Tue, 12/01/2020
On Tuesday, November 17, 2020, the U.S. Equal Employment Opportunity Commission announced changes to its religious bias guidance that could make it easier for employers to defend against workplace discrimination claims.
Updates to the EEOC’s Compliance Manual Section on Religious Discrimination articulate a broad set of legal defenses and safe harbors for employers, including an expanded “ministerial exception” that potentially excludes broad categories of employees from federal protections. Citing the U.S. Supreme Court’s recent decision in Our Lady of Guadalupe School v. Morrisey-Berru, the guidance explains that the once-narrow carveout is no longer “limited to the head of a religious congregation, leaders, ministers, or members of the clergy,” and can apply to preempt discrimination claims from “‘lay’ employees and even non-‘co-religionists’ or those not ‘practicing’ the faith” on First Amendment grounds. As a result, an employer will be able to assert that the selection and supervision of such employees is central to its religious mission, and thus, government oversight of these responsibilities would amount to unconstitutional interference with its religious freedoms
The updated Manual also proposes expanding the “religious organization” exemption in Title VII of the Civil Rights Act, which allows religious employers to give job preference to members of their own religion, to include for-profit corporations. Although the EEOC previously emphasized an employer’s nonprofit status as key to determining whether it qualified for the religious exemption, the agency now asserts that the law does not clearly establish any such a limitation, and that “[w]hether a for-profit corporation can constitute a religious corporation under Title VII is an open question.”
The Commission decided to publish the proposed update by a 3-2 vote, with both Democratic members expressing concerns about whether the guidance strikes the right balance between religious liberty and other critical civil rights. EEOC General Counsel Sharon Fast Gustafson stated that she anticipates more litigation exploring the intersection of religious protections and anti-discrimination laws, particularly in the context of LGBTQ rights, women’s health, and accommodations for religious employees.
The updated EEOC Manual is open for public comments until December 17, 2020, after which the Commission will review the public input and consider appropriate revisions to the guidance before voting on its final approval. The guidance, even when final, does not have the force of law, and it is unclear whether or how the changes will be implemented under the Biden Administration. The President-elect has pledged to ensure more federal oversight of workplace discrimination and proposed doubling the funding for the agency, so either way, employers can expect an increase in EEOC activity.
For more information about your right to be free from discrimination, harassment, and retaliation in the workplace, please visit MSE’s #meToo in the Workplace at https://www.mselaborlaw.com/practice-areas/metoo-in-the-workplace.
