By Rachel See, Dawn Solowey and Adrienne Lee

Seyfarth Synopsis: In a written opinion issued on March 7, 2024, the EEOC confirmed that an employee must not only show a sincerely held religious belief, but that the employee’s religious belief is actually in conflict with the workplace training or program. The EEOC’s opinion also confirmed that an undue hardship analysis is not limited to considerations of an employer’s financial cost, and that an employer’s undue hardship could include impacts on rights and interests that are protected by Title VII itself. In its written decision, the EEOC emphasized that the training it was evaluating did not require employees to change their personal beliefs, and that the training was respectful of diverse viewpoints including religious beliefs. While the EEOC’s opinion does not constitute binding judicial precedent for federal judges ruling on private-sector claims, it contributes to the ongoing dialogue as employers and policymakers wrestle with assertions that Diversity, Equity, Inclusion, and Belonging (“DEIB”) initiatives discriminate against a protected class, and how employers should navigate employees’ assertions that an employer’s DEIB training might conflict with an employee’s sincerely held religious beliefs.

On March 7, 2024, the EEOC, acting in a quasi-judicial capacity, issued a written appellate opinion in Barrett v. Vilsack, EEOC Decision No. 2019005478, 2024 EEOPUB LEXIS 515 (Mar. 7, 2024). The EEOC affirmed[1] a federal agency’s dismissal of an employee’s EEO claim that asserted a conflict between the agency’s mandatory civil-rights training and the complaining employee’s alleged sincerely held religious beliefs. The agency’s training emphasized the importance of treating all customers and employees, including LGBTQI+ individuals, with courtesy and respect, and the employee asserted that this requirement conflicted with his sincerely held religious beliefs as a Roman Catholic. On appeal, the EEOC upheld the agency’s decision to dismiss the employee’s claim.

Why This Decision Matters

The EEOC’s recent decision is an important one for private-sector employers to digest and apply, given the increase in employees requesting religious exemptions from discrimination training and employers’ DEIB programs.  Here are a few key points:

  1. The EEOC noted that an employee must not only state a sincere religious belief, but must also assert that that belief is actually in conflict with the employer’s workplace training or program. The EEOC’s opinion makes clear that a bare assertion of a conflict —without more—is not sufficient. Thus, when conducting an interactive process, employers can consider whether the employee has identified an actual conflict with their sincerely held religious beliefs.  A well-crafted written religious accommodation request form can help employers better-understand the employee’s basis for the accommodation request. 
  2. The EEOC confirmed that an “undue hardship” analysis “is not limited to considerations of financial cost” even after Groff.  In holding that granting the religious accommodation would have imposed an undue hardship on the Department of Agriculture, the EEOC recognized that the undue hardship included “impacts on rights and interests that are protected by Title VII itself.” The EEOC further recognized, as part of the “undue hardship” analysis, the fact that the employer had legal obligations to comply with Title VII and other EEO laws.  This is an important principle that employers can reference in considering whether a particular requested accommodation creates an undue hardship.
  3. The content of the workplace training or program matters. The EEOC relied on the fact that the training was designed to promote compliance with EEO laws and the employer’s standards of conduct for interacting with customer and coworkers, as well as the fact that it did not require the employee to affirmatively profess support for any values contrary to his religious beliefs.  The EEOC’s opinion on appeal referenced the slide deck used at the employer’s training, which was placed into evidence. Employers should keep these principles in mind when crafting or approving their training programs, and should compose and maintain their written materials with these considerations in mind.

The EEOC’s Role in Federal Sector EEO Appeals

EEOC’s role in federal-sector cases is often not well understood by private-sector employers. For charges of discrimination involving private-sector employers, the EEOC investigates the charges, and the EEOC can choose to initiate litigation in the federal courts, or allow private litigants to pursue those claims. In contrast, the EEOC exercises supervisory authority over the federal government’s own EEO programs, and the EEOC’s Office of Federal Operations handles appeals from final federal agency EEO determinations and dismissals. In limited circumstances, sitting in a quasi-judicial capacity, the full EEOC votes to affirm or deny the appeal.

While the EEOC’s federal sector decisions do not constitute binding precedent, they can serve as oft-cited persuasive authority in private-sector litigation, including at the appellate level. The EEOC’s use of its federal-sector opinions to drive policy discussions gained wider attention over a decade ago, when the EEOC issued federal-sector opinions involving LGBTQI+ federal employees.[2] Before the Supreme Court weighed in on the intersection of Title VII and sexual orientation and gender identity in Bostock v. Clayton County,[3] the EEOC’s federal-sector opinions were cited often by courts and private-sector litigants, and helped shape the ongoing dialogue.

Underlying Facts and  Procedural Posture

In Barrett V. v. Vilsack, EEOC Decision No. 2019005478 (Mar. 7, 2024), the complainant, a Design Engineer at the Department of Agriculture’s Natural Resources Conservation Service in Temple, Texas, was scheduled to attend a mandatory civil rights training which would cover the need to treat all customers and employees with courtesy and respect, including members of the LGBTQI+ community. Barrett requested to be excused from attending the portion of the training that would provide information on how the topic of professionalism applies when interacting with members of the LGBTQI+ community, reasoning that this topic contradicted his sincerely held religious beliefs as a Roman Catholic.

