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Posts Tagged ‘Civil Rights Act of 1964’

EEOC Has Proposed New Religious Accommodation Guidance And It May Just Help Employers Defeat Workplace Bias Claims

Posted on: November 25th, 2020

By: Natalie Pulley

On November 17, 2020, the EEOC released proposed guidance on religious discrimination in the workplace – the first update to its religious discrimination compliance manual since 2008. While religious discrimination cases only make up a small percentage of all charges filed with the EEOC, notable cases, such as the 2014 U.S. Supreme Court case involving Hobby Lobby,[1] have raised questions of what protections are available to religious employers.

In general, an employer is prohibited from discriminating because of religion in the terms, conditions or privileges of employment under Title VII of the Civil Rights Act of 1964 (“Title VII”). However, there are exceptions for certain employers. Certain religious employers are permitted to give preference to members of its own religion. A “ministerial exemption” also protects the right of a religious organization to select those who will personify its beliefs, shape its faith and mission, or “minister to the faithful.”[2] If an exception is found to apply, the employer has a defense against discrimination claims by employees under federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act.

So, what has changed? The guidance provides a wide berth for religious employers and embraces the Supreme Court’s expansive take on the “ministerial exemption” shielding religious employers from certain workers’ claims. The EEOC clarified the exemption is not limited to employees who perform exclusively religious functions but rather, the exemption can also apply to lay employees and even those not “practicing the faith.”

Certain for-profit corporations may also benefit from the proposed guidance. The EEOC did away with a “significant factor” analysis that previously included nonprofit status as a core tenant in claiming the exemption. “Whether a for-profit corporation can constitute a religious corporation under Title VII is an open question,” the EEOC said. The guidance provides no single variable should be dispositive in determining an organization’s status under Title VII. This change provides certain for-profit corporations the opportunity to claim an exception as a religious employer.

The proposed guidance also discusses the intersection of religious bias claims with hot button issues. The EEOC includes an example of a nurse who requested a hospital accommodate her religious beliefs by allowing her to trade assignments with other nurses in the Labor and Delivery unit as needed to avoid assisting with abortions. The hospital denied her request stating that, due to staffing cuts and risks to patients’ safety, it could not accommodate the nurse in her current position. Instead, the hospital offered to transfer the nurse to a different position without a reduction in pay or benefits. The EEOC’s guidance states such a transfer would be lawful, clarifying employers have flexibility in accommodating employees while balancing the needs of their business.

Another hot topic, currently the center of a case against The Kroger Co. initiated by the EEOC,[3] is whether employers can be liable for requiring employees to wear, for example, pins or shirts supporting LBGTQ pride despite a worker’s claim it does not fit into their religious beliefs. In the Kroger case, the EEOC claims a grocery store in Arkansas illegally fired two Christian workers who refused to wear company aprons in support of the LGBTQ community on the basis of their religious beliefs. The case is still ongoing, and the court has not ruled on the issue.  Because the EEOC’s proposed guidance does not state a clear position on an employer’s liability when religious liberty and LGBTQ issues collide, employers will have to wait and see where the courts fall on these issues before having a clear answer on what is and is not permitted.

Finally, the proposed Guidance provides that “secular” decorations in the work environment, such as wreaths, do not run afoul of Title VII even if there are some in the office who don’t celebrate the holiday associated with the decoration.  The proposed Guidance also provides that an employer does not have to decorate for every holiday that may be associated with the religion of all employees.  Rather, an employer is permitted to decorate for just one holiday.  The EEOC does note, however, that an employer’s accommodation obligations still exist and must be assessed based upon a particular employee’s specific request.

The proposed Guidance is available for public comment until December 17, 2020, during which the public can submit their thoughts on the proposed guidance.

If you have questions or would like more information, please contact Natalie Pulley at [email protected].


[1] See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 719 (2014).

[2] See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188-89 (2012).

[3] Case No. 4:20-cv-01099 in the U.S. District Court for the Eastern District of Arkansas.

U.S. Supreme Court Rules 6-3 That Federal Employment Law Prohibits Discrimination On The Basis Of Sexual Orientation Or Gender Identity

Posted on: June 17th, 2020

By: Ryan Greenspan

In perhaps the most significant and far-reaching employment-law decision in decades, the U.S. Supreme Court ruled on June 15, 2020 that the 1964 Civil Rights Act’s prohibition of discrimination “because of… sex” necessarily includes discrimination based on one’s sexual orientation or gender identity. This decision resolves a circuit split that had developed over the last three years, which meant that the question of whether sexual-orientation or gender-identity discrimination was unlawful depended on the federal circuit in which the case arose. In some circuits it was unlawful, in others it was not. Now there is uniformity on this issue throughout the country.

Before the Court were three cases from three different federal circuits:  Bostock v. Clayton County, Georgia; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission. The plaintiffs in Bostock and Zarda alleged they had been terminated because of their sexual orientation, while the plaintiff in Harris Funeral Homes alleged she had been terminated due to her gender identity.

