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


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

[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.