On Jan. 15, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) approved a revised version of its Compliance Manual’s section on religious discrimination in the workplace. The guidance in the manual does not carry the force and effect of law, but gives “clarity to the public regarding existing requirements under the law or agency policies.”

The EEOC is the primary federal agency charged with enforcing anti-discrimination laws. An employee may file a claim of unlawful discrimination or harassment at work with the EEOC.

The manual has not been revised since 2008 and the newly revised version of Section 12: Religious Discrimination incorporates important changes to the law, especially from court decisions. One of the topics with “important updates” is harassment based on religion (or lack of religion), a type of religious employment discrimination.

Two types of religious harassment

The revised manual covers all major aspects of religious harassment in detail, providing many examples. It explains that, like other kinds of illegal harassment, harassment based on religion can be either of these types:

  1. Quid pro quo: Also called religious coercion, an employer may not base an offer of employment or a job benefit or the withholding of negative employment action on a requirement that the employee “abandon, alter, or adopt a religious practice.”
  2. Hostile work environment: Religious harassment – verbal or physical – occurs when an employee experiences unwelcome behavior or statements at work concerning religion or lack of religion (such as to an atheist) that are either very severe or regular over time, causing the employee to experience an abusive or hostile environment that “alters the conditions of employment.” The harassment may include taunting and insults, proselytizing and ridicule. Harassment may directly mention religion or imply it.

For religious harassment to alter employment conditions, the victim must not have objective loss like a demotion, psychological injury or negative impact on performance (although those would likely be sufficient). For example, the behavior could cause distress or fear that alters the conditions of employment.

Harassing conduct that is very severe on a one-time basis may constitute illegal harassment, but an insensitive comment now and then is likely not unlawful. However, even if not severe, offensive statements or behavior based on religion, if made frequently over time, can rise to the level of illegal harassment.

An attorney can advise an employee about religious harassment, including how to respond and potential legal remedies.

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