EEOC Issues Proposed Update to Guidance on Religious Discrimination.

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On November 17, 2020, the EEOC issued a proposed update to the agency’s guidance on religious discrimination in the workplace, taking account of the “altered legal landscape” in this area since 2008, when the guidance last was updated.

The proposed guidance addresses every aspect of the obligations of employers and rights of employees under Title VII as they relate to religion and related statutes, including the Religious Freedom Restoration Act.  Among the topics covered:

  • Coverage issues – when a practice or belief triggers Title VII and when it does not (i.e. religious vs. secular beliefs), the requirement of the sincerity of the belief (generally presumed) and certain exemptions from other provisions of Title VII in select circumstances.
  • Employment decisions – how religion and the protections afforded by Title VII apply in the context of recruitment, hiring, promotion, discipline and discharge, compensation, and many other terms and conditions of employment.
  • Harassment – including how religious beliefs and practices may be the basis for coercion in the workplace (including supervisor mandated participation in prayer or penalties imposed for refusal to participate) and how employee proselytizing may amount to harassment of coworkers.
  • Accommodations – the varied areas where requests for accommodations arise, from the common (related to dress codes and other practices that conflict with religion) to the less frequent but equally challenging (use of facilities, such as for prayer meetings, and objections to generally required practices, like payment of union dues or agency fees).

Each section of the guidance includes lists of best practices for employers (and the section on harassment also offers a list of best practices for employees). The proposed update was approved in a 3-2 vote, with two Commissioners opposing moving forward based on the short window they were given to review the draft (5 days) and the reliance by the guidance on many unpublished cases.

Public comments may be submitted through December 17, 2020 via this link.