Proposed EEOC Guidance Protects Religious Institution Employers Against Employment Discrimination Claims

December 2, 2020

On Nov. 17, 2020, the Equal Employment Opportunity Commission (EEOC) published its proposed Compliance Manual on Religious Discrimination for public comment. If adopted, the guidance would update the Compliance Manual for the first time since July 2008. The Proposed Manual adopts and expands upon a recent Supreme Court decision that makes it impossible for an employee of a religious institution who is classified as a “minister” to sue the employer for employment discrimination of any kind. This exception to the anti-discrimination laws is referred to as the “Ministerial Exception.”

Prior to the Supreme Court’s recent opinion, the determination of whether a religious institution could avail itself of the Ministerial Exception with respect to a particular employee was based upon an analysis of the following factors: (1) whether the employer held the employee out as a minister by bestowing a formal religious title; (2) whether the employee’s title reflected ministerial substance and training; (3) whether the employee held himself or herself out as a minister; and (4) whether the employee’s job duties included important religious functions. If the employee is deemed to be a minister, the Ministerial Exception applies, and the employee may not sue the employer for employment discrimination.

In Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court expanded the Ministerial Exception by finding that all relevant circumstances must be taken into account to determine whether an employee is to be classified a minister. The Court concluded there that two teachers at the religious schools before the Court were ministers, and therefore the employers were entitled to immunity from discrimination claims, even though the teachers taught secular subjects and lacked substantial religious training.

The EEOC’s proposed guidance would travel the same path and potentially reach even more employees than the Supreme Court has suggested. The guidance states that the Ministerial Exception “is not limited to the head of a religious congregation, leaders, ministers, or members of the clergy, and can apply to ‘lay’ employees and even non-‘co-religionists’ or those not ‘practicing’ the faith.” It cited to a range of appellate and district court opinions in support, in which employees such as musicians, kosher food inspectors and hospital chaplains, were ministers, and as such, the employers were protected from discrimination claims by those employees.

The proposed Compliance Manual would put this analysis at the forefront of future claims before consideration of the merits. The guidance opines that the applicability of the Ministerial Exception “is a threshold issue, which should be resolved at the earliest possible stage before reaching the underlying discrimination claim.”

The EEOC opted to publish its proposal despite objections from two of the five Commissioners. In particular, the two took issue with the guidance’s reliance on lower court opinions, which they noted could be overturned on appeal. The Commission Chair and the two remaining Commissioners voted to move forward with publishing, stating that the guidance is subject to change as public comments are received.

The window for public comment will remain open until Dec. 17, 2020. After that time, the comments will be reviewed, and the guidance may be revised. The proposal notes that any final Manual is “not meant to bind the public in any way,” rather, it would be “intended only to provide clarity to the public.” However, the final Compliance Manual could serve as powerful persuasive evidence for religious employers looking for protection against claims of employment discrimination by their employees.

KJK will continue to monitor the proposed Compliance Manual’s progress. For more information, contact Robert S. Gilmore (rsg@kjk.com; 216.736.7240), Alan M. Rauss (amr@kjk.com; 216.736.7221), or another member of our Employment Law team by calling 216-696-8700.


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