EEOC Proposes Updates to Guidance on Religious Discrimination

By Douglas Lipsky

In November 2020, the U.S. Equal Employment Opportunity Commission (EEOC) announced proposed updated guidance on religious discrimination. The update addresses several matters and describes ways in which Title VII of the Civil Rights Act of 1964 (Title VII ) protects individuals from religious discrimination. Because the proposed guidance does not have the full force and effect of law, it takes an experienced religious discrimination attorney to protect your rights. 

The EEOC Compliance Manual: Religious Discrimination

The EEOC is considering revisions to Section 12 of its compliance manual on religious discrimination, last updated in 2008. The EEOC noted that the current version does not reflect important court decisions and recent legal developments since then. 

In short, the revisions to the guidance include important updates to protections for employees from religious discrimination in the context of reasonable accommodations and harassment and further clarifies defenses that may be available to religious employers. Highlights of the proposed update include: 

  • EEOC enforcement powers — The updated guidance specifically addresses the interplay between Title VII and the Religious Freedom Restoration Act (RFRA) and intimates that private employers may be able to use RFRA to defend a Title VII claim; however courts disagree about whether such a defense is allowed. 
  • Assessing charges of religious discrimination —  The EEOC instructs investigators to accept a charging party’s testimony that the belief, observance, or practice at issue is religious without as much investigation to obtain objective information. 
  • Employer Best Practices — The guidance recommends that employers give religious expression a degree of heightened protection compared to other types of personal expression, as long as it is not harassing or disruptive. 

Although charges filed based on religious discrimination remain a small percentage of EEOC charge types (3.7 percent in the fiscal year 2019), religious discrimination claims are on the rise. 

What exactly is religious discrimination?

Religious discrimination in the workplace occurs when an individual is treated unfairly because of his or her religious beliefs or the beliefs of an associate. In an employment setting, the term religion refers to any sincerely held ethical, personal, or religious belief. 

In short, employers are prohibited from discriminating based on religion under city, state, and federal law.  Generally, there are two types of religious discrimination — disparate treatment and failure to provide reasonable accommodation:

  • Religious disparate treatment occurs when an employment decision (hiring, firing, promoting) is based on religion or an employee is subjected to harassment because of his or her religious beliefs.
  • Reasonable accommodation discrimination occurs when an employer fails to provide reasonable accommodation for an employee’s religious beliefs (e.g allowing an employee to observe daily prayers, take time off to observe a religious holiday).

If you believe that you have been discriminated against for your beliefs, turn to Lipsky Lowe LLP. We have the skills and experience to protect your rights, inside and outside of the courtroom.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.