New Guidance Shifts Federal Policy on Religious Liberty in Employment

New guidance from Attorney General Jeff Sessions on religious liberty in employment “signals a shift in federal employment law and policy,” according to an attorney who focuses on employment law.

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Sessions issued the new guidance to all administrative agencies and executive departments on October 6. It identifies 20 principles that administrative agencies and executive departments are to use “to ensure the religious freedoms of Americans are lawfully protected,” according to a statement from the U.S. Department of Justice (DOJ).

Steven Massoni, a contributor to Kansas Employment Law Letter and attorney with Foulston Siefkin LLP in Wichita, Kansas, says the new guidance, which purports to expand the religious exemption in Title VII of the Civil Rights Act of 1964, represents a change at the federal level.

However, he says “it remains to be seen” what effect the DOJ’s guidance may have on the Equal Employment Opportunity Commission’s (EEOC) position in cases involving religious liberty in employment. The EEOC interprets and enforces Title VII, which, among other things, prohibits discrimination based on religion.

“This exemption, as currently interpreted by the EEOC, is applicable only to institutions whose ‘purpose and character are primarily religious,’” Massoni says. “Entities that meet this narrow definition are permitted to give preference to members of their own religion.” The DOJ’s guidance suggests that for-profit employers—even those that are not primarily religious—might be able to assert that they were organized for religious purposes, he says.

Massoni says that means an employer might claim that Title VII’s prohibition against sex discrimination should not be permitted to override its belief that hiring an LGBT employee would violate its religious beliefs. “It remains to be seen what effect the DOJ’s guidance may have on the EEOC’s position in such cases,” he says.

Massoni also points out that the guidance mentions the U.S. Supreme Court’s decision in the 2014 Burwell v. Hobby Lobby case. In that case, the Court ruled 5-4 that the craft store chain did not have to offer a full range of contraceptives to its employees under the Affordable Care Act (ACA).

The company argued that the law’s contraceptive mandate forced its owners to either violate their religious principles or pay stiff fines. The Court held that such a closely held corporation should be exempt from the mandate because of the Religious Freedom Restoration Act (RFRA).

Massoni says the DOJ is using the Hobby Lobby case to expand the reach of the religious employer exemption, but the case didn’t arise in the context of employment discrimination under Title VII. Instead, the Court limited the ruling’s effect to the ACA’s contraceptive mandate.