The U.S. Equal Employment Opportunity Commission (EEOC) has posted an informal discussion letter on its website and gives guidance on a question of religious accommodation when an employee (Muslim) refuses to shake hands with an African-American female employee on religious grounds. Accommodating the Muslim employee's wish not to shake hands with women could violate Title VII's prohibition against sex discrimination.
Title VII: Religious Discrimination – Religious Accommodation – Sex Discrimination
November 20, 2009
This responds to your letter dated August 28, 2009, to the U.S. Equal Employment Opportunity Commission’s (Commission’s or EEOC’s) Greenville Local Office, which was referred to the agency’s Office of Legal Counsel for consideration. I apologize for the delay in answering you.
As set forth in your August 28th letter, you have a client that recently hired a male employee and flew him to the company’s location to meet colleagues and look for a house. When he was visiting the office, an African-American colleague offered her hand to greet him but he refused to shake hands. The new employee explained that he did not touch women because of his Muslim religion. When a human resources manager spoke with him about the incident, the new employee said that it was the co-worker’s female gender, not her race, which prompted his response.
In light of this incident, your client expressed concern that accommodating the new employee’s religious beliefs may conflict with its policy prohibiting sex discrimination in the workplace. Your client also anticipated that if the new employee refuses “to shake [female clients’] hands, [there would be] a negative impact on the employees’ [sic] ability to get their business and . . . be successful on his own behalf as well as on the employer’s behalf.”1
I. Religious Accommodation
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. Title VII provides that, once an employer is on notice that an employee’s sincerely-held religious belief, practice, or observance conflicts with a work requirement or policy, it must provide a reasonable accommodation enabling the employee to exercise his beliefs, unless doing so would pose an undue hardship.2 A religious accommodation poses an undue hardship if it involves “more than de minimis cost” to the operation of the employer’s business.3
A. Religious Accommodation that Impacts Co-Workers
The question here is whether it is an undue hardship for your client to accommodate its new employee’s religious practice of not shaking hands with women. We are not aware of any decisions in which federal courts have decided whether such an accommodation poses an undue hardship due to co-workers’ reactions. With respect to accommodating religious expression generally, however, courts have found, and the Commission has stated, that encroaching on co-workers’ ability to perform their duties or subjecting or threatening to subject co-workers to a hostile work environment “will generally constitute undue hardship.”4 For example, in Wilson v. U.S. West Communications,5 the court concluded that an employer was not required to accommodate the plaintiff’s wearing of a graphic anti-abortion button at work where doing so caused serious disruptions among co-workers.6 In Peterson v. Hewlett-Packard Company, where, in response to a diversity program, the plaintiff posted controversial biblical verses that targeted some of his co-workers and were “intended to be hurtful,” the court found that allowing the posters would be an undue hardship for the employer.7 At the same time, a showing of undue hardship requires more than speculation about negative consequences or expressions of discomfort, irritation, or annoyance by co-workers; undue hardship “generally requires evidence that the accommodation would actually infringe on the rights of co-workers or cause disruption of work.”8 Your client should make a fact-specific inquiry into the actual disruptions that have occurred and the level of concern in its workforce about the “no handshake” practice.
B. Religious Accommodation That Impacts Customers
Your client also fears that female customers may take offense regarding the employee’s “no handshake” practice, which in turn “would have a negative impact on the employees’ [sic] ability to get their business and . . . be successful in his own behalf as well as on the employer’s behalf.”9 In assessing whether customers’ objections to an employee's religious practice poses an undue hardship, the question again is the extent to which your client’s concerns are speculative or based on actual events involving more than minimal disruptions to its business.
The courts also are inclined to find undue hardship if the employee’s religious expression can be perceived by customers as the employer’s own message. The Commission has explained:
For example, one court found that it did not impose an undue hardship for a private sector employer to allow a cashier to use the general religious greeting “Have a Blessed Day” in accepting payment where it was said in the context of brief anonymous interactions and had little demonstrable adverse impact on customers or the business. However, other courts have found undue hardship where religiously oriented expression was used in the context of a regular business interaction with a client. Whether or not the client objects, this may be an undue hardship for an employer where the expression could be mistaken as the employer’s message.10
To the extent that your client is concerned that its new employee’s practice will portray it as unfriendly to female customers, your client can focus broadly on the new employee’s overall friendliness and social and sales skills with female customers, above and beyond his “no handshake” practice. It would be relevant if he has good sales with female customers and is generally well-liked; conversely, it also would be relevant if he declines to shake hands with female customers in a manner that conveys negativity about women. These determinations are intensely fact-specific and your client should be careful to avoid speculation.
