January 8, 2021
This letter is in response to your inquiry concerning the scope of the legal protections for religious liberty in the workplace. You raise, in particular, your organization’s “strong interest in ensuring that Jewish Americans are free to practice their faith in the workplace.” You also mention that your organization is “concerned that employees in the technology, education, public, and other sectors may face discrimination at work based on faith-related activities and beliefs.”
The Office of Federal Contract Compliance Programs (OFCCP) enforces Executive Order 11246, which applies to federal contractors and subcontractors and explicitly prohibits employment discrimination based on race, color, religion, sex, sexual orientation, gender identity, and national origin. Executive Order 11246 is enforced in part through an equal opportunity clause inserted into covered federal contracts and subcontracts that requires contractors to agree not to discriminate on those protected bases and requires them to take affirmative action to ensure applicants and employees are treated without regard to those protected bases. OFCCP addresses anti-Semitism in employment by federal contractors through Executive Order 11246’s prohibitions on discrimination based on religion and national origin.
GENERAL LEGAL PRINCIPLES
OFCCP enforces protections against employment discrimination based on religion and national origin, and it has clarified those protections with its regulations in part 60-50 of title 41 of the Code of Federal Regulations (C.F.R.), “Guidelines on Discrimination Because of Religion or National Origin.” OFCCP’s regulations explicitly state that equal employment opportunities must be available for all employees and applicants regardless of religion or national origin. 41 C.F.R. § 60-50.1(a). OFCCP’s regulations specifically address discrimination against certain groups:
Members of various religious and ethnic groups, primarily but not exclusively of Eastern, Middle, and Southern European ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic groups, continue to be excluded from executive, middle-management, and other job levels because of discrimination based upon their religion and/or national origin. These guidelines are intended to remedy such unfair treatment.
41 C.F.R. § 60-50.1(b). OFCCP’s regulations direct federal contractors and subcontractors to accommodate applicants’ and employees’ religious observances and practices unless doing so would impose undue hardship on the conduct of their business:
An employer must accommodate to the religious observances and practices of an employee or prospective employee unless the employer demonstrates that it is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. As part of this obligation, an employer must make reasonable accommodations to the religious observances and practices of an employee or prospective employee who regularly observes Friday evening and Saturday, or some other day of the week, as his Sabbath and/or who observes certain religious holidays during the year and who is conscientiously opposed to performing work or engaging in similar activity on such days, when such accommodations can be made without undue hardship on the conduct of the employer’s business. In determining the extent of an employer’s obligations under this section, at least the following factors shall be considered: (a) Business necessity, (b) financial costs and expenses, and (c) resulting personnel problems.
41 C.F.R. § 60-50.3. OFCCP’s regulations thus explicitly prohibit discrimination based on religion and national origin and require that religious accommodations be provided absent undue hardship.
However, Executive Order 11246 exempts any contractor or subcontractor that is a religious corporation, association, educational institution, or society from the equal opportunity clause with respect to the employment of individuals of a particular religion. In addition, the Religious Freedom Restoration Act may require an exemption or accommodation for a contractor under Executive Order 11246. Furthermore, the ministerial exception, a judicially recognized exemption grounded in the First Amendment, bars employment discrimination suits on behalf of employees who work at religious institutions in positions deemed to be “ministerial” based on all relevant circumstances.
Religious discrimination by contractors against applicants and employees, including the failure to provide a reasonable religious accommodation absent a showing of undue hardship, is prohibited and unlawful. Contractors have a duty to provide equal employment opportunities to individuals of different religious faiths or no religious faith, and they should develop reasonable internal procedures to ensure that their obligation is being fully implemented. In the area of religion, a contractor should evaluate its processes to make sure it is not failing to provide religious accommodations when legally required to do so. If a proposed religious accommodation would impose an undue hardship, the contractor should work with the applicant or employee to attempt to identify a reasonable accommodation that would not impose such a hardship. Contractors may also consider voluntarily developing best practices such as implementing a centralized accommodation request system, collaborating with employee resource groups, and providing training for managers and employees.
