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.