On November 9, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) voted 3-2 to release a proposed update to Section 12 of the EEOC Compliance Manual addressing religious discrimination. Section 12 of the Compliance Manual has not been revised since 2008. The public has until December 17, 2020 to issue comments to the proposed update, which can be done here.
EEOC is tasked with civil enforcement of federal employment laws prohibiting discrimination on the basis of religion under Title VII of the Civil Rights Act of 1964. EEOC’s proposed updated primarily addresses two prongs of religious discrimination issues: (1) protections for employees with regard to reasonable accommodations and harassment, and (2) protections and defenses available to religious employers against Title VII claims brought by employees.
Here are some highlights of the 110-page proposed update:
EEOC Expands Discussion of Exceptions to its Enforcement Powers
Although EEOC does not enforce the Religious Freedom Restoration Act (“RFRA”), a federal statute that prohibits governmental entities from substantially burdening an individual’s religious exercise, EEOC devotes a substantial portion of its guidance to addressing the interaction between Title VII and the RFRA. The proposed guidance even goes so far as to suggest ways that a private employer might be able use RFRA to defend against a Title VII claim. For example, the proposed guidance notes that “a private sector employer might argue that its rights under the First Amendment’s Free Exercise Clause, or under RFRA, would be violated if it is compelled by Title VII to grant a particular accommodation or otherwise refrain from an employment policy.” As EEOC acknowledges however, courts currently disagree as to whether such defense is allowed. Whether a private employer can successfully assert a defense against a Title VII claim of discrimination under RFRA is far from clear, even if the EEOC is indicating a willingness to undercut its own enforcement authority.
Signaled Changes Regarding Charge Investigations of Employees’ Claims that a Belief is Religious
Sections entitled “Note to EEOC Investigators” signal changes in how the EEOC may assess charges filed on the basis of religious discrimination going forward. In considering whether a belief is “religious,” the proposal makes small changes that may have significant impacts in a charge investigation. The 2008 guidance tells EEOC investigators that in “some cases” the investigator can accept the charging party’s testimony that the belief, observance, or practice at issue is religious. The proposed update changes this instruction from “some cases” to “most cases,” indicating to investigators that they can more often rely solely on the employee’s testimony. The revisions also shift to emphasize that the investigator’s general knowledge is often sufficient to make a determination that a practice, observance, or belief is religious, as compared to the 2008 guidance, which advises the EEOC investigator to seek further objective information if the investigator’s general knowledge is insufficient. These changes indicate that the EEOC may be more likely to accept the employee’s word on the religiosity of the belief, observance, or practice without as much investigation.
EEOC’s Employer Best Practices Imply Giving Greater Leeway to Religious Expression in the Workplace
Changes to “Employer Best Practices” also suggest that the EEOC may expect employers to provide more protections for employee religious expression in the workplace. For example, the current Compliance Manual advises that employers should allow religious expression among employees “to the same extent” that they allow other types of personal expression (so long as it is not harassing or disruptive). The proposed update changes this advice to “at least to the same extent” and quotes from EEOC v. Abercrombie & Fitch Stores that Title VII gives favored treatment to religious observance and practice. Together, these revisions imply that employers should give religious expression some kind of heightened protection as compared to other types of personal expression. Employer best practices are also softened with regard to what actions an employer should take to prevent a hostile work environment due to an employee’s religious expression. Where the current Compliance Manual advises an employer to take steps to end the conduct to avoid the potential of creating a hostile work environment in the face of another employee’s complaint, the revisions change this advice to “investigate and, if appropriate, take steps to ensure the expression does not become sufficiently severe or pervasive.”
The Intersection of Competing Discrimination Protections is Not Made Clear
The intersection of religious discrimination protection and sex discrimination protection—especially for the LGBTQ community—may be the topic employers are most in need of clear guidance from the EEOC. Unfortunately, employers should not expect to find a “magic bullet” in the proposed update as currently written. The proposed update includes an example in an attempt to address this conflict, but instead sets up a tight wire act for employers to perform. Whether an employee can be mandated to attend diversity training or must be excused from a training (or portions of a training) as a religious accommodation comes down to the content of the training. Employers may require attendance at trainings on equal employment opportunity laws and the company’s anti-discrimination policies and may go as far as requiring employees to affirm that they will treat each other “professionally” and with “courtesy, dignity, and respect.” However, employers may not be able to require employees to affirm support or agree with conduct that conflicts with the employee’s religious beliefs. The proposed revisions cite to a 2004 federal district court case in which an employer violated Title VII in failing to accommodate an employee’s refusal to sign a diversity policy asking him to “value the difference among all of us” as against his religious beliefs. See Buananno v. AT&T Broadband, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004).
The EEOC Compliance Manual is not binding and has no force of law. Nonetheless, employers should take heed of the Compliance Manual regarding employer best practices and to gain insight on how EEOC may consider filed charges on religious discrimination claims in the future. Although charges filed with the EEOC on the basis of religious discrimination allegations remain a small fraction of all EEOC charge types (3.7% of all charges in fiscal year 2019), the overall number and percentage of total charges concerning religious discrimination claims have been trending upwards over the past few decades.