EEOC Finalizes Guidance on Workplace Religious Protections

The Equal Employment Opportunity Commission (EEOC) approved revisions to its guidance on religious-discrimination claims for the first time in 13 years. The updates clarify the legal protections available to employers and employees, according to the agency.

In a 3-2 vote on Nov. 9, the EEOC decided to publish a proposed update to its Compliance Manual Section on Religious Discrimination. The initial proposal was revised after the EEOC received comments from the public, and the majority of the commissioners agreed on Jan. 15 to publish the revised manual. 

The Society for Human Resource Management (SHRM) noted in a comment that "differing legal standards apply to requests for accommodations from various workplace practices, depending on the basis for the particular accommodation request.

"While SHRM recognizes and agrees that the [revised compliance manual] does not have the force and effect of law, and does not bind the public in any way, it is useful to provide needed clarity and guidance to employees, human resource professionals, and employers generally with respect to handling of the various unique aspects of requests for accommodations and other issues relating to religious observances and practices and their effect on workplaces."

Key Changes

The guidance incorporates U.S. Supreme Court precedent and other federal court opinions that have been issued since 2008, which interpret workplace protections based on religion under Title VII of the Civil Rights Act of 1964.

The revisions include updates about employee protection from religious discrimination related to reasonable accommodations and harassment. "As the agency responsible for enforcing Title VII, it is imperative that we stay at the forefront of these issues to ensure compliance with the law," said EEOC Chair Janet Dhillon.

Vice Chair Keith Sonderling noted that the guidance is meant to be a practical resource for employers, employees and EEOC enforcement staff. "The guidance explains the variety of issues applicable to religious-discrimination claims and provides guidance to employers on how to balance the needs of individuals in a diverse workplace."

[Update: On Jan. 21, President Joe Biden named Charlotte Burrows as chair of the EEOC and Jocelyn Samuels as vice chair. The three Republican commissioners—Janet Dhillon, Keith Sonderling and Andrea Lucas—will continue to serve as members of the commission.]

According to the agency, noteworthy topics addressed in the updates include discussions about:

• The religious-organization exemption under Title VII and the ministerial exception.
• Reasonable accommodations, including a section on common methods of accommodation in the workplace.
• A cooperative information-sharing process between employers and employees regarding religious accommodation requests, which would be similar to the interactive process used for disability accommodation requests under the Americans with Disabilities Act.
• Special considerations for employers when they are balancing anti-harassment and reasonable-accommodation requirements regarding religious expression.

The proposal also "expands the discussion of defenses that may be available to religious employers," according to the EEOC. For instance, the guidance would account for the Supreme Court's 2014 decision in Burwell v. Hobby Lobby Stores Inc., No. 13-354. In that case, the court said the federal government could not enforce the Affordable Care Act's contraceptive coverage mandate against a closely held corporation because the requirement conflicted with the owners' religious beliefs.

In 2015, the Supreme Court sided with the EEOC in a case alleging religious discrimination because retailer Abercrombie & Fitch refused to hire an applicant whose headscarf—which was worn for religious reasons—didn't conform to its dress code policy. The high court held that an employer may not refuse to hire an applicant if the need for a religious accommodation is a motivating factor in the employer's decision, unless the accommodation would pose an undue hardship.

"Employers should allow religious expression among employees at least to the same extent that they allow other types of personal expression that are not harassing or disruptive to the operation of the business," the updated guidance states.

Mixed Reviews

Some religious organizations applauded the update. "We are grateful to the commission for this updated guidance and for the effort it has undertaken to explain Title VII with greater precision and clarity," said the National Association of Evangelicals and the U.S. Conference of Catholic Bishops in a joint letter to the EEOC, which was posted by Bloomberg Law. In December 2020, the religious organizations offered suggestions to provide more clarity in the guidance.

The Sikh Coalition, however, criticized the EEOC for rushing the guidance. "This revised set of guidance will likely have serious consequences for religious minorities, members of the LGBTQ+ community, women and many other Americans," the coalition said.

The three Republican EEOC commissioners—Dhillon, Sonderling and Andrea Lucas—voted in favor of publishing the update, and the two Democrat commissioners—Charlotte Burrows and Jocelyn Samuels—voted against it.

Burrows said the update "does not always strike the proper balance" between religious freedom and equal protection under the law.

More EEOC Updates

On Jan. 13, the EEOC also approved a formal opinion letter addressing the Older Workers Benefit Protection Act (OWBPA) and the Age Discrimination in Employment Act (ADEA). "A formal opinion letter represents the commission's official position on the matter raised and reliance upon it may provide a defense to liability," the EEOC explained.

"The opinion letter clarifies that employers subject to the requirements of the ADEA are not required to include in OWBPA disclosures employees working outside the United States who are not U.S. citizens because such individuals are not 'employees' for purposes of the ADEA," the agency said.

The agency also voted to update its procedures on the delegation of litigation authority. "Going forward, the commission has the ability to vote on all recommendations to litigate," the EEOC said. 

Under Title VII, the EEOC has authority to initiate or intervene in litigation against employers to enforce federal anti-discrimination laws, and the EEOC general counsel is responsible for conducting the litigation.

The revised procedures maintain the categories of litigation which the commission must approve. "For cases that do not fall under any of the identified categories, the revised delegation requires the general counsel to transmit the case to all commissioners for a five business-day review period," the EEOC said.

Additionally, the agency announced that it will begin collecting EEO-1 data from covered employers in April. The EEO-1 survey asks for the number of employees who work for a covered business sorted by job category, race, ethnicity and gender.