EEOC Revises Enforcement Guidance on Religious Discrimination
February, 2021 - Lisa Cleary, Catherine Djang
The Equal Employment Opportunity Commission (“EEOC”) recently updated its Compliance Manual Section on Religious Discrimination, seeking to clarify how Title VII of the Civil Rights Act of 1964 (“Title VII”) protects individuals from religious discrimination in the workplace. The enforcement guidance also discusses the legal protections available to religious employers, which have been bolstered in recent years.
Title VII protects workers from employment discrimination based on their religion, among other things. The statute requires employers to accommodate religious beliefs, practices and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer’s business.
The EEOC’s prior guidance on this topic was issued in 2008. In announcing the new guidance on January 15, 2021, the EEOC explained that the revisions are intended to reflect recent legal developments and emerging issues, and underscored that several U.S. Supreme Court and lower court decisions have “altered the legal landscape.”
Defenses that May Be Available to Religious Employers: The Religious-Organization Exemption and the Ministerial Exception
One of the most significant additions to the guidance is the EEOC’s expansive view of certain exceptions to Title VII coverage for religious organizations.
Under Title VII, religious organizations are permitted to hire and employ individuals “of a particular religion.” A qualifying religious organization may assert as a defense to a Title VII claim of discrimination or retaliation that it made the challenged employment decision on the basis of religion.
This “religious organization” exemption applies only to those organizations whose “purpose and character are primarily religious.”1 According to the EEOC, the Commission will consider the facts on a case-by-case basis; no one factor is dispositive in determining if a covered entity is a religious organization under the exemption. Moreover, the guidance leaves open the possibility that some for-profit organizations may qualify for the exemption. In response, several public groups voiced strong opposition to the EEOC’s characterization of the exemption, arguing, among other things, that the extension of the exemption to for-profit businesses would give them “license to discriminate” against women and LGBTQ+ individuals.
Another broad limitation on employment discrimination claims brought against religious organizations is the “ministerial exception.” This rule was established by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), which held that the First Amendment safeguards the right of a religious organization, free from interference from civil authorities, to select those who will “personify its beliefs,” “shape its own faith and mission,” or “minister to the faithful.” This affirmative defense applies to discrimination claims involving selection, supervision, and removal against a religious institution by employees who “play certain key roles.”2 Unlike the statutory religious organization exemption, the ministerial exception applies regardless of whether the challenged employment decision was for “religious” reasons.
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1 The EEOC explains that courts have articulated different factors to determine whether an entity is a religious organization, including: (1) whether the entity operates for a profit; (2) whether it produces a secular product; (3) whether the entity’s articles of incorporation or other pertinent documents state a religious purpose; (4) whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue; (5) whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; (6) whether the entity holds itself out to the public as secular or sectarian; (7) whether the entity regularly includes prayer or other forms of worship in its activities; (8) whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and (9) whether its membership is made up of coreligionists.
2 The Supreme Court subsequently clarified, in Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), that the ministerial exception is not limited to “ministers” or members of the clergy, but rather applies to any employee who performs “vital religious duties” at the core of the mission of the religious institution. For instance, in Our Lady of Guadalupe, the Court held that the ministerial exception barred employment discrimination claims by two elementary school teachers in Roman Catholic schools. The Court explained that for a private religious school, “educating and forming students in the faith,” “inculcating its teachings, and training [students] to live their faith are responsibilities that lie at the very core of the mission” and “the selection and supervision of the teachers” who do this work are necessarily core elements of achieving the mission