EEOC Seeks to Revise Religious Discrimination Guidance, Requests Comments

Author: Robert S. Teachout, XpertHR Legal Editor

December 1, 2020

The Equal Employment Opportunity Commission (EEOC) announced it has published proposed revisions to its Compliance Manual Section on Religious Discrimination and is seeking public comments before finalizing the guidance. The workplace discrimination guidance was last updated in 2008 and does not reflect legal developments since then.

The proposed guidance will incorporate opinions by the Supreme Court and other federal courts interpreting workplace protections on the basis of religion under Title VII of the Civil Rights Act. For example, the proposed update addresses the Supreme Court rulings in Burwell v. Hobby Lobby Stores, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n and EEOC v. Abercrombie & Fitch. These cases addressed increased protections for employees against religious discrimination in the workplace and outlined protections available to religious employers under Title VII.

The proposed revisions include:

  • Addressing the interaction between Title VII and the Religious Freedom Restoration Act (RFRA) and discussing exceptions to the EEOC's enforcement powers;
  • Changes in how the EEOC may assess religious discrimination charges;
  • Employer best practices in regards to religious expression in the workplace; and
  • Discussing the intersection between religious discrimination and sex discrimination protections, particularly with regard to the LGBTQ community.

Although religious discrimination charges are only a small part of all EEOC charge types (3.7% in fiscal year 2019), they have been trending upwards.

For example, the EEOC is currently suing Kroger Company, the supermarket giant, for allegedly firing two employees who asked for a religious accommodation to the company's revised dress code (EEOC v. The Kroger Co. dba Kroger Store No. 625). The employees had asked to be excused from wearing a new work apron displaying an emblem they believed contradicted their religious beliefs.

Although the EEOC Compliance Manual is not binding and has no force of law, employees may gain insight on how the agency may view religious discrimination charges going forward and in regards to employer best practices.

Comments on the proposed revisions may be submitted until December 17, 2020.