In New Guidance on Religious Discrimination, EEOC Focuses on the Rights to Religious Expression by Employees and by Religious Employers

On January 15, 2021, shortly before President Trump left office, the EEOC issued revisions to its Compliance Manual on Religious Discrimination, last updated in 2008. The document does not have the force of law and is non-binding. Rather, it stakes out the EEOC’s position on covered issues and thereby provides important guidance to employees and employers.

The revised Guidance is controversial in part because of the relatively hasty manner in which it was issued. Indeed, its issuance drew the rebuke of the two Democrat members of the EEOC, who said that stakeholders had not been given a sufficient opportunity to review and comment on it. Yet for now, at least, it represents the EEOC’s views on the subject.

The revised Guidance substantively reiterates most of what has been in the Guidance since 2008. The changes appear intended primarily to convey the EEOC’s position that it believes the courts have expanded the Title VII rights of employees and of religious employers since the Guidance was first issued in 2008. Among other changes, the revised Guidance discusses the following:

  • The First Amendment, the Religious Freedom Restoration Act (RFRA), and their potential role in guarding religious expression by employers. The revised Guidance states that even though the First Amendment and RFRA bind only the government, and despite a dearth of case law in this area, they “might” serve as a defense for even private employers who claims that they are being compelled to make a certain accommodation or refrain from enforcing a discriminatory policy. The EEOC says that the interaction between RFRA and Title VII is an “evolving area of the law” and the revised Guidance does not seek to “define the parameters of the First Amendment or RFRA.” Section 12-I(C)(3).
  • Employees’ consensual, non-harassing conversations about religious topics do not constitute harassment of co-workers—and employees should be cautious about concluding that religious expression is disruptive. See Section 12-III(B)(2). Employers can restrict religious expression that creates conflict in the workplace or involves harassment, as long as similarly situated employees are not being treated differently. Section 12-II(A). When evaluating whether conflict exists, “general disgruntlement, resentment, or jealousy” will not justify restriction. As the revised Guidance further clarifies: “Undue hardship requires more than proof that some coworkers complained or are offended by an unpopular religious belief or by alleged “special treatment” afforded to the employee requesting religious accommodation; a showing of undue hardship based on coworker interests generally requires evidence that the accommodation would actually infringe on the rights of coworkers or cause disruption of work.” Section 12-IV(B)(4).
  • What constitutes a “religious organization,” and such organizations’ rights go religious expression under Title VII, may be broader than indicated in the previous Guidance.
    • The revised Guidance states that “religious organizations” are those whose “purpose and character are primarily religious,” and is a fact-intensive inquiry.  Traditionally, churches, houses of worship, schools, hospitals, and charities have qualified as religious organizations.  However, the revised Guidance makes clear the EEOC’s view that for-profit corporations can theoretically constitute “religious organizations” that are permitted to hire and employ employees of a particular religion. Section 12-I(C)(1) Similarly, an entity is not disqualified from being a religious organization merely because it engages in “secular activities.” Id. Rather, the EEOC must apply a multi-factor test to determine whether a particular organization is “religious” in nature.
    • Religious organizations’ right to employ workers of a particular religion permits those organizations to take adverse employment actions against workers whose “conduct or religious beliefs are inconsistent with those of [the] employer,” as long as religion is not used as a pretext for discriminatory motive. Section 12-I(C)(1) (emphasis added) The pretext inquiry focuses only on the “sincerity” of the employer’s alleged religious belief, not its “validity or plausibility.” Here, the EEOC seems to be saying that religious organizations can discriminate against employees based on conduct the organization finds incompatible with its religious views, irrespective of whether the employee’s religious beliefs are inconsistent with the organization’s.

The Bottom Line for Employers

The revised Guidance makes clear that the EEOC – at least as it was constituted at the tail-end of the Trump Administration – believes that employers must carefully consider and weigh employees’ rights to religious expression in the workplace before taking adverse employment action based on such expression. The Guidance similarly seeks to make clear that religious organizations have more latitude than may have previously been understood to make employment decisions based on their religious beliefs, even if those decisions sometimes have the effect of discriminating against employees. The revised Guidance is an important resource for employers that are required to confront similar questions.