The Agency denied Barrett’s religious accommodation request, and Barrett attended the training. (He conceded in a subsequent affidavit that the training was respectful of his religious beliefs.) Barrett then filed an EEO complaint alleging that the Agency discriminated against him based on his religion when it (1) denied him an exemption from attending the training, and (2) warned him that failure to participate in any portion of the training could lead to discipline.

The Department of Agriculture dismissed Barrett’s claim. Among other things, it found that Barrett failed to establish a prima facie case for failure to accommodate based on religion because Barrett agreed to attend the training, was not penalized, and excusing him from the training would have imposed an undue hardship on the Agency. Barrett then appealed the Agency’s decision to the EEOC.

EEOC Decision

On appeal, in analyzing the Agency’s dismissal, the EEOC applied the standard for analyzing Title VII claims of religious discrimination via failure to accommodate as recently clarified by a unanimous Supreme Court in Groff v. DeJoy, 600 U.S. 447 (2023). When an employee informs an employer of a sincere religious belief that conflicts with a workplace rule, the employer must engage in an interactive process to determine if it can provide a reasonable accommodation without incurring undue hardship. Groff held that “undue hardship” means substantial additional costs in light of the employer’s business.

Applying these standards, the EEOC affirmed the Agency’s decision, finding that the Agency did not discriminate against Barrett when it declined to exempt him from the mandatory civil rights training and warned him that failure to participate could lead to disciplinary action.[4]

The EEOC emphasized that Barrett had failed to identify even generally, a religious belief, observance, or practice that conflicted with the Department of Agriculture’s mandatory civil-rights training. The EEOC noted that the training “simply discussed and reinforced laws and conduct rules requiring employees not to discriminate against or harass others on numerous protected bases, including sexual orientation, and to treat customers and coworkers professionally.”

Although Barrett had alleged on appeal that the Agency “substantially” pressured him to “modify his religious observance or practice,” the EEOC found that the evidence did not support this allegation. The EEOC stated, “But Complainant does not explain how the training worked, or even attempted, to modify, criticize, or pressure him to change his religious observance or practice–whether before, during, or after the training.  In the entire deck of training slides, LGBTQI+ issues were referenced only in the context of explaining bases for prohibited discrimination under equal employment opportunity laws. . . . Moreover, Complainant’s own statements after the training belie his arguments. He acknowledged that the portion of the training covering LGBTQI+ issues was ‘professional, proportionate, and produced in a manner which was respectable to those with sincerely held religious beliefs like mine.’”  Thus, the Commission held that Barrett had failed to show that the training conflicted with his sincerely held religious beliefs, observances, or practices.

The EEOC also found that even if he had identified a conflict between his religious practice and the training, excusing Barrett from attending the civil rights training would impose an “undue hardship” on the Agency’s business under Groff.  The EEOC reasoned that an exemption would have interfered with the Agency’s efforts to meet its legal obligations under equal employment opportunity laws such as Title VII, which requires federal agencies to take affirmative steps to prevent discriminatory harassment.

Concluding Thoughts

Religious accommodation requests must be handled carefully by employers, particularly when alleged religious rights are in conflict with other protected classifications.  Each request must be considered on its individual facts. For assistance with religious accommodation requests – including process maps, written religious accommodation request forms, customized talking points for the interactive process, and template approval and denial documents, reach out to the authors.

For other questions about trends in religious accommodation, cultural flashpoints in the workplace, or the EEOC, reach out to the authors or a Seyfarth attorney. 

Rachel See, Senior Counsel in Seyfarth’s Washington, DC office, spent over six years in leadership and policy roles at the EEOC, including a senior role in the EEOC’s Office of Federal Operations and as the EEOC’s Acting Executive Secretary, the EEOC official who signs and issues federal-sector determinations by the Commission. Dawn Solowey is a Labor & Employment Partner in Seyfarth’s Boston office, and an expert in religious discrimination and accommodation.  Dawn and Rachel are both members of the firm’s Cultural Flashpoints Team. Adrienne Lee is a Labor & Employment associate in Seyfarth’s Boston office.

[1] As of the publication of this blog, the Commission has not posted its voting results for the opinion. We expect the opinion was approved in a 3-2 split vote, with the three Democrats on the Commission voting to approve and the two Republicans on the Commission voting to disapprove.

[2] See, e.g., Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 20, 2012) (holding that discrimination against a transgender individual constituted discrimination based on sex and therefore violates Title VII), Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Apr. 1, 2015) (holding that Agency’s restrictions on transgender employee’s restroom usage constituted disparate treatment in violation of Title VII), and Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015) (holding that a claim alleging discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII).

[3] 590 U.S. 644 (2020).

[4] The EEOC disagreed with the Agency’s suggestion that a complainant making a claim for failure to accommodate religion was required to show a separate adverse employment action beyond the denial of a religious accommodation.