Work in the Time of COVID-19: FAQs for Employers

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On November 17, the EEOC released proposed updates to its Compliance Manual on Religious Discrimination (available here), which is open for public comment for 30 days from its release.  These are the first updates to the religious discrimination guidance in twelve years.

The revisions incorporate case law developments from recent years and include updates to the protections for employees from religious discrimination in the context of reasonable accommodations and harassment.

According to the EEOC’s own press release, the guidance “expands the discussion of defenses that may be available to religious employers.”  Specifically, it expands the ministerial exception, which previously provided a narrow defense shielding religious employers from claims under discrimination laws.  The guidance says “[t]he exception is not limited to the head of a religious congregation, leaders, ministers, or members of the clergy, and can apply to ‘lay’ employees and even non-‘co-religionists’ or those not ‘practicing’ the faith.”  It also indicates that the ministerial exception may be expanded to provide protection to for-profit organizations in certain circumstances.

After reviewing the public input received, the EEOC will consider appropriate revisions to the draft guidance before finalizing it and replacing the 2008 version.  This revised guidance indicates a potential renewed focus by the EEOC on religious discrimination claims, and once it is finalized, employers should revisit their policies and practices around religious accommodation.


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