On Jan. 15, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) published updated guidance to its Compliance Manual on Religious Discrimination. The revised guidance, the first substantial update since 2008, came just five days prior to Inauguration Day and passed by a narrow 3-2 commission vote.
EEOC notation on the purpose: This sub-regulatory document supersedes the Commission’s Compliance Manual on Religious Discrimination issued on July 22, 2008. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. Any final document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
Focus of the Update
The EEOC aimed to clarify Title VII religious discrimination laws in the workplace, including the definition of “religion,” the scope of the religious organization exemption, and when reasonable accommodations must be made for religious reasons. As the Commission’s split-vote suggests, the new guidance faced broad opposition and the EEOC addressed a wide range of public comments in an addendum to the guidance.
As part of the EEOC’s standard 30-day public input period, commenters expressed concerns regarding the manual’s definition of religion. Specifically, several civil rights organizations asked the EEOC to clarify that “a lack of religious faith” is protected under Title VII, just like any other religious view. Accordingly, the manual explicitly provides that “[t]he non-discrimination provisions of the statute also protect employees who do not possess religious beliefs or engage in religious practices.” Employers must recognize that Title VII protects any and all approaches to religion.
Which types of organizations qualify for the religious organization exemption?
The religious organization exemption allows “a qualifying religious organization to assert as a defense to a Title VII claim of discrimination or retaliation that it made the challenged employment decision on the basis of religion.” While courts consider several factors, when assessing whether a religious organization qualifies for the exemption, including an entity’s for-profit status, the new guidance clarifies that no single factor is dispositive. Previously, the for-profit nature of an entity excluded it from the exemption under Title VII. In acknowledging the change, the EEOC stated that “it is possible courts may be more receptive to finding a for-profit corporation can qualify” for the exemption. Thus, the guidance potentially expands the types of employers eligible for the religious organization exemption.
When must an employer make reasonable accommodations for religious reasons?
The revised guidance provides that “a denial of religious accommodation absent undue hardship is actionable,” even without an additional adverse action against an employee. Stating that the policy is consistent with its 2008 guidance, the EEOC asserted that a failure to accommodate an employee “where a work rule conflicts with his religious beliefs necessarily alters the terms and conditions of his employment for the worse.” The manual mentions that methods of accommodation include: “(1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers or changes in job assignment; and (4) modifying workplace practices, policies, or procedures.”