Nemeth Bonnette Brouwer Employment Blog

The revised Compliance Manual includes updates on what may constitute reasonable accommodations for religious beliefs or practices and the religious organization and ministerial exemption defenses available to religious employers, and also provides several narrative examples.

The previous version of the Compliance Manual was issued in 2008, and according to the EEOC, several decisions from the Supreme Court and lower courts “have altered the legal landscape” causing the guidance to “not reflect recent legal developments and emerging issues.”

Reasonable Accommodations and Undue Hardship

Under Title VII employers, are required to make reasonable accommodations for an employee’s sincerely held religious beliefs or practices, as long as the accommodations do not pose an undue hardship on the employer. The updated guidance lists the most common methods of religious accommodation in the workplace as: (1) flexible scheduling; (2) voluntary substitutes or swaps of shifts and assignments; (3) lateral transfers or changes in job assignment; and (4) modifying workplace practices, policies, or procedures.

“Undue hardship” under Title VII is not defined in the statute but has been defined by the Supreme Court as “more than a de minimis cost.” This is a lower standard for employers to satisfy than the “undue hardship” defense under the Americans with Disabilities Act, which is defined by statute as “significant difficulty or expense.”

To determine undue hardship, the updated guidance says that factors to be considered include “the identifiable cost in relation to the size and operating costs of the employer, and the number of individuals who will in fact need a particular accommodation.”

The guidance also notes that courts have found undue hardship where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

Ultimately the updated guidance reinforces the importance of employers engaging in an interactive dialogue with employees for purposes of providing reasonable accommodations.

Religious Organization and Ministerial Exemptions

Under Title VII, religious organizations whose “purpose and character are primarily religious” are permitted to hire and employ individuals “of a particular religion.” As a defense to a Title VII claim of discrimination or retaliation, a qualifying religious organization may assert that it made the challenged employment decision on the basis of religion. According to the updated guidance, where the religious organization exemption is asserted by an employer, the EEOC will consider the facts on a case-by-case basis. No one factor is dispositive in determining if a covered entity is a religious organization under the exemption.

Importantly, a for-profit entity was previously excluded from the exemption under Title VII. Now, the updated guidance has noted “it is possible courts may be more receptive to finding a for-profit corporation can qualify” for the exemption.

Another exemption, the “ministerial exemption” was established by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), which held that the First Amendment safeguards the right of a religious organization, free from interference from civil authorities, to select those who will “personify its beliefs,” “shape its own faith and mission,” or “minister to the faithful.” The updated guidance makes clear that this defense can apply to discrimination claims against a religious institution involving the selection, supervision, and removal of employees who “play certain key roles.”

Like Title VII’s religious organization exemption, courts have extended the ministerial exception to religious employers beyond churches and other houses of worship. However, unlike the statutory religious organization exemption, the ministerial exception applies regardless of whether the challenged employment decision was for “religious” reasons.

The updated Compliance Manual provides valuable insight into the EEOC’s current enforcement priorities and interpretation of court decisions surrounding Title VII. Although it is just guidance and not equivalent to formal EEOC regulations, employers should be aware of its implications and are encouraged to consult with experienced counsel if questions arise.