On November 17, 2020, the Equal Opportunity Commission (EEOC) proposed an update to its Compliance Manual’s section on Religious Discrimination. The proposed Manual is open for public comment until December 17, 2020, after which the EEOC will take those comments into consideration before publishing the finalized updated Compliance Manual. The EEOC Compliance Manual is not binding and has no force of law. Nonetheless, employers should take note of the Manual as it provides insight on how the EEOC may consider charges alleging religious discrimination claims in the future, as well as the EEOC’s best practices for employers.
The proposed changes do not change any existing obligations under Title VII. However, the proposed update reflects the EEOC Chair’s emphasis on religious discrimination and accommodation and a more expansive view of exemptions for religious employers under Title VII based upon a number of cases, including U.S. Supreme Court cases, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.Ct. 1719 (2018), and Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S.Ct. 679 (2019). The new proposed guidance focuses on four areas:
- Definitions and Coverage – what constitutes a religion, the religious organization exemption, and the ministerial exception;
- Employment decisions based on religion, including recruiting, hiring, promotion, discipline, compensation, religious expression within the workplace, customer preference, security requirements, and bona fide occupational qualifications;
- Religious Discrimination, Harassment, and hostile work environment issues; and
- Religious reasonable accommodation issues.
While it’s impossible to condense the 114 page proposed EEOC Guidance down to a short blog, here are a few points for employers to take note:
Coverage – Religious Beliefs – The EEOC defines “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” The Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs. An employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.
The EEOC notes that...
