FY 2013 – FY 2022
	FY 2013	FY 2014	FY 2015	FY 2016	FY 2017	FY 2018	FY 2019	FY 2020	FY 2021	FY 2022*
Receipts	3,721	3,549	3,502	3,825	3,436	2,859	2,725	2,404	2,111	13,814
Resolutions	3,865	3,575	3,736	3,827	3,997	3,653	3,001	2,570	2,080	7,453
Settlements	331	268	275	266	233	151	171	144	146	730
Reasonable Cause	168	116	139	121	119	282	123	103	59	60
Monetary Benefits (Millions)**	$11.2	$8.7	$10.8	$10.1	$11.2%	$9.2	$9.9	$6.1	$9.5	$12.8
The chart represents the total number of charges filed and resolved under Title VII alleging religion-based discrimination as compiled by the Office of Enterprise Data and Analytics from data compiled from the EEOC’s Integrated Mission System.  This does not include charges filed with state or local Fair Employment Practices Agencies.  *EEOC notes, “In FY 2022, there was a significant increase in vaccine-related charges filed on the basis of religion. As a result, FY 2022 data may vary compared to previous years.”  ** Does not include monetary benefits obtained through litigation. See https://www.eeoc.gov/data/religion-based-charges-charges-filed-eeoc-fy-1997-fy-2022.

A number of factors have fueled the sharp rise in religious accommodation and other religious discrimination risks. Along with the Supreme Court’s affirmation of the high burden of proof employer must meet to justify refusing to grant religious accommodations to employees in Groff v. DeJoy, a series of religious accommodation guidance issued by the EEOC during and following the COVID-19 pandemic health care emergency and demands for religious accommodation exemptions to COVID-19 mask and vaccination mandates heightened awareness and the volume of religious discrimination claims filed with the EEOC.  See, e.g., What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Unsurprisingly, charges from these COVID-19 related and other religious accommodation claims brought since the COVID-19 pandemic health care emergency has and continues to fuel litigation, settlements and judgements. See, e.g., Children’s Hospital Pays $45K To Resolve COVID Vaccine Religious Discrimination Suit.

The already heightened awareness fueled during the COVID-19 health care emergency has been further heightened by EEOC and other governmental guidance and outreach in response to rising potential religious and national origin discrimination concerns arising from the Israeli/Palestinian conflict and various other international events. See e.g., Resolution of the U.S. Equal Employment Opportunity Commission Condemning Violence, Harassment, and Bias Against Jewish Persons in the United States; What to Do If You Face Antisemitism at Work; Anti-Arab, Anti-Middle Eastern, Anti-Muslim, and Antisemitic Discrimination are Illegal; Religious Garb and Grooming in the Workplace: Rights and Responsibilities; Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities‘ Employment Discrimination Based on Religion, Ethnicity, or Country of Origin; Q&A for Employees: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern; Q&A for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern.

With these and other events continuing to escalate sensitivities and awareness of federal laws against religious discrimination, health care and other organizations should act to strengthen their ability to recognize and respond defensibly to religious accommodation and other religious discrimination risks whether arising from patients and other customers, employees or others.

Act To Mitigate Religious Discrimination Risks

In the face of the prioritization that the Biden Administration generally and OCR specifically is placing on religious and national origin in connection with the current Israeli-Palestinian hostilities, all covered facilities should brace for heightened oversight and enforcement by OCR the EEOC and other federal agencies, as well as private litigants. These organizations also should guard against retaliation liability, which can result even where the discrimination claim fails.

As a starting point, health care and other organizations should begin by reviewing their existing complaint history, policies, practices, training, reporting and investigation practices within the scope of attorney-client privilege and revise these policies as needed to strengthen their defensibility.

In connection with this review, health care and other organizations should ensure that their policies, procedures and notices clearly prohibit religious discrimination as well as communicate procedures for persons that believe their religious beliefs merit accommodation or otherwise believe they are subject to religious harassment or other discrimination to communicate their request to a representative of the organization appropriately trained to receive, evaluate and respond to the accommodation request defensibly. Most organizations will want to arrange for qualified legal counsel to be readily available to assist the responsible party with these activities. 

Organizations should consider adopting carefully crafted and documented internal procedures for receiving, investigating and responding to religious accommodation request in a manner that promotes their organization’s ability to demonstrate each request is assessed in accordance with the law free from the inappropriate application of assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate. Organizations should train managers and supervisors to grant religious accommodation requests whenever possible and to refer any questions about the appropriateness or response to any religious accommodation request to the designated responsible party.

When faced with a request for a religious accommodation which the organization believes cannot be implemented without undue hardship, most organizations will want to seek the advice of legal counsel while exploring opportunities to allow the requested or an alternative accommodation on a temporary basis pending further exploration of the requested more permanent accommodation. Appropriate communication and documentation processes also are important. In addition, all organizations will want to ensure that their organization takes appropriate steps to prevent and defend against potential retaliation claims.

Due to the legal and political sensitivity of the practices and analysis involved, employers and others involved in the review of these policies and practices or their application when handling religious accommodation requests or other events raising the potential for religious, national origin, race or related concerns, employers also should consider involving experienced legal counsel about the circumstances, as well as to take advantage of the availability of attorney-client privilege and other evidentiary rules to help mitigate exposures and enhance the defensibility of their actions.

For More Information

We hope this update is helpful. For more information about these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297. 

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair of its International Employment Law Committee, Chair of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on employment, heath benefit and other healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services, retail, manufacturing, hospitality, and other organizations of all types and their technology, data, and other service providers and advisors domestically and internationally with employment, employee benefit, compensation, worker classification, contracting, data privacy and security, Federal Sentencing Guideline and other governance and internal control and other rules specifically relating to workforce management, as well as industry and business specific internal controls and other performance management required to manage regulatory, contractual and operational compliance and risk management. Her experience includes decades of involvement advising and representing employers, educational organizations, health care organizations, and other businesses on Civil Rights Act and other federal, state and local discrimination laws.

Author of a thousands of highly regarded publications on HIPAA and other medical record and data privacy and scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws. 

For more information about Ms. Stamer, her legal, business and governmental relations consulting, training, public speaking or other services, experience and involvements , see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

About Solutions Laws Press, Inc.™

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