II. Sex Discrimination
Your client also fears that, by allowing a male employee to refuse to shake hands with female co-workers for religious reasons, it will countenance unlawful sex discrimination in violation of Title VII. Title VII prohibits gender-based employment practices and/or conduct, which involve disadvantageous terms and conditions of employment or severe or pervasive harassment.11
In its Compliance Manual, the Commission explained why a religious accommodation that results in harassment on the basis of religion would pose an undue hardship; the same reasoning would seem applicable to deciding whether a religious accommodation would result in harassment on the basis of sex. The Commission stated:
Since an employer has a duty under Title VII to protect employees from religious harassment, it would be an undue hardship to accommodate such expression. As explained in § III-A-2-b of this document, religious expression directed toward co-workers might constitute harassment in some situations, for example where it is facially abusive (i.e., demeans people of other religions), or where, even if not abusive, it persists even though the co-workers to whom it is directed have made clear that it is unwelcome. It is necessary to make a case-by-case determination regarding whether the effect on co-workers actually is an undue hardship. However, this does not require waiting until the alleged harassment has become severe or pervasive. As with harassment on any basis, it is permitted and advisable for employers to take action to stop alleged harassment before it becomes severe or pervasive, because while isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful.12
In assessing the potential for sex discrimination, an important question for your client to consider is whether the new employee implements his “no handshake” practice in a neutral manner or, by contrast, whether he does so in a manner that is actually hostile or demeaning to women. The extent to which this new employee is developing comfortable working relationships with female co-workers, despite his “no handshake” practice, would seem highly relevant.
While your client and its new employee may find an effective religious accommodation, your client should avoid accommodations that would foster sex discrimination, for example, adopting a male-only client policy for the employee, or restricting his interactions to male co-workers. If, in the future, the employee’s “no handshake” practice conveys an intent to demean based on gender, “it is permitted and advisable for [your client] to take action to stop [the] alleged harassment before it becomes severe or pervasive. . . .”13
III. Potential Follow-up
As noted in your letter, your client itself proposed conducting some form of diversity training for its workforce, which could include providing information about Islamic religious practices. Your client’s proposal may help to alleviate possible tension and/or discomfort surrounding its new employee’s practice of declining to shake hands with women for religious reasons.
We hope this information is helpful. Please note that this letter is an informal discussion of the issues you raised and does not constitute an official opinion of the U.S. Equal Employment Opportunity Commission. If you have further questions, please contact Carol Miaskoff at 202.663.4645 or Tanisha Wilburn at 202.663.4909.
Sincerely, Peggy R. MastroianniAssociate Legal Counsel
1 August 28, 2009 letter at page 2.
2 42 U.S.C. 2000e (j); 29 C.F.R. § 1605.2(b). See also EEOC COMPL. MAN., § 12, “RELIGIOUS DISCRIMINATION,” § 12-IV (July 22, 2008), available at, http://www.eeoc.gov/policy/docs/religion.html#_ftnref116.
3 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV, B.
4 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV, B.4.
5 58 F.3d 1337, 1341-42 (8th Cir. 1995).
6 Id. at 1339-40. The disruptions cited included: a forty percent decline in productivity that resulted from employees gathering to discuss the button; co-worker protests in the form of refusing to attend work meetings with plaintiff present; employees filing grievances against the employer for its perceived failure to resolve the dispute; and employees threatening walkouts.
7 358 F.3d 599, 607-608 (9th Cir. 2004). The court reasoned that accommodating the plaintiff’s religious expression would have created an undue hardship for the employer because “it would have inhibited [the employer’s] efforts to attract and retain a qualified, diverse workforce, which the [employer] reasonably view[ed] as vital to its commercial success.”
8 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV B.6.b.
9 August 28, 2009 letter at page 2.
10 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV, C.6.b.
11 See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998) (indicating that Title VII prohibits harassment where “members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other are not exposed”) (internal quotation marks omitted); Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1522 (M.D. Fl. 1991) (indicating that gender-based harassment can involve “harassing behavior lacking a sexually explicit content but directed at women and motivated by animus against women. . . .”).
12 RELIGIOUS DISCRIMINATION, supra note 2, § 12-IV, C.6.a.