EEOC’s Proposed Revision Of Its Guidance Manual On Religious Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public input on its updated Compliance Manual on Religious Discrimination.

The compliance manual has not been revised since July 2008. Since then, the U.S. Supreme Court has issued opinions such as 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), and the EEOC believes that these and several others cases have altered protections for employees against religious discrimination in the workplace and enhanced protections for religious employers under Title VII of the Civil Rights Act. The proposed EEOC Compliance Manual on Religious Discrimination (Guidance), available for public input until December 17, 2020, reflects these changes.

The EEOC Guidance does not have the force of law nor does it rise to the level of EEOC regulations. However, the Guidance provides insight on the EEOC’s enforcement priorities. The Guidance also serves as a summary of existing law as interpreted by the courts and the EEOC. It is a valuable resource for companies or attorneys facing a religious accommodation issue.

Title VII prohibits employers from discriminating against employees or applicants because of their religion. The Guidance reiterates that religion is broadly defined under Title VII. An individual is protected under Title VII if their religious beliefs, practices, or observances are “sincerely held.”

The Guidance states, “It is irrelevant that the employer does not view the work requirement as implicating a religious belief or that most people of the applicant/employee’s faith would not; it is the applicant’s or employee’s own religious beliefs that are relevant.” Social, political, or economic philosophies, as well as mere personal preferences, however, are not religious beliefs for purposes of Title VII. Overlap between a religious and political view does not place the belief or practice outside the ambit of Title VII, as long as the view is part of a comprehensive belief system and not simply an isolated teaching. For example, a belief that one should not harm their own body and that the flu vaccine may do more harm than good, without more, was not found to be protected under Title VII.

An employer can reasonably accommodate an employee by flexible scheduling (such as permitting prayer breaks), voluntary swaps of shifts, or lateral transfers to enable religious observance. In addition, an employer can modify workplace practices, policies, or procedures. For example, if a pharmacist has a religious objection to dispensing contraceptives, the pharmacist could be allowed to signal a coworker to assist customers who seek to make those purchases. However, the pharmacist should not be transferred as it is generally recommended that employees be accommodated in their current position. In addition, employers cannot rely on a “broad rubric of image” to deny a requested religious accommodation involving workplace grooming or dress code policies as this could lead to a disparate treatment claim. The Guidance states that doing so would be “tantamount to reliance on a customer religious bias (so-called ‘customer preference’) in violation of Title VII.”

Under Title VII, employers must make reasonable accommodations...