Federal contractors and subcontractors that deny an employee or prospective employee a reasonable religious accommodation, and cannot establish undue hardship, engage in religious discrimination in violation of OFCCP’s religious accommodation regulations. Any employee or prospective employee of a federal contractor or subcontractor who feels they have been subjected to discrimination based on religion may file a discrimination complaint with OFCCP. 41 C.F.R. §§ 60-1.21, 60-50.4.
Your letter highlighted six possible religious discrimination scenarios. We assume in each that the employer has agreed to Executive Order 11246’s requirements and is not entitled to a religious exemption. Our response to each scenario is provided below:
- An applicant/employee suffers an adverse employment action because an employer assumes the applicant/employee has values that others may find offensive (e.g., because he or she attended a religious private school, attends an Orthodox synagogue with sexsegregated seating, or wears a hijab).
Answer (scenario 1): Based on the examples in this scenario, we assume that by “values” you mean religious values. Under that assumption, the adverse employment action would be a violation of 41 C.F.R. § 60-50.2.
- An applicant/employee suffers an adverse employment action because he or she is a member of a religion that has taken public policy positions that others may find offensive (e.g., supporting or opposing the State of Israel or opposing late-term abortions).
Answer (scenario 2): The adverse employment action would be a violation of 41 C.F.R. § 60-50.2.
- An applicant/employee suffers an adverse employment action because, during non-work hours, he or she attended or otherwise supported a synagogue/church-sponsored cause or event that others may find offensive (e.g., an anti-war rally, the March for Life, or a rally opposing anti-Semitism).
Answer (scenario 3): We assume that the applicant/employee’s support of the synagogue/church-sponsored cause or event was part of the applicant/employee’s religion. Under that assumption, the adverse employment action would be a violation of 41 C.F.R. § 60-50.2.
- An employee suffers an adverse employment action because, during a company-provided rest break in which coworkers were discussing current events or social issues, the employee stated that he or she has religious views that others may find offensive (e.g., he or she believes in traditional marriage or, conversely, supports an expanded definition of the family).
Answer (scenario 4): Generally speaking, unless the employee has been told such comments are unwelcome, an employee’s respectful expression of religious views in off-duty conversation are not objectively hostile, nor do they constitute harassment. We assume that this is the case in this scenario, as it appears to be. If so, then the adverse employment action here, based as it is on the employee’s religious belief, would be a violation of 41 C.F.R. § 60-50.2.
- An applicant/employee suffers an adverse employment action because, either during an interview or before first reporting for work, the employee informs the employer about a religious requirement that necessitates an accommodation (e.g., the inability to work on the Sabbath or other religious holy days, the need to have a personal microwave for kosher food).
- An applicant/recently hired employee is let go because he or she requested an accommodation for religious observance, with no opportunity to discuss with the employer the reasons for the needed accommodation or possible solutions (e.g., needing to leave work early on Friday afternoons in the winter to be home before the Sabbath begins at sundown).
Answer (scenarios 5 and 6): In each of these scenarios, the adverse employment action would be a violation of 41 C.F.R. § 60-50.2. In addition, if the employer made no effort to act on the new employee’s accommodation request, it will likely be unable to demonstrate that the proposed accommodation would actually have posed an undue hardship. Therefore, by denying the religious accommodation, the employer is likely in violation of 41 C.F.R. § 60-50.3.
We trust that this letter is responsive and affords clarification to your inquiry. You may also find useful the Religious Accommodation section (§ 2J01) in OFCCP’s Federal Contract Compliance Manual1, as well as OFCCP’s recent guidance on accommodations focused reviews: “Accommodations Focused Reviews Frequently Asked Questions”2 and “Religious Accommodations Best Practices for Federal Contractors.”3
Craig E. Leen
Director, Office of Federal Contract Compliance Programs
U.S. Department of Labor
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C. § 552(b)(7).
2 See https://www.dol.gov/agencies/ofccp/faqs/AccommodationsFAQs.