Divided EEOC Finalizes Updated Guidance on Religious Discrimination Under Title VII

A divided Equal Employment Opportunity Commission (EEOC) finalized its updated guidance on religious discrimination in the workplace under Title VII of the Civil Rights Act of 1964. On January 15, 2021, the EEOC voted 3-2 to approve the updated guidance to its Compliance Manual on Religious Discrimination. The update modifies the prior guidance issued on July 22, 2008. While EEOC guidance documents do not have the force of law and do not create any binding obligations on the public, they offer helpful insight on the EEOC’s interpretation of existing laws.

In a statement announcing the approval of the updated guidance, the EEOC noted that the 2008 version “[did] not reflect recent legal developments and emerging issues” or the “altered legal landscape” created by U.S. Supreme Court decisions over the last several years. The updated guidance addresses important changes on topics such as religious harassment, workplace accommodation of religious beliefs and practices, and the legal protections available to religious employers.

Among other things, the updated guidance:

• Reiterates the broad definition of “religion”, which encompasses both traditional, organized religions and also new, uncommon religious beliefs such as those held by only a small number of people and those without the presence of a deity.
• Reiterates an employer’s obligation, absent undue hardship, to provide reasonable accommodation to employees with “sincerely held” religious beliefs.
• Clarifies the definition and interpretation of “undue hardship” under Title VII, which differs from the use of the phrase in the Americans with Disabilities Act (ADA).
• Recommends that employers confer with employees to discuss accommodation requests, as the failure to do so, while not an independent violation of Title VII, may result in other adverse legal consequences.
• Clarifies the exemption for religious organizations who may restrict employment opportunities to individuals who practice a particular religion or maintain certain core values, even for positions that do not involve the performance of religious functions.

Notwithstanding the issuance of this new guidance, it is not clear whether appointees to the EEOC by the new Biden Administration will impact the continued viability of the guidance. For the time being, however, employers should consider the guidance as reflective of the EEOC’s current stance and should ensure that their policies address religious discrimination and accommodation and outline the procedures for reporting, investigating, and responding to claims of religious discrimination and/or harassment. Additionally, employers should offer training to managers and supervisors on how to recognize and respond to religious accommodation requests and reports of religious harassment and discrimination.