What Employers Need to Know About the EEOC’s Revisions to its Compliance Manual on Religious Discrimination

For the first time since 2008, the Equal Employment Opportunity Commission (“EEOC”) revised its Compliance Manual on Religious Discrimination. The revisions were guided by opinions issued by the U.S. Supreme Court 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). The EEOC is of the opinion that these and several other cases have changed 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 manual is open for public comment until December 17, 2020. The revisions to the manual include “important updates to the discussion of protections for employees from religious discrimination in the context of reasonable accommodations and harassment.” The guidance the EEOC provides does not have the force of law, but “is intended to provide clarity to the public on existing requirements under the law and how the Commission will analyze these matters in performing its duties.” Of course, the EEOC investigators will defer to the manual as well in making determinations on whether there is probable cause for discrimination.

Title VII prohibits employers from discriminating against employees or applicants because of their religion. The manual 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.” 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.

Some notable revisions to the manual that employers should take note of include the following:

  • The proposed manual gives examples of when an employee’s religious beliefs on potentially controversial issues like birth control, abortion or LGBTQ rights might conflict with employer requirements. Such an example would be employee uniforms. While an employee would not be expected to wear a work uniform supporting LBGTQ rights if it conflicted with the employee’s religious beliefs, that same employee would be expected to attend mandatory workplace trainings that emphasized respect for others including those who are members of the LGBTQ community.
  • The proposed manual clarifies that an employer may not refuse to hire people because the employer presumes they will request a reasonable accommodation, regardless of whether they tell the employer they need one. For example, an employer cannot refuse to hire someone just because the employer assumes there will be a conflict between an applicant’s headscarf and the company’s “look policy.”
  • The proposed manual clarifies that when an employer claims an employment decision was based on religion, any inquiry into the basis for the decision must be limited to whether the reason for the decision was sincere.
  • The proposed manual expands the definition of a “religious organization” so that it does not rule out for-profit entities or those engaged in secular activities. The updated manual removes the EEOC’s four-factor test to decide if an organization is a religious organization. Instead, it looks to “all the facts.” However, the manual does not answer the question of whether a for-profit corporation can be a religious corporation.
  • The proposed manual expands the ministerial exception in the wake of two Supreme Court decisions. In both cases, the court ruled that this exception is not limited to clergy members or those who “minister.” Under the updated manual and precedent, this exception extends to those the religious organization selects to “personify its beliefs,” “shape its faith and mission,” or “minister to the faithful.” This could include teachers, musicians, kosher food inspectors and other employees.
  • The proposed manual provides examples on how an employer can reasonably accommodate an employee by flexible scheduling, voluntary swaps of shifts, or lateral transfers to enable religious observance. Such an example is a pharmacist with 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.
  • Traditionally, the EEOC guidance manual is intended to be a statement and summary of the current state of the law. However, the proposed manual demonstrates the EEOC is open to the Supreme Court making Title VII’s undue hardship defense more challenging for employers – more akin to that required under the Americans with Disabilities Act. In particular, the proposed manual noted Justice Samuel Alito’s comments that the Supreme Court should reconsider the employer-friendly Title VII undue hardship standard (a de minimis burden).

While these revisions are not final and the manual does not have the force of law, employers should consider maintaining written anti-discrimination and anti-harassment policies that take the EEOC guidance into consideration. This may help to minimize the likelihood of claims of religious discrimination as this area of law develops. Additionally, while most human resources professionals and in-house counsel are familiar with the religious accommodation process, employers should provide training to supervisors on what constitutes a religion, how best to engage in the religious accommodation process, and how to prevent and stop religious discrimination in the workplace.

Of course, this is only a primer on the information contained in the proposed manual and you should consult with an experienced attorney with any questions. We here at FGMC are happy to guide you through the intricacies and help you determine whether you have a religious discrimination issue. Please feel free to contact any one of our knowledgeable employment attorneys for more information.

erin o'neill

Erin O’Neill


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