On Jan. 15, 2021, the U.S. Equal Employment Opportunity Commission
published updated guidance to its Compliance Manual on Religious
Discrimination. The revised guidance, the first substantial update since
2008, came just five days prior to Inauguration Day and passed by a narrow
3-2 commissioner vote.
The EEOC aimed to clarify Title VII religious discrimination laws in the
workplace, including the definition of “religion,” the scope of the
religious organization exemption, and when reasonable accommodations must
be made for religious reasons. As the split commission vote suggests, the
new guidance faced broad opposition and the EEOC addressed a wide range of
public comments in an addendum to the guidance.
What falls under the definition of “religion”?
As part of the EEOC’s standard 30-day public input period, commenters
expressed concerns regarding the manual’s definition of religion.
Specifically, several civil rights organizations asked the EEOC to clarify
that “a lack of religious faith” is protected under Title VII, just like
any other religious view. Accordingly, the manual explicitly provides that
“[t]he non-discrimination provisions of the statute also protect employees
who do not possess religious beliefs or engage in religious practices.”
Employers must recognize that Title VII protects any and all approaches to
Which types of organizations qualify for the religious organization
The religious organization exemption allows “a qualifying religious
organization to 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.” While courts consider several factors, including an entity’s
for-profit status, when assessing whether a religious organization
qualifies for the exemption, the new guidance clarifies that no single
factor is dispositive. Previously, the for-profit nature of an entity
excluded it from the exemption under Title VII. In acknowledging the
change, the EEOC stated that “it is possible courts may be more receptive
to finding a for-profit corporation can qualify” for the exemption. Thus,
the guidance potentially expands the types of employers eligible for the
religious organization exemption.
When must an employer make reasonable accommodations for religious
The revised guidance provides that “a denial of religious accommodation
absent undue hardship is actionable,” even without an additional adverse
action against an employee. Stating that the policy is consistent with its
2008 guidance, the EEOC asserted that a failure to accommodate an employee
“where a work rule conflicts with his religious beliefs necessarily alters
the terms and conditions of his employment for the worse.” The manual
mentions that methods of accommodation include: “(1) flexible scheduling;
(2) voluntary substitutes or swaps of shifts and assignments; (3) lateral
transfers or changes in job assignment; and (4) modifying workplace
practices, policies, or procedures.”
To improve the accommodation process, the EEOC encourages open
communication between employers and employees. While an employer is not
required to accommodate based on the employee’s preference, an employer
that is willing to listen to employees can improve workforce morale and
avoid potential religious discrimination claims in the future.
In light of this new guidance, employers should remain vigilant regarding
religious bias and religious accommodation issues in the workplace. With
the recent change in administrations, employers should also prepare for
additional shifts in discrimination policies. Notably, the two dissenting
commissioners to the Jan. 15 guidance, Charlotte Burrows and Jocelyn
Samuels, are now the respective chair and vice chair of the EEOC under the
For assistance in compliance with Title VII, or for any other question
related to employment law, contact the authors of this article or another
member of the McGuireWoods labor and employment team.