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EEOC to Update Religious Bias Guidance With High Court Precedent

Nov. 9, 2020, 9:56 PM

The U.S. Equal Employment Opportunity Commission approved changes to its workplace religious discrimination guidance to account for recent U.S. Supreme Court decisions on religious defenses and accommodations, teeing it up for White House review.

The agency’s compliance manual, which is legally non-binding guidance, hasn’t been updated since 2008 to reflect numerous high court decisions related to religious discrimination, according to EEOC legal counsel Andrew Maunz. Agency commissioners voted 3-2 in favor of the proposed changes along party lines, with Republicans in favor.

The update will take into account the 2014 decision in Burwell v. Hobby Lobby Stores Inc., as well as the 2015 outcome of EEOC v. Abercrombie & Fitch, Maunz said.

The justices in Hobby Lobby held 5-4 that owners of “closely held” corporations—where a small number of individuals own the majority of stock—can raise the Religious Freedom Restoration Act as a defense to government actions that substantially burden the free exercise of their religious beliefs. That case involved employer coverage of contraception costs under the Affordable Care Act.

The high court ruled in Abercrombie & Fitch that job applicants don’t need to notify potential employers of a religious conflict that requires accommodation to prove they weren’t hired because of religion.

A complete version of the revised guidance wasn’t made publicly available on Monday.

The EEOC will send the guidance to the White House’s Office of Management and Budget for review, then open it for public comments, before making it final. Though not a rulemaking, the agency is proceeding with a notice-and-comment period for the guidance to comply with several executive orders signed by President Donald Trump last year, which called for more oversight of agency guidance.

In fiscal 2019, the most recent agency data available, the EEOC received 2,725 charges of religious discrimination, making up 3.7% of all allegations of workplace discrimination and retaliation submitted to the EEOC that year.

Partisan Concerns

Democratic Commissioner Charlotte Burrows expressed her support for updating the guidance to reflect legal precedent established since 2008, but said that she was given “a mere five working days” to consider the document that is said to be over 100 pages long. She said the subject matter is particularly complex, and the proposal embraces “novel legal theories.”

“There’s no principled reason to rush this process,” Burrows said, requesting bipartisan conversations about the content before moving forward. Fellow Democratic Commissioner Jocelyn Samuels echoed her concerns, and both commissioners voted against the document.

Andrea Lucas, a Republican on the commissioner, said that the public deserves to see the changes sooner rather than later.

“I am confident that this is already an excellent piece of work,” she said.

Commissioners also have the opportunity to propose changes to the guidance after its Monday approval, GOP Commissioner Keith Sonderling said.

“Today’s vote is just one step in the process to eventually publish this document,” he said. “Once the public comment period closes, it is our duty to review and address every single comment before we vote on the guidance’s final approval—including those of fellow Commissioners.”

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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