Contributor, The Volokh Conspiracy

Federal law requires employers to exempt religious employees from various kinds of generally applicable rules, so long as those exemptions are relatively easy and cheap for the employer. A classic example is an employer no-headgear rule: If an Orthodox Jew, a Sikh, a Muslim or anyone else who belongs to a religion that bars its adherents from going bareheaded asks the employer for an exemption from the rule, the employer must give it, unless there are substantial reasons to insist on the rule (e.g., in the rare cases in which the headgear would interfere with safety). Likewise, if an employer requires employees to work Saturdays, it must exempt Sabbath-observant Jews and Seventh-day Adventists, if such an exemption is relatively cheap (e.g., it can be accommodated through shift swaps that other employees would willingly accept).

You can like this duty of religious accommodation or dislike it, but Congress concluded in 1972 that it should be required; for more on the law related to such “reasonable accommodation” claims, see this post. If the employer refuses to accommodate an employee, the employee can then complain to the federal Equal Employment Opportunity Commission. The EEOC can then either sue on behalf of the employee, or decline to do so, in which case the employee can sue directly.

Many of the EEOC’s religious accommodation lawsuits don’t make the news, but some do, and some of those involve Muslim employees (e.g., the $240,000 jury award to Muslim truck drivers who were fired for refusing to transport alcohol). When I’ve blogged about some such cases, some readers suggested that the EEOC was mostly backing Muslim employees and rarely backed others.

I therefore decided to figure out: What fraction of EEOC religious accommodation lawsuits over the past several years were brought on behalf of Muslims? I got EEOC data on all such lawsuits from the start of 2009 until late October 2015 (when I submitted the first of my requests), and here’s what I found:

  1. There were 54 cases in which the EEOC brought religious accommodation lawsuits on behalf of employees.
  2. Fourteen, or basically one-quarter, were brought on behalf of Muslim employees; one more was brought on behalf of a class of employees including both Muslims and non-Muslims.
  3. Six were brought on behalf of Seventh-day Adventists, six on behalf of Jehovah’s Witnesses and the others on behalf of members of various other religious groups.
  4. Of the 14 claims brought on behalf of Muslims, 11 were claims that employers should have given religious exemptions from generally applicable appearance rules — restrictions on head coverings (eight cases), a general uniform policy (one case), and no-beard rules (two cases); the mixed-Muslim-and-non-Muslim claim also involved such appearance rules. Such religious appearance claims are commonly brought by members of other religious groups: For instance, a couple of the EEOC claims during that period were on behalf of Pentecostal women who wanted an exemption from a uniform policy that required all employees to wear pants, and several others involved people who felt religious obligations to wear long hair or beards.
  5. Of the 14 claims, two others were claims about employees not getting prayer breaks, and not having their “evening break[s] … moved so that they could break their fast and pray closer to sundown during Ramadan …, an Islamic holy month requiring daytime fasting.” Similar claims about time off from work are also commonly brought by members of other religious groups — indeed, more than 20 of the non-Muslim EEOC claims during that period involved requests not to work on the claimant’s Sabbath.
  6. The remaining one of the 14 claims involved the truck drivers’ request to be exempted from delivering alcohol; such claims are rarer, but those too sometimes prevail. The closest analogies from the 2009-2015 cases were two cases brought on behalf of Jehovah’s Witnesses: In the first, a Jehovah’s Witness had been fired for refusing to participate in a company event in which employees had to wear a red shirt as a sign of support for the military; in the second, a Jehovah’s Witness had been fired for refusing to wear a Santa hat and apron during the Christmas season, as the company required.

So cases involving Muslims represented a minority of all cases brought by the EEOC and generally involved the sorts of claims that are routinely brought by non-Muslims (with the truck drivers’ case being the one possible exception).

Now the Muslim employee cases definitely were a much higher percentage of total EEOC cases than the Muslim share of the U.S. population (which appears to be about 1 percent). But that makes sense: Different groups have different levels of need for religious accommodations, whether because their religious practices violate many employers’ work rules or because the employers are less likely to informally accommodate some groups than others.

For instance, there are apparently about half as many Seventh-day Adventists as Muslims in the United States, and yet Seventh-day Adventists account for six of the 54 cases, which is to say about half as many as Muslims. The reason isn’t, I think, EEOC discrimination in favor of Seventh-day Adventists — rather, it’s that the Seventh-day Adventists’ insistence on not working Friday sundown to Saturday sundown conflicts with many employers’ work rules.

Indeed, about 19.6 percent of all complaints submitted to the EEOC from 2009 to 2015 came from Muslims (787 of 4,012). That’s not far off from the 26 percent of all lawsuits filed by the EEOC during those years being on behalf of Muslims (or 28 percent, if you count the lawsuit brought on behalf of Muslims and others). Nor would one expect perfect parity between complaint percentages and lawsuit percentages, because different religious groups tend to bring different kinds of complaints, and different kinds of complaints may have different levels of legal and factual plausibility.

So it generally looks to me like the EEOC is generally protecting a broad range of religious groups and enforcing the same religious accommodations for Muslims as it does for other religions. If there is any discrimination by the EEOC in favor of Muslims, I see no evidence of it in the data.