The Equal Employment Opportunity Commission voted on January 15, 2021, to finalize long-awaited revisions to its Compliance Manual covering religious bias in the workplace and addressing protections for religious employers. The revised guidance—last updated in 2008—takes into account recent court decisions and flags a handful of emerging issues.
The lion’s share of the changes to the Compliance Manual relate to protections for religious employers. The revised guidance adopts a relatively expansive reading of Title VII’s “religious organizations” exemption, and explains that qualified religious organizations may terminate or refuse to hire a worker “whose conduct or religious beliefs are inconsistent with those of its employer.” It remains to be seen how the Commission will apply this language to situations where, for instance, religious organizations prohibit employees from engaging in sexual conduct outside the confines of traditional marriage.
The revisions to the manual also incorporate the Supreme Court’s recent decisions regarding the so-called “ministerial exception,” a constitutional doctrine that prohibits the government from interfering in disputes between a religious institution and certain employees who perform vital religious duties at the core of the institution’s mission. Embracing the Supreme Court’s broad treatment, the guidance explains that “[t]he ministerial exception is not limited to the head of a religious congregation, leaders, ministers, or members of the clergy, and can apply to ‘lay’ employees and even non-‘co-religionists’ or those not ‘practicing’ the faith.”
Turning to Title VII’s prohibition on religious discrimination—i.e., for employers not covered by an exemption—the new guidance offers mostly nuanced changes. For example, the revisions explain that in some circumstances an employer will be “on notice”—even absent an accommodation request—that a work policy conflicts with an employee’s religious observance, and therefore must provide a reasonable accommodation unless doing so would create more than a “de minimis” burden.
The revised guidance gives special attention to the issue of religious expression in the workplace, advising employers to “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.” Consistent with recent guidance from the OFCCP, the Compliance Manual now states that “[m]ere subjective offense or disagreement with unpopular religious views or practices by coworkers is not sufficient to rise to the level of unlawful harassment.”
Somewhat surprisingly, the main text of the new guidance does not directly address the issue of religious accommodations for workers who object to their employers’ mandatory vaccination policies. However, the EEOC has issued separate guidance on the issue.
