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Meeting of November 9, 2020 - Discussion of an Update to the Compliance Manual Section on Religious Discrimination - Transcript






ANDREA R. LUCAS Commissioner




SHARON F. GUSTAFSON General Counsel  

ANDREW F. MAUNZ Legal Counsel

BERNADETTE B. WILSON Executive Officer



This transcript was produced from audio provided by the Equal Employment Opportunity Commission.



Discussion of an Update to the Compliance Manual Section on Religious Discrimination



(1:00 p.m.)

CHAIR DHILLON:  Good afternoon everyone, and welcome to a meeting of the Equal Employment Opportunity Commission.  The meeting will now come to order.  A quorum is present.  This meeting was noticed and is being held in accordance with the requirements of the Sunshine Act.  Today's meeting is open to the public to listen to the Commission's deliberations and voting.

Welcome and thank you to my fellow Commissioners, to all EEOC staff, and members of the public who are participating by phone.  To access our closed captioning service, please go to and click on the link.  This marks the EEOC's six virtual Commission meeting and the second meeting with our current Commission.

Thank you to all the EEOC employees who  have worked diligently to prepare for the meeting, including my staff, the staff of my fellow Commissioners, the Office of Legal Counsel, the Office of Information Technology, the Office of Communications and Legislative Affairs, the Office of the General Counsel, and the Executive Secretariat.  These virtual meetings are a testament to our continued commitment to the EEOC's mission.

The EEOC is cognizant of the need for COVID-19-related guidance to address novel issues facing both employers and employees, and we continue to periodically update our technical assistance on COVID-19 and its implications on federal employment discrimination laws.  If you have not done so, I encourage you to take a look at the "What You Should Know About COVID-19 and the ADA, The Rehabilitation Act, and Other EEO Laws," which are available on our website at

Before we begin deliberations, I'd like to briefly explain the procedures for today's meeting.  A verbatim transcript will be made of today's proceedings.  For that purpose, the meeting is being recorded.  We will post transcripts on the EEOC's website,  As the presiding officer, I will regulate the course of the meeting and dispose of procedural matters.

While this meeting is open to the public, remarks and questions will not be taken from the audience.  The purpose of today's meeting is to deliberate and vote on an update to the Compliance Manual section on religious discrimination.  Our Legal Counsel, Andrew Maunz, will provide a summary of the items and be available to answer the Commissioners' questions.  Each Commissioner will then have five minutes to give an opening statement if they choose.

Following the opening statements, I will call on each Commissioner to address the matter at hand.  We will have two rounds of comments and questions from each Commissioner.  During these rounds, Commissioners may pose questions to the presenter and offer his or her own comments and observations.  If a Commissioner seeks to amend an agenda item, he or she must offer that amendment while he or she has the floor.  If the motion to amend is seconded, we will move to a debate on the proposed amendment.  After the amendment is voted on, we will resume debate on the underlying agenda item, which may or may not have been amended.

We will now begin our meeting with a presentation from our Legal Counsel, Andrew Maunz.

MR. MAUNZ:  Chair Dhillon, Vice Chair Sonderling, and Commissioners Burrows, Samuels, and Lucas, thank you for the opportunity to participate in today's meeting.  I'm here to discuss a proposed update to the Commission's Compliance Manual on Religious Discrimination.  This section of the Compliance Manual was last updated in 2008.

Religious liberty is one of the foundational principles of our great country.  Protection of religious liberty is not only enshrined in the Constitution but is also a major pillar of Title VII of the Civil Rights Act of 1964, the Commission's primary enforcement statute.

Title VII protects religion in several important ways: first, it protects employees from religious discrimination in the workplace.  In fact, religion under Title VII is the only protected category under the statute that requires an employer to provide a reasonable accommodation unless there is an undue hardship on the employer.  Second, in two different sections, Title VII provides an exemption to religious employers to allow them to still make employment decisions based on religious considerations.  In addition to Title VII's protections, other legal protections, such as the First Amendment and the Religious Freedom Restoration Act, or RFRA, can come into play in cases involving religion.

