On November 17, 2020, the Equal Employment Opportunity Commission (“EEOC”) published a proposed update to its 2008 guidance on religious discrimination in the workplace.  The five member commission voted 3-2 to issue the proposed guidance with the two democratic members objecting. The proposed guidance can be accessed here.

Although the guidance has not been updated in 12 years, it is likely that this proposal in the waning days of the Trump administration, came at least in part due to recent religious liberty cases issued by the US Supreme Court.  Most recently, the case of Our Lady of Guadalupe School v. Morrissey-Berru, held that the “ministerial exception” under the religion clauses of the First Amendment which bars ministers from suing churches and other religious institutions for employment discrimination precluded cases filed by certain Catholic school teachers.  Although the teachers were not ordained ministers, the schools had argued that the exception nonetheless applied because they played a key role in teaching religion to their students.  The Court, in a 7-2 vote, agreed.

The EEOC routinely issues guidance on a number of issues of relevance to the workplace ranging from disability related inquiries to sexual harassment.  Although guidance from the EEOC does not have the force of law, it is routinely relied upon by employers and courts in interpretation of the federal anti-discrimination laws.  Most importantly, such guidance is routinely relied upon by investigators reviewing charges of discrimination filed with the agency.

The proposed guidance is lengthy and focuses on a number of significant areas including definitions of religious beliefs, employment decisions based on religion, harassment, reasonable accommodation, and retaliation.  For example, the guidance emphasizes that Title VII requires employers to accommodate religious beliefs which are “sincerely held” and that whether a belief is sincerely held is not usually in dispute.

Although many case studies and examples are provided in the proposed guidance, a few significant ones are restated here:

Religious Organization Exemption Applies

Justina taught mathematics at a small Catholic college, which requires all employees to agree to adhere to Catholic doctrine.
After she signed a pro-choice advertisement in the local newspaper, the college terminated her employment because of her public support of a position in violation of Church doctrine.  Justina claimed sex discrimination and retaliation and alleged that male professors were treated less harshly for other conduct that violated Church doctrine.  Because the exemption to Title VII preserves the religious school’s ability to maintain a community composed of individuals faithful to its doctrinal practices, and because evaluating Justina’s discipline compared to the male professors, who engaged in different behavior, would require the court to compare the relative severity of violations of religious doctrines, Title VII’s religious organization exception bars the sex discrimination and retaliation claims. The analysis would likely be different if a male professor at the same school signed the same advertisement and was not terminated.


Charles, the president of a company that owns several gas stations, needs managers for the new convenience stores he has decided to add to the stations. He posts a job announcement at the Hindu Temple he attends expressing a preference for Hindu employees.  In doing so, Charles is engaging in unlawful discrimination.

Religious Objection to Training Program-Employee Need Not Be Excused

Employer XYZ holds an annual training for employees on a variety of personnel matters, including compliance with EEO laws and also XYZ’s own internal anti-discrimination policy, which includes a prohibition on sexual harassment discrimination. Lucille asks to be excused from the portion of the training on sexual orientation discrimination because she believes that it “promotes the acceptance of homosexuality,” which she sincerely believes is immoral and sinful based on her religion.  The training does not tell employees to value different sexual orientations but simply discusses and reinforces laws and conduct rules requiring employees not to discriminate against or harass other employees based on sexual orientation and to treat one another professionally. Because an employer needs to make sure that its employees know about and comply with such laws and workplace rules, it would be an undue hardship for XYZ to excuse Lucille from the training.

The proposed guidance is now open for comments by the public until December 17, 2020.  The linked document provides a method for giving comments.

Procedurally, the guidance could be finalized prior to the inauguration of a new president in January.  Thereafter, President-Elect Biden could request that the EEOC revisit the guidance or leave the final guidance in place.  If it is not final at the time the new president takes office, it could be withdrawn or modified similar to what occurred when President Trump took office and his then Secretary of Labor withdrew the proposed rule for revision of the salary test for exempt employees and sometime later issued a modified one.