Employer Skepticism Mounts as Line Blurs Between Faith, Politics

Religious objections to corporate diversity, vaccine, and pronoun policies are prompting employers to question whether workers’ faith-based claims stem from sincerely held beliefs protected by federal law or political ideologies that aren’t.

Previously, religious discrimination cases rarely delved into an examination of an employee’s beliefs, attorneys said. That could change as the nation becomes more polarized over social, cultural, and political issues that can bleed into workplaces.

Already, workers have mounted legal challenges to a wide swath of company measures on religious grounds, from diversity, equity, and inclusion programs and anti-bias training to pronoun policies and Covid-19 vaccine rules. Some are seeking exemptions to those policies as a form of religious accommodation under Title VII of the 1964 Civil Rights Act.

“This puts the whole question of sincerity into a different light,” said Seyfarth Shaw LLP partner Dawn Reddy Solowey, who represents employers. “I think the courts will be wading into the question more than they had historically.”

The US Supreme Court in June made it harder for employers to reject a worker’s religious accommodation requests. In their unanimous Groff v. DeJoy ruling, the justices overturned decades-old precedent and held that businesses can deny an accommodation only if they show it would substantially increase costs.

Under the high court’s prior test, employers considering an accommodation generally assumed the worker’s religious objection was sincerely held, and instead focused more on whether the request would be burdensome, attorneys said.

“We were able to dodge the sincerity question a lot,” Andrew Schpak, co-managing partner at Barran Liebman LLP, said at an employment law conference hosted earlier this month by the American Bar Association in Seattle. “I think there’s going to be a higher expectation to get into the weeds.”

Sincere Beliefs

In an ongoing case in Illinois federal court, a Christian teacher alleged that complying with a policy to use the preferred names and pronouns of trangender students would be “sinful.”

Separate litigation against Compass Group USA, pending in California federal court, challenged the company’s diversity program on religious grounds. It’s one of several lawsuits attacking corporate DEI policies in the wake of a Supreme Court decision banning the use of race in university admissions.

The human resources employee who filed the suit didn’t identify a particular religion in her complaint, but said her beliefs are based on “deeply and sincerely held religious, moral, and ethical convictions, that people should not be discriminated against because of their race.”

Religious beliefs can be nontheistic, but ideological and political views aren’t protected by Title VII.

Employers are still wary of wading too much into whether a worker’s belief, observance, or practice is insincere, or not religious in nature, lawyers said.

“Religious beliefs are very personal and individualized in character,” said Tom H. Luetkemeyer, a management-side partner at Hinshaw & Culbertson LLP. “Employers must establish an objective fact that it’s not a sincerely held belief.”

“Frankly, it’s a very difficult thing for an employer to accomplish,” he added.

There’s little to no court guidance on what each side must show when the sincerity of a worker’s belief comes under the microscope, said Alex Luchenitser, associate vice president and interim legal director at the Americans United for Separation of Church and State.

Pending accommodation cases might likely “trigger the development of more detailed case law on how you determine that,” he said.

EEOC Guidance

The US Equal Employment Opportunity Commission, which enforces Title VII, has issued guidance that encourages employers to give employees the benefit of the doubt regarding the sincerity of their beliefs.

But an exception exists. During the interactive process for determining if an accommodation is reasonable, an employer may request additional information if it’s aware of objective facts that call into question the sincerity of an employee’s claimed belief.

The EEOC instructs companies to proceed down that path with caution.

A worker’s belief cannot be challenged simply because they’ve deviated from some commonly held tenets of a religion or belief, it said.

The agency provides “really salient advice” about the standard they need to meet,” said EEOC Commissioner Jocelyn Samuels at the Seattle ABA conference. “This will likely be a topic that will get further explored in the courts because employers are going to look more extensively at it.”

Since Groff, the EEOC lodged at least five lawsuits against companies over claims that they didn’t accommodate their workers’ sincerely held beliefs, Samuels said. The cases include objections to dress and grooming practices and vaccine requirements.

“These cases and the ones we’re not involved in continue to elucidate the standard” for assessing religious accommodations, said Samuels, who noted she wasn’t speaking on behalf of the agency.

An EEOC spokesperson said in a statement to Bloomberg Law that Title VII has a broad definition of “religion,” but doesn’t cover employee policy objections “purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns.”

“However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching,” the statement added.

Careful Balance

The uptick in discrimination lawsuits based on religion place employers in a precarious position of balancing religious rights with Title VII’s protections for racial minorities, women, and members of the LGBTQ+ community, attorneys said.

Until the law further develops, they advised employers to tread very carefully and approach requests for religious exemptions with respect and sensitivity.

“The interactive process is going to become more important both legally and practically” because talking to employees “gives them the opportunity to be heard, and understand the business reasons behind certain policies,” Caryl Flannery, an employment law attorney based in St. Louis, Mo., said at the ABA conference.

“As employees do that, they will become adept at dealing with the issues and helping the company navigate its ways through different beliefs and clashing beliefs,” Flannery said.