The Compliance Manual currently before  the Commission provides a much-needed comprehensive update to the document.  There have been several major developments in this area of the law since 2008.  This includes two major Supreme Court decisions on the ministerial exception, Hosanna-Tabor in 2012 and Morrissey-Berru just this year, and another Supreme Court case touching on religious reasonable accommodation issues, Abercrombie & Fitch in 2015.

Also, while the cases do not directly deal with Title VII issues, the Supreme Court has ruled on other issues related to religious liberty, such as RFRA in the Hobby Lobby case, that need to be considered and reflected in this guidance.  In addition to these major Supreme  Court decisions, there have been numerous other developments at the district court and circuit court levels.

The Compliance Manual currently before the Commission makes important updates to reflect  these new developments.  This includes updates to the discussion of protections for employees from religious discrimination and issues concerning reasonable accommodations and harassment.  The updated Compliance Manual also expands the discussion on protections for religious employers, including Title VII's religious organization exceptions, the ministerial exception, other First Amendment considerations, and RFRA.

Also, it's important to note that in proposing this guidance document, the Commission is following all relevant requirements of Executive Order 13891 and the Commission's recently published regulation establishing procedures for the issuance of guidance.  This includes important disclaimer language on the legal effect of the guidance.

In addition, if approved today, the proposed guidance will be sent to the Office of Management and Budget for review, and then the Commission will allow the public to comment before it is finalized.  It is important that the Commission approve this updated Compliance Manual.  Both employers and employees deserve clear and up-to-date guidance from the Commission on the relevant legal requirements for Title VII's protections of religion.

Unfortunately, the 2008 version of the guidance has now become badly out of date.  By approving this proposed guidance, the Commission will be taking the first step to giving all stakeholders a much clearer picture on Title VII and other relevant laws' protections of religion.  I look forward to answering any questions you may have.

CHAIR DHILLON:  Thank you.  We'll now move to the opening statements by the Commissioners.  We will begin with Vice Chair Sonderling, followed by Commissioner Burrows, Commissioner Samuels, Commissioner Lucas, and then myself.  Now I'll turn the floor over to Vice Chair Sonderling.

VICE CHAIR SONDERLING:  Thank you Chair Dhillon.

Religion and religious worship are central to the lives of millions of Americans.  Today we meet to discuss guidance on religious discrimination in the workplace.  This is fitting.  Protecting religious freedom is in our national DNA.  On a personal note, as the grandson of Holocaust survivors who suffered  unspeakable discrimination because of their religion, I have a profound respect for religious freedom.  I am fully committed to protecting the rights of all workers to be free from religious discrimination in the workplace.

The religion guidance at issue is designed to be a practical resource for employers, employees, practitioners, and the EEOC enforcement staff on Title VII's prohibition against workplace religious discrimination.  The guidance explains a variety of issues applicable to religious discrimination claims, discusses typical scenarios in which religious discrimination may arise, and provides guidance to employers on how to balance the needs of individuals in a diverse workplace.

The EEOC has not updated its religion guidance since 2008.  Accordingly, I believe that it is imperative that we update our guidance.  The law and legal landscape have changed significantly since 2008, including recent United States Supreme Court precedents.  As such, updating this guidance is about good governance.  Additionally, as a civil law enforcement agency, the EEOC must uniformly administer and enforce the most up-to-date legal standards.

I thank and recognize the numerous EEOC staff who spent so much time creating this helpful, thoughtful, and practical resource.  I am eager for the guidance to be released to the public so all stakeholders can review and help us finalize this document.  Once this guidance moves forward, the public will see the outstanding work and effort by the Office of General Counsel, the Office of Legal Counsel, and staff throughout the Agency.

Now I want to stress how important it is for the public to submit comments on all guidance the Commission issues.  During my time at the US Department of Labor, I saw firsthand the incredible value of public comments.  The comments we received often provided invaluable insights that could only be offered by those outside of the initial drafting process.  I look forward to hearing from the public, and we welcome the public's input.  In my opinion, that is why we are here today: to take a procedural vote to allow the public to review and comment on our work thus far.