The Supreme Court’s decision largely turned on the phrase “because of… sex” in the statute. As Justice Neil Gorsuch wrote in the majority opinion:

An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

What does this mean for employers? Companies, including government agencies, that discriminate against a worker for being gay or transgender now face the same exposure as if they discriminate against an employee on the basis of race, color, religion, sex, or national origin. These remedies can include back pay, attorney’s fees, and compensatory and punitive damages up to the statutory caps from $50,000 to $300,000, depending on the size of the employer. While 21 states and the District of Columbia already had such protections in place for gay and transgender employees, the Bostock decision adds an extra layer of protection at the federal level, which applies to all states. Employers should adjust their policies accordingly.

It bears noting the 1964 Civil Rights Act applies only to employers with 15 or more employees, so smaller employers are not affected by this ruling (or the Civil Rights Act in general). It is also important to note that, because this decision is interpreting a statute, Congress has the authority to revise or amend the existing law, though there is no indication that it intends to do so.

It will be interesting to see how the Supreme Court’s decision may affect other laws. As Justice Samuel Alito noted in his dissent, over 100 other federal statutes also prohibit discrimination because of sex. If the very concept of sex discrimination necessarily includes discrimination because of sexual orientation or gender identity, as the majority opinion reasons, then these other laws, too, may well be impacted.

If you have questions or would like more information on this decision and its impact on the law, please contact Ryan Greenspan at [email protected].

EEOC Releases Charge Data And Guess What — Retaliation Is The Most Frequently Filed Claim with the EEOC in 2019

Posted on: February 14th, 2020

By: Brent Bean

The Equal Opportunity Employment Commission recently released its 2019 enforcement statistics.  The EEOC is the administrative agency and gatekeeper for employment law claims asserted under Title VII of the Civil Rights Act of 1964.  The EEOC receives charges of discrimination which typically allege such claims as race, disability discrimination or sex harassment.  Notable among the types of charges the Commission received last year, claims of retaliation were the most frequently filed.  Of the over 72,000 charges the EEOC received in 2019, 53.8% articulated claims for retaliation, the most of any type of claim made.

Awareness that retaliation claims are the most frequently filed charge is important for employers in not only fashioning their workplace policies and procedures, but also in implementing training to avoid such claims.  Retaliation occurs, generally speaking, when the employee engages in some type of protected activity, after which the employer takes adverse employment action again the employee.  Lastly, the employee has to show the adverse action would not have occurred but for the protected activity.  Employers’ procedures for investigating workplace claims of discrimination or harassment, along with their policies for documenting not only those investigations but also employee discipline, are key to defending and defeating retaliation claims.

Also noteworthy, the EEOC’s enforcement numbers decreased in 2019.  The Commission filed  157 lawsuits last year, down from 217 in 2018.  Despite the decreased number of actual lawsuits filed, the EEOC’s statistics indicate that enforcement activity continues at a steady clip.  The takeaway is that employers need to be diligent in implementing and updating their workplace training and management practices.

Finally, EEOC’s 2019 statistics show the number of charges filed alleging LGBTQ-based sex discrimination continues to increase.  These charges grew to 1,868 charges in 2019, up 3% from 2018. The Supreme Court heard oral argument on a trio of LGBTQ-based cases in October 2019 and a ruling on whether these claims are viable under Title VII is expected in late Spring or early summer this year.

If you have any questions about workplace training, handbooks and developing compliant policies and procedures, please contact Brent Bean at [email protected].

FMG Client Headed to Supreme Court in Landmark Title VII Case to Resolve LGBT Employment Standards

Posted on: April 23rd, 2019

The Supreme Court yesterday agreed to review two federal circuit court decisions that reached differing conclusions as to whether Title VII of the Civil Rights Act of 1964 covers sexual orientation. For approximately 40 years, the EEOC and the federal circuit courts have unanimously held that Title VII does not encompass sexual orientation. The EEOC changed its position in 2014 and determined that Title VII encompasses sexual orientation. The Seventh Circuit likewise reversed its position in 2017, and the Second Circuit changed its position in early 2018 and held in Zarda v. Altitude Express that Title VII encompasses sexual orientation. Later in 2018, the Eleventh Circuit re-affirmed circuit precedent and held in Bostock v. Clayton County that Title VII does not prohibit discrimination on the basis of sexual orientation. The Supreme Court agreed to review Bostock and Zarda and consolidated the two cases.

Freeman Mathis and Gary, LLP represents Clayton County in Bostock and will argue that Title VII does not apply to a claim of discrimination on the basis of sexual orientation.

In addition, the Supreme Court granted certiorari in the Sixth Circuit case of R.G. & G.R. Harris Funeral Homes v. EEOC. That case raises the question of whether Title VII provides protection to transgender persons. That case is similar in some regard to the Bostock and Zarda cases, however, their distinctions are evident in that the Court did not consolidate the Harris case with Bostock and Zarda.

In granting certiorari in the Harris case, the Supreme Court may revisit a concept outlined in its 1989 decision in Price Waterhouse v. Hopkins, which held that it was unlawful sex discrimination under Title VII to discriminate against employees because they do not conform to ideas of how a certain gender should behave.

These cases will be argued and decided sometime during the Court’s 2019-2020 term, which begins in October.

If you have any questions or would like more information, please contact us at [email protected].