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EEOC Issues Draft Religious Discrimination Guidance

    Client Alerts
  • November 19, 2020

On Tuesday, the Equal Employment Opportunity Commission issued draft revisions to the portion of its compliance manual that addresses religious discrimination. The manual is used by EEOC investigators to help determine whether the agency believes that a charging party’s rights have been violated. The draft was approved along party lines, with Democratic-appointed commission members complaining that the revisions were rushed in an attempt to finalize them prior to likely changes in the makeup of the EEOC following the presidential election.

The EEOC based the changes on U.S. Supreme Court and other decisions issued since the last revisions to that section of the manual in 2008. These cases include decisions that expanded the “ministerial exception,” which allows religious employers to make certain employment decisions with immunity from discrimination claims. The draft also cites the Supreme Court’s Hobby Lobby decision that granted a private, secular employer the right to avoid application of some federal laws based on its owners’ religious objections.

If finalized, the manual would direct EEOC investigators to give more weight to employers’ religious beliefs when analyzing employment discrimination claims. These employer objections are anticipated to increase in light of this year’s Supreme Court decision finding that sexual orientation and gender identity are protected under Title VII’s sex discrimination prohibitions.

The EEOC is accepting comments on the draft revisions through December 17. It is likely that the revisions will be finalized prior to the end of 2020.