To the extent my fellow Commissioners have any concerns about the content of the guidance, I want to be clear.  My vote today to move this document forward should not be construed as ignoring or minimizing those concerns.  Your insights are valued and important.  My fellow Commissioners should and will have the ability to comment on and address the guidance during the comment period as well.

Today's vote is just one step in the process to eventually publish this document.  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.

I understand the Agency has been drafting and deliberating on this document for a significant amount of time prior to the new Commissioners' arrival.  I believe, and my vote will reflect, that it is time the public participate in this process so we can address all comments together, positive or negative, and eventually finalize the document.  This Agency has not refreshed this guidance in more than a decade.  It is our responsibility to move this process forward.

In closing, the EEOC will continue to ensure that religious freedom remains protected.  This guidance will help us accomplish this important mission.  Thank you.

CHAIR DHILLON:  Thank you Vice Chair Sonderling.  I now turn the floor over to Commissioner Burrows for an opening statement.

COMMISSIONER BURROWS:  Thank you Madam Chair.  Good afternoon.  The right of every American to practice his or her own religion or no religion at all is fundamental.  I am deeply committed to protecting against religious discrimination as both a constitutional principle and a core civil right.  This Commission has a long record of vigorously enforcing laws protecting against religious discrimination in the workplace.

Charges alleging religious discrimination make up just a tiny fraction of the overall charges filed with the Commission, around four percent each year.  Yet despite the small number of religious discrimination charges, this Commission has a substantial role in combating religious discrimination in employment.  Over the past five years alone, the Commission recovered more than 51 million dollars for victims of religious discrimination  through pre-suit settlements and conciliation, and almost 10 million dollars through litigation.

The Commission has pursued important systemic cases, as in our nationwide religious accommodation suit against the United Parcel Service resulting in a 4.9-million-dollar consent decree.  The class included over 100 individuals from diverse faith traditions, including Muslims, Sikhs, Orthodox Jews, Orthodox Christians, Rastafarians, and individuals with nontraditional spiritual beliefs.

The EEOC has also devoted considerable resources to religious discrimination cases involving only a single individual.  The Commission won, for instance, a nearly $600,000 verdict for an evangelical Christian who requested a religious exemption from his employer's biometric hand-scanning system.  We successfully defended that jury verdict on appeal.  And the EEOC also fought all the way to the Supreme Court and won a resounding eight-to-one victory on behalf of Samantha Elauf, a young woman denied a job by Abercrombie & Fitch solely because she wore a hijab as part of her Muslim faith.  The EEOC has also issued valuable guidance and technical documents, and our district offices have participated in numerous outreach events to combat religious discrimination.  I, too, have participated in and helped organize such events.

The updated guidance we consider today is an important opportunity to continue EEOC's strong tradition of protecting working men and women from religious discrimination.  The Commission's existing religious discrimination guidance was approved unanimously in 2008 after an initial agenda vote prompted further discussion.  It would send a powerful message if this Commission could also adopt the updated religious discrimination guidance unanimously.  To that end, I view today's meeting as the beginning of a dialogue and look forward to hearing my colleagues'  thoughts on this vitally important topic.  The Commission has an important tradition of bipartisan deliberation and collaboration, which has only enhanced our reputation and credibility and allowed our decisions to benefit from the best thinking of every member.  I strongly believe that this Commission does its best work when all views are heard and we can engage in debates.

I appreciate very much Chair Dhillon's calling this meeting, and I thank all of those who worked to put it together.  I look forward to this process as we begin our discussion.  Thank you, and I yield back the balance of my time.

CHAIR DHILLON:  Thank you Commissioner Burrows.

Commissioner Samuels, I turn the floor over to you.

COMMISSIONER SAMUELS:  Thank you so much Chair Dhillon, and good afternoon to my fellow Commissioners and to all of you who are listening in on this conversation.  The issues before us today could not be more important.  Every member of this body, and I am sure every one of the Commission's roughly 2,000 career employees, cherishes our First Amendment freedoms.  The guarantee of religious freedom is woven into the fabric of our founding documents and our democracy itself.

Since the adoption of the Fifth and Fourteenth Amendments, we've been called to safeguard and harmonize the complementary principles of religious freedom and equal treatment under the law.  Too often, these core American principles are perceived to be in tension with each other.  I reject that assumption and believe that in many cases, there is no conflict whatsoever.  But where there are tensions, our laws provide mechanisms to address and ameliorate them.

Title VII balances freedom of religious belief  and expression in the workplace and the freedom from religious-based discrimination against others, as well as the rights of religious employers and the rights of employees of different faiths and no faith.  For example, religious organizations under the law may prefer co-religionists.  But the law also carefully evaluates which employers are religious institutions, and authorizes only preferences for co-religionists.  It does not shield any other form of discrimination from challenge.

The Constitution requires a ministerial exception to preserve a religious institution's freedom to choose those whose duties are vital to its mission.  But the courts have made a deliberative inquiry into the facts of particular cases to ensure that the exception, which may deprive certain employees of civil rights they would otherwise enjoy, is appropriately applied.  Employers must accommodate employees' religious beliefs and practices, but only where the accommodation would not impose more than a de minimis burden.

To my mind, the Commission's role is to faithfully balance the interests of safeguarding  religious freedom and preserving other critical civil rights, to recognize, in brief, that religious expression deserves protection and that there must be appropriate consideration of the otherwise unlawful harms to third parties that can be caused by that expression.

Over the decades, the Commission has in good faith tried to strike that balance.  Indeed, as Commissioner Burrows just noted, career staff of the Commission has, through outreach, education, investigation, and litigation, robustly protected religious freedom and the right to be free from discrimination based on religion.  And we must continue to get that balance right.  All those who rely on our expertise are entitled to our very best critical thinking, even in a draft document open for public comment in this evolving, complex, and crucial area of the law.

In my initial review of the guidance, I identified some areas in which I have concerns about that balance, as well as areas where I think the analysis could be clarified to enhance  accuracy or to eliminate confusion.  I will highlight some of those in our subsequent rounds today.  Also of the utmost importance to me is the spirit in which we work to improve this document.  I truly hope and believe that all of the members of this Commission can come together in a collaborative and respectful, bipartisan way to resolve any issues that divide us.

As we move forward on this document and other matters that come up before us, I look forward to working with my colleagues to deliver the very best advice, guidance, and enforcement we can collectively provide, reaching consensus where we can, and proceeding with transparency and mutual respect where we cannot.  The American people deserve no less.  Thank you.

CHAIR DHILLON:  Thank you Commissioner Samuels.

Commissioner Lucas?

COMMISSIONER LUCAS:  Thank you Chair Dhillon.  Good afternoon.  I recognize and respect that some of my colleagues may have concerns about the current composition of the Commission, including new members like myself not having yet had the opportunity to weigh in with our own edits and comments on the latest version of this document.  However, for three reasons, I'm not persuaded that any such concerns warrant delaying moving this proposed Compliance Manual section to public comment.

First, although I only recently joined the Commission and therefore have not been yet involved in the drafting of this document, I am confident that this is already an excellent piece of work.  Many key stakeholders already have been either involved in drafting this document or have had the opportunity to provide comments and edits on it, including attorneys in the Department of Justice, the EEOC's Office of Legal Counsel and Office of General Counsel, as well as a bipartisan group of three members of the Commission this summer, including two members who are still present on the Commission, Chair Dhillon and Commissioner Burrows.

Second, while I am sure that I, like the other new members of the Commission, will have additional comments and edits on this document in the future, I am but one of many stakeholders who deserve the opportunity to comment on this document.  There will be a period for public comment, and I welcome many useful comments from external stakeholders that I'm sure we will receive during this period, comments which will be taken seriously and carefully considered in addition to any comments and edits I may have regarding this document.  The public deserves to see and comment on this document sooner rather than later.

Further to that point, third, further delay is unacceptable because this is already an extremely overdue update of guidance that addresses a critically important and, frankly, overlooked subject matter.  This section of the Compliance Manual, as our Legal Counsel noted, has not been updated for over 12 years.  In the interim, major Supreme Court cases have been issued, not only decisions that directly address religious discrimination but also decisions that establish rights for other protected characteristics which sometimes may come in conflict with religious employees' rights.

Employees and employers deserve to have clear guidance that helps them understand their rights as established by current Supreme Court precedent, as well as help them navigate the difficult task of balancing rights of protected groups that are sometimes in tension with one another.

There have been recent calls for unity in the wake of the election, and those are very appropriate and good.  The unity cannot come at the expense of diversity.  We must find a way to be unified despite strongly held disagreements, not unified through uniformity.  We live in a pluralistic society, and that is one of America's strengths, that out of many people with many diverse backgrounds, experiences, and beliefs, we nonetheless are one country.  And likewise, the EEOC is charged with protecting employees from discrimination on many bases, all of which must be taken equally seriously.

In the absence of clear, up-to-date guidance on religious discrimination, however, I fear that we risk that the Commission will be hindered in protecting employees on these bases as fully as it ought to and that is a serious problem.  As I stated last week's Commission meeting, it is unquestionable that religious liberty consistently has been recognized as a critically important and fundamental principle of our democratic republic, from the Declaration of Independence and First Amendment to newer civil rights laws extending the protections to the private sphere, not least of which is Title VII.

It is fair to acknowledge that the EEOC is not charged with directly upholding the constitutional right to free exercise of religion under the First Amendment, but rather protecting against private discrimination in employment under Title  VII.  Nonetheless, I view our task as critically connected to ensuring that constitutional rights are not effectively gutted.  I believe that the fastest way to suppress religious believers' ability to live out their faith in the workplace and to participate fully in society, the fastest way to encourage people to either discard their beliefs or retreat to isolated silos like the Amish, with all due respect to the Amish, is to condition people's livelihoods on hiding, denying, or failing to live out their religious beliefs in the workplace.

As a practical matter, what good would it be to many people of faith if the government does not infringe on the right to free exercise  if freely exercising their faith means that they cannot pursue their career of choice, or worse still, cannot hold a job, cannot feed their family, because of the policies and actions of private employers?

Coming recently from the private sector with significant experience counseling large corporate employers, I am very concerned that certain types of religious discrimination are widespread and deemed socially acceptable, perhaps even socially desirable in much of corporate America.  In the best cases, such discrimination is unthinking and inadvertent, a result of well-meaning employers zealously promoting anti-discrimination and anti-harassment policies for the benefit of employees with certain protected characteristics, without considering how to balance the rights of their religious employees.

In the worst cases, employers intentionally are preferencing and promoting the majority position taken by our culture on certain topics and intentionally seeking to suppress minority views, including those of employees of any faith who hold religiously orthodox views on certain topics.  Either way, religious discrimination is always and completely unacceptable.  I hope that the Commission moving forward with all deliberate speed on the updated  Compliance Manual will send a clear message to that effect.

CHAIR DHILLON:  Thank you Commissioner Lucas.

The work on the update to the religious discrimination portion of the Compliance Manual was launched last year after I was sworn in as Chair.  This project is a high priority for me for a number of reasons.  As others have noted, the current religious discrimination section was approved in 2008, and thus it is badly out of date.  It does not reflect, for example, decisions by the Supreme Court that directly impact the work of the Commission.

But updating this section of the Compliance Manual also sends a strong message that the EEOC takes religious discrimination seriously, treats such discrimination as a priority, and is taking tangible actions to address charges and cases that raise religious discrimination and religious freedom issues.  Unfortunately, there is a belief among some stakeholders that the EEOC does not treat cases of religious discrimination with the attention and care they deserve and that such charges and cases are somehow less worthy of EEOC's time and resources.

I believe that this belief threatens to undermine the legitimacy of the EEOC itself and needs to be addressed head on.  Updating the Compliance Manual sends a strong message to victims of religious discrimination  that the EEOC stands with them.  It also puts employers on notice that the EEOC takes this form of discrimination seriously and is prepared to use its resources and prestige to combat it.  It also reminds EEOC employees that the Commission cares about this form of discrimination and that charges involving religious discrimination are not less worthy of their time and attention.

I would also note that getting to the point where we are today has been a significant effort.  The draft went through an internal review process, and changes were made based on feedback from our program offices.  Attorneys in the Office of Legal Counsel and the Office of General Counsel, including the General Counsel herself, have worked together to draft the proposed updates.  This draft was thoroughly vetted by attorneys at the Department of Justice, and DOJ's input is reflected in the proposed draft.

Furthermore, in the event that the Commission approves this update today, it will be subject to the notice and comment period.  And with that, I offer the floor to Vice Chair Sonderling to commence the first round of comments and questions.

VICE CHAIR SONDERLING:  As stated in my opening statement, I just -- boy, this is a vote that needs to happen on the procedure to get it to the public, and I do not have any questions right now.

CHAIR DHILLON:  Thank you Vice Chair  Sonderling.  I'll turn the floor over to Commissioner Burrows.

COMMISSIONER BURROWS:  Thank you.  I'd like to talk a bit about the process leading up to today's meeting because in my view, process is critical to good government and a good result.  And just to correct the record, in response to something that Commissioner Lucas said, although there was a great deal of process, my office was not able to weigh in on the document.  Typically, the Commission considers guidance on a topic.  Drafts are circulated among the Commissioners for a period of at least 30 days, sometimes longer.  And then the Commissioners have sufficient time to review the document, ask questions, provide comments, and vote on a draft for public comment that reflects the insights and expertise of the entire Commission.

At a 2006 Commission meeting on race and color discrimination, the Office of Legal Counsel explained that Compliance Manual sections should be, quote, comprehensive yet reasonably concise, legally accurate yet useful to lawyers and non-lawyers alike, a resource for EEOC staff yet valuable to employees, employers, and other members of the public, forward-leaning and forceful yet measured in tone, built from the successes of the past yet reflective of current-day issues in the modern workplace, and last but certainly not least, something that would attract and hold bipartisan consensus.

The race and color discrimination guidance was unanimously approved by the Commission after months of extensive work and collective effort.  In introducing the guidance to the public, the Office of Legal Counsel noted that it was a truly collaborative effort involving not only Agency staff, but the Chairs, the Commissioners, and their staff.  Unfortunately, the document we consider today is not the product of bipartisan collaboration.

The proposed religious discrimination guidance was drafted and circulated to the Commission for review before a majority of the current Commissioners joined this body.  My office painstakingly reviewed an earlier version of the document and prepared comments and proposed edits to share with our colleagues, but that version was substantially rewritten without notice to or input from my office and only provided to the full Commission on Friday, October 23rd, with a final vote scheduled for Thursday, October 29th.  This gave my office and each of the newly confirmed  Commissioners a mere five working days to review and vote on the revised draft.

That time frame would have been aggressive under any circumstances, but it's particularly so here.  This draft exceeds 100 pages, containing over 300 footnotes, and cites hundreds of cases.  The subject matter is particularly complex, involving not only the scope and interpretation of Title VII but its interplay with the First Amendment and evolving areas of the law.  The draft also appears to embrace novel legal theories that are currently the subject of litigation in federal court.

While the Commission is free to offer its own view of the law before that law is settled, we have a duty to carefully consider and discuss the implications of our proposals.  That simply cannot be accomplished in five days or in this 30-minute public meeting -- I'm sorry, 90-minute, I hope.  What we can do, however, is agree on a reasonable process for completing the document going forward.  Religious discrimination is a vitally important topic and merits the same attention, thoroughness, and rigor we have devoted to other subjects of Commission guidance.

