In many situations, the question of whether an employee’s request for a religious accommodation is tied to sincere religious beliefs is not at issue. Instead, employers simply need to assess whether they can provide the accommodation without causing an undue hardship. Where an employer does question whether the employee sincerely holds those beliefs—an issue that might arise if an employee asserts a dubious religious objection to the COVID vaccine—it should look to the EEOC’s long-standing guidance on the level of inquiry it can make.
What are “religious” beliefs and practices?
According to the EEOC, religious practices include the “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religion typically concerns “ultimate ideas” about “life, purpose, and death.” The EEOC does not protect beliefs merely because they are strongly held. Whether a practice is religious depends on the employee’s motivation. Social, political, or economic philosophies, as well as personal preferences, are not protected as religious beliefs under Title VII.
The EEOC does grant employees the benefit of the doubt. Employers should not dismiss the beliefs simply because the employee’s practices deviate from the exact tenants of a religion, or because few or no people adhere to those religious beliefs. The EEOC cautions employers that the definition of religion is broad, and an employer is likely unfamiliar with each of the tenets of a religion. Because of this, an employer should assume that the request of a religious accommodation is based on a sincerely held religious belief.
Does it appear the employee “sincerely” holds those beliefs?
If the employer has a bona fide, objective basis to question the employee’s sincerity, it is justified in seeking additional information. An employer should first consider the following factors in deciding whether an employee’s religious beliefs are sincerely held, none of which are automatically dispositive of the issue:
- whether the employee has behaved in a manner markedly inconsistent with the professed belief;
- whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
- whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
- whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
What kind of inquiry can an employer make into the employee’s sincerity?
If an employer questions the beliefs based on the answer to the above questions, EEOC guidance allows it to request additional information as a part of the interactive process for analyzing religious accommodations. Employers should engage in the process in a manner that is free from discrimination, intimidation, retaliation, or overly intrusive inquiries.
The EEOC provides examples of the nature of information an employer should consider:
- The employee’s own statements and firsthand explanations.
- Follow-up questions about the nature and tenets of the asserted religious beliefs, any associated practices, rituals, clergy, observances.
- Information about when, where, and how the employee has adhered to the religious belief or practice and when the employee embraced the religious practice or belief.
- Written religious materials describing the religious belief or practice.
- Oral statements, affidavits, or other documents from third parties, including:
- Religious leaders, if applicable;
- Others whom the employee identifies as knowledgeable about the religious belief or practices;
- Others who may have observed the employee’s past adherence or would have discussed it with the employee; or
- Fellow adherents.
- Oral statements, affidavits, or other documents from managers or co-workers who may have observed the employee’s lack of past adherence.
Employers faced with a dubious religious accommodation request may want to seek assistance from their lawyer in formulating the right questions to ask, obtaining statement or affidavits, and assessing whether the employee’s belief is likely to satisfy the sincerity standard.
But how much can I pry?
The EEOC cautions against requesting unnecessary or excessive evidence of the employee’s religious beliefs. Doing so risks the appearance of harassment or intimidation. But employees who fail to cooperate with reasonable requests to verify the sincerity or religious nature of their beliefs risk losing a claim for failure to accommodate.
The question of whether religious beliefs are sincerely held is only relevant to providing a religious accommodation, not to claims of harassment or disparate treatment because of religion. It is important for employers to first presume a religious belief is sincerely held. Then proceed with caution, only requesting verification where necessary based on bona fide and objective doubts.
After the employer determines the beliefs are sincerely held, the employer next moves onto the analysis of whether the accommodation request is reasonable and does not impose an undue hardship.
