Communication out-of Name VII on the Earliest Amendment and also the Spiritual Independence Fix Work (RFRA)

Opinion: Some commenters expressed concern that the draft did not make sufficiently clear that Title VII protects against discrimination based on a lack of religious faith.

Effect: The Commission has made additions to reference repeatedly that discrimination based on a lack of religious faith is prohibited.

Spiritual Organization Different

Comment: Various commenters took issue with the draft’s statement that it was an “open question” whether a for-profit corporation can constitute a “religious corporation” within the meaning of section 702(a) of Title VII, 42 U.S.C. § 2000e(1)(a).

Response: The final guidance has deleted this language. Instead, the final guidance observes that although courts have historically relied on for-profit status to indicate that an entity is not a “religious corporation” under § 702(a), the plain text of the statute does not reference for-profit and nonprofit status, and that it is possible courts may be more receptive to finding a for-profit corporation can qualify given language from the Supreme Court’s decision in Hobby Lobby.

Comment: Many organizational and Congressional commenters asked for clarification or revision of the proposal’s interpretation of the scope of the statutory exemption permitting employment of individuals “of a particular religion” by religious corporations under § 702(a) Guatemalan naiset etsivГ¤t amerikkalaisia kavereita or religious educational institutions under § 703(e)(2). Some commenters asked the Commission to state that religious organizations are barred from discrimination based on race, color, sex, national origin, or other bases, even if motivated by a religious belief. By contrast, others asked for greater clarity that religious organizations are shielded from such claims by the statutory permission to hire individuals “of a particular religion.” Additionally, some commenters discussed how the Commission should proceed if a respondent entity invokes the religious organization exception.

Response: The final guidance clearly states that religious organizations are subject to the Title VII prohibitions against discrimination on the basis of race, color, sex, national origin (as well as the anti-discrimination provisions of the ADEA, ADA, and GINA), and related retaliation, but are permitted to assert the statutory exemption as an affirmative defense.

This new guidance then cards one to “[c]ourts have kept your spiritual organization’s denial your challenged a career choice was developed on such basis as religion are subject in order to an effective pretext inquiry, where staff member has got the load to prove pretext.” The brand new pointers covers an incident in which the court receive in the event your spiritual team demonstrated “‘persuading evidence’ your confronted work practice lead away from discrimination for the the foundation regarding religion,” then the religious business exception “deprives this new EEOC out-of legislation to investigate then to decide whether or not the new spiritual discrimination was a good pretext for the majority other style of discrimination.”

Ministerial Exception

Comment: Some commenters objected to the nature or extent of the Commission’s treatment of the ministerial exception. Others discussed the draft’s handling of procedural matters relating to adjudication of the ministerial exception when asserted as a defense.

Response: The final guidance has streamlined the discussion of the ministerial exception and has clarified how the Commission will procedurally address assertions of the defense.

Comment: Numerous commenters asked the Commission to delete or modify references to RFRA as a potential defense to Title VII enforcement by the government. Some noted the holdings in particular Title VII decisions addressing RFRA defenses, and cited RFRA’s legislative history stating it was not intended to modify Title VII.

Response: The final guidance refines treatment of the cited authorities in this section, including explanations of the outcome in cases in which RFRA was raised as a defense to EEO enforcement.

Comment: The National Federation of Independent Business recommended insertion of language guiding EEOC staff to confer with the EEOC Office of Legal Counsel, which may as needed consult with the Department of Justice’s Office of Legal Counsel, when matters raise the interaction of the First Amendment or RFRA with statutes enforced by the EEOC.