What the DOJ’s Religious Freedom Guidance Means for Private Employers

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Quick Hits

• The DOJ recently published guidance that clarifies legal protections for religious beliefs and practices in the federal workplace, consistent with recent executive orders and decisions from the U.S. Supreme Court.
• The U.S. Constitution, Title VII of the Civil Rights Act of 1964, and the Religious Freedom Restoration Act of 1993 (RFRA) protect religious expression and practices by individuals and organizations.
• The new guidance is directed to federal agencies, but it may give private employers insights into governmental regulators’ enforcement approaches and priorities, and well as potential claims brought by employees and their attorneys.

The U.S. Constitution protects the right to belief and worship, as well as the right to abstain from belief or worship. Additionally, Title VII and the RFRA protect religious expressions and practices by individuals and organizations, including those “employing others,” as the DOJ guidance explains. The guidance outlines a series of principles to guide federal agencies in ensuring compliance with these federal laws. Those principles have implications for private employers, including with regard to workplace conduct and expression, as well as religious accommodations.

Expansive Definition of Protected Religious Exercise

The guidance defines the “free exercise of religion” as encompassing not just belief or worship but “the right to perform or abstain from performing certain physical acts in accordance with one’s beliefs.” This language signals a federal enforcement approach that will view religious exercise claims broadly.

Employers may find employees invoking religious protections and objections for a wider range of conduct beyond worship attendance or Sabbath observance, to potentially include daily behavioral choices, dress, speech, interactions with coworkers, and exemptions from certain job duties.

Religious Speech and Expression in the Workplace

The guidance states that “[w]here speech or expression is part of a person’s religious observance and practice, it falls within the scope of Title VII,” and that “[s]peech or expression outside of the scope of an individual’s employment can almost always be accommodated without undue hardship to a business.” It further notes that speech “within the scope of an individual’s employment, during work hours, or in the workplace may, depending upon the facts and circumstances, be reasonably accommodated.”

The guidance specifically references prior guidelines issued by the Clinton administration as providing “useful examples for private employers,” such as the following: “employees may keep religious materials on their private desks and read them during breaks”; they may “discuss their religious views with other employees, subject to the same limitations as other forms of employee expression,” they may “display religious messages on clothing or wear religious medallions,” and they may “invite others to attend worship services … except to the extent that such speech becomes excessive or harassing.”

For employers, this posture may create significant tensions with traditional antiharassment policies. Employers that discipline employees for proselytizing, displaying religious messages, or expressing religiously motivated views on controversial topics (e.g., views on sexual orientation, gender identity, preferred pronouns, or other protected characteristics) may face objections that such discipline constitutes religious discrimination. Employers may wish to carefully calibrate their harassment and workplace conduct policies to ensure they do not categorically prohibit religious expression without an individualized assessment of whether accommodation would cause undue hardship.

Religious Accommodations

Under Title VII, employers must reasonably accommodate an employee’s religious needs, absent undue hardship. The new guidance incorporates executive orders and Supreme Court of the United States decisions in recent years, including in Groff v. DeJoy, which held that an accommodation poses an “undue hardship” only if it imposes a burden that is “substantial in the overall context of an employer’s business.” Groff emphasizes that “no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs.” It further asserts that coworker animosity to a particular religion, religion in general, or the notion of religious accommodation does not support an undue hardship defense.

The guidance reiterates that a reasonable accommodation should eliminate the conflict between a job requirement and an employee’s religious belief or practice. Thus, “Title VII requires an employer to consider what adjustment or modification to its policies would effectively address the employee’s concern; an ineffective accommodation is insufficient.” Furthermore, employers are required to engage in an interactive process with an employee to identify an accommodation that is reasonable and effective. What should not be part of that process is questioning whether the employee’s religious belief is sincere.

For employers, this means that undue hardship arguments must be supported by specific, demonstrable evidence of substantial cost or disruption to the workplace. Employers may wish to focus on concrete and significant operational burdens, and not assumptions or coworker complaints. Additionally, the reasonable accommodations process must seek an accommodation that works in practice, not just on paper. While an employer is not required to provide the employee’s preferred accommodation, any offered alternative must effectively eliminate the conflict.

Discrimination Based on Disparate Treatment

The guidance reiterates that Title VII’s prohibition on disparate treatment “is implicated any time religious observance or practice is a motivating factor in an employer’s covered decision.” This includes making assumptions about an individual based on the individual’s perceived or suspected religion. The guidance emphasizes that denying accommodations for religious reasons that are provided for secular ones will constitute a legal violation. But even beyond that, the guidance asserts that “the fact that an accommodation may grant the religious employee a preference is not evidence of undue hardship because Title VII ‘gives [religious practices] favored treatment.’”

Employers may wish to train hiring managers that adverse decisions should not be based on assumptions about an applicant’s or employee’s religious practices (e.g., declining to hire someone perceived to wear religious garb because of anticipated scheduling conflicts). In addition, employers may wish to ensure that accommodations, such as scheduling flexibility, that are granted for secular reasons are equally available for religious reasons. But the converse is not necessarily true. It would appear that traditional employer concerns about “special treatment” for religious employees has been effectively neutralized.

Religious Organizations

Section 702 of Title VII provides protections to religious organizations, allowing them to employ only individuals of a particular religion or those “whose beliefs and conduct are consistent with the employer’s religious precepts.” The guidance notes that this protection may extend to for-profit companies that operate with consistent religious mission statements.

Title IX of the Education Amendments of 1972 bars sex discrimination in educational institutions that receive federal funding. However, the guidance explains, educational institutions controlled by religious organizations are “exempt from Title IX’s prohibition on sex discrimination where that prohibition ‘would not be consistent with the religious tenets of such organization[s].’”

Next Steps

Employers may wish to review their dress codes, codes of conduct, attendance policies, antiharassment policies, and protocols for handling religious accommodation requests to determine if any adjustments may be advisable. Employers also may wish to train managers on compliance with federal and state religious discrimination and accommodations laws.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Employment Law, Higher Education, and Leaves of Absence blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

Fiona W. Ong is a shareholder in Ogletree Deakins’ Baltimore office.

James M. Paul is a shareholder in Ogletree Deakins’ Tampa and St. Louis offices.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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