July 01, 2025
Equal Opportunity Religious Discrimination? A Defense of Last Resort
There is a line of case law referred to as equal opportunity harassment cases. The defense is that no unlawful harassment occurred because the offensive conduct was not based on any individual’s protected status like race, sex, color, national origin, or religion. The equal opportunity harasser is mean, rude, and derogatory to everyone, regardless of protected status. They are “just” a bully.
This recent settlement made me think of this same pattern. The complaint reportedly alleged the employer denied requests for religious accommodation for Sabbatarians, Buddhists and Orthodox Christians. Since the case settled, we cannot say if equal opportunity discrimination would have been a defense used by the employer. What we do know is the employer must have considered the potential risk and/or cost of litigation higher than $850,000, since that is what they agreed to pay. What I find even more interesting is in the 30-page consent decree, 17 pages cover the employer’s additional obligations including to:
Remove any reference to the litigation from each complainant’s HR record; refrain from providing negative references; and ensure no claimant is prohibited from re-employment;
Engage a 3rd party “monitor” to: (1) conduct audits; (2) help maintain and review the employer’s required and detailed accommodation and complaint logs – including a 24-hour complaint response system; (3) develop and implement a training program of one hour for staff and two hours for managers and HR personnel; (4) review and revise related policies and procedures; (5) provide the EEOC with 30, 45, 60-day and annual reports; (7) and more.
Practical Application: Consider whether your EEO/Harassment Prevention training covers all legally protected classes, including religion and faith. Does it cover additional protected classes that are applicant under the state and local laws where you employ employees? Do you provide managers and supervisors with supplemental information that informs them of their duty and obligation to prevent, report, and correct unlawful harassment and discrimination? Does it include practical guidance for avoiding the appearance of and actual retaliation if an employee does express a concern? If not, talk to your company’s legal counsel about updating your program.
