Under Title VII it is best practice for, "an employer should proceed on the assumption that a request for religious accommodation is based on sincerely held religious beliefs, practices or observances," the EEOC said in its updated guidance. "However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information."
The EEOC added, "An employee who fails to cooperate with an employer's reasonable requests for verification of the sincerity or religious nature of a professed belief, practice or observance risks losing any subsequent claim that the employer improperly denied an accommodation."
The EEOC has identified the following factors that might undermine the credibility of an employee's claim:
- The employee has acted inconsistently with the professed belief. However, the EEOC said, "employees need not be scrupulous in their observance."
- The employee is seeking a "particularly desirable" accommodation that is likely to be sought for nonreligious reasons.
- The timing of the request is suspicious. For example, the employee may have recently requested the same benefit for secular reasons and been denied.
- The employer otherwise has reason to believe the accommodation is not sought for religious reasons.
While prior inconsistent conduct is relevant to determining the sincerity of an employee's beliefs, the EEOC cautioned that an employee's beliefs (and degree of adherence to such beliefs) may change over time.
"An employer should not assume that an employee is insincere simply because some of the employee's practices deviate from the commonly followed tenets of the employee's religion, or because the employee adheres to some common practices but not others," the agency said. Employers can get the EEOC accommodation request form from the EEOC here.
Employees should be reasonable and cooperative in seeking accommodation. If the requested accommodation would cost your employer more than a trivial amount of money the law could consider the accommodation unreasonable that is - even a small cost can cause the employer "undue hardship" in religious accommodation cases. Notably be aware that costs include the risk of spreading the coronavirus and other safety hazards.
But a blanket statement about the risk of spreading the virus is not enough. When assessing risk employers should consider objective information, such as whether the employee works outdoors or indoors; works alone or in a group; or has close contact with co-workers, customers or other business partners. If they don't employees may have a valid claim for any adverse action or failure to accommodate their exemption.