For instance, as far as I can identify, in recent decades we have held a hearing to receive testimony from a wide range of stakeholders before issuing any Commission guidance.  Given that this is the first update to religion guidance in over a decade, we would benefit greatly from doing so now.  We've held meetings for workplace harassment, retaliation, national origin discrimination, race and color discrimination, amendments to the Americans With Disabilities Act -- I could go on and on.

The importance of this issue would be best reflected if we also held hearings on religious discrimination.  So I would urge that for the Chair's consideration.  We should also ensure that our guidance documents are analytically sound, thoughtfully reasoned, and helpful to the public, particularly on issues as important as religious discrimination and religious liberty, with compelling governmental interest in eradicating employment discrimination.

There is no principled reason to rush this process, and instead we should take the time needed to get it right.  I look forward to doing that with my colleagues over the coming weeks.  I will not be able to vote for this today, but I wanted to make it clear that that vote reflects process but not substance because I very much want to have the kind of conversations with my colleagues that are necessary for me to reach a final view on the substance.  I yield back.  Thank you.

CHAIR DHILLON:  Thank you Commissioner Burrows.

I'll offer the floor to Commissioner Samuels.

COMMISSIONER SAMUELS:  Thank you again Chair Dhillon.  As Commissioner Burrows has now explained, we were offered only five days to review an exceedingly complex and important document where getting it right is really critical both in legal terms and in fulfilling our responsibility to provide the very best advice and input to employees and employers that we can.

I effectively did not have adequate time to do the job I would like to do as a Commissioner in that five-day period.  And I very much appreciate Vice Chair Sonderling's and  Commissioner Lucas's assurance that the voices of Commissioners can be heard during the public comment period, but I think we owe it to the public to make sure that this is the very best reasoned and rounded document it can be.

But as I mentioned, even on an initial review of the draft, I identified a number of both technical and substantive concerns with the guidance as currently written.  As a general matter, for example, the guidance must be prudent insofar as it cites cases interpreting statutes other than the ones we enforce.  It should acknowledge forthrightly, for instance, that those cases may provide relevant reasoning but are not dispositive with regard to the employment discrimination laws.

For example, while Hobby Lobby indicates that some closely held for-profit companies can make RFRA claims, nothing in Hobby Lobby overturns the decades of Title VII case law that gives way to an employer's nonprofit status in finding that it is entitled to the exemption for religious institutions.  Along the same lines, the guidance must present a balanced analysis of the case law that does interpret our statutes.  It should explain where and why we rely on the cases we do, particularly where there is contrary or scant authority on the relevant point.

Moreover, the draft guidance cites to what I believe is an exceptional number of unpublished or district court cases in areas of the law that are very much evolving.  Some of these decisions may or may not hold up under subsequent scrutiny and the crucible of additional litigation.

In addition, the guidance must be very clear as to how EEOC investigators should respond when confronted with complex or novel claims or defenses.  Indeed, in areas like the scope of RFRA and the First Amendment, numerous courts and constitutional experts disagree on how to apply the standards.  We owe it to our staff to be explicit on their role and approach when these issues arise.

There are also numerous specific areas where I believe the guidance should be clarified.  For example, it should consistently make clear that discrimination is prohibited based on a person's lack of religious beliefs as well as on the existence of religious beliefs.  The guidance should ensure that it appropriately interprets the scope of exemptions from coverage, recognizing that exemptions generally must be carefully construed and giving due consideration to the fact that every exemption can deprive an individual of civil rights they would otherwise receive.

In evaluating whether allowing religious expression would impose an undue hardship, the guidance should make clear that the  expression does not need to rise to the level of unlawful harassment in order for the employer to be able to show that permitting it creates an undue hardship.  We've consistently advised that employers should stop harassing conduct before it becomes unlawful, and that standard should apply here as well.

The guidance should also explicate how  a victim of religious harassment may satisfy a showing that the objectionable conduct was unwelcome.  In many cases, a victim should not need proof that they made a contemporaneous complaint or objection directly to the harasser.  Some harassing conduct, for example