What Employers Need to Know About the Long-Awaited EEOC Religious Discrimination Update

The Equal Employment Opportunity Commission (EEOC) revised its Compliance Manual on Religious Discrimination for the first time in 12 years, and employers should take note.

The updates were guided by Supreme Court decisions handed down since the manual’s last update. The proposed manual:

• Expands the definition of a “religious organization” so that it does not rule out for-profit entities or those engaged in secular activities. The updated manual removes the EEOC’s four-factor test to decide if an organization is a religious organization. Instead, it looks to “all the facts.” However, the manual does not answer the question of whether a for-profit corporation can be a religious corporation.
• Expands the ministerial exception in the wake of two Supreme Court decisions. In both cases, the court ruled that this exception is not limited to clergy members or those who “minister.” Under the updated manual and precedent, this exception extends to those the religious organization selects to “personify its beliefs,” “shape its faith and mission,” or “minister to the faithful.” This could include teachers, musicians, kosher food inspectors and other employees.
• Clarifies that an employer may not refuse to hire people because the employer presumes they will request a reasonable accommodation, regardless of whether they tell the employer they need one. For example, an employer cannot refuse to hire someone just because the employer assumes there will be a conflict between an applicant’s headscarf and the company’s “look policy.”
• Clarifies that when an employer claims an employment decision was based on religion, any inquiry into the basis for the decision must be limited to whether the reason for the decision was sincere.
• Gives examples of when an employee’s religious beliefs on hot-topic issues like birth control, abortion or LGBTQ rights might conflict with employer requirements.

The proposed manual is open for public comment until Dec. 17.

Please contact Clerc Cooper or any member of Phelps’s Labor and Employment team if you have questions or need advice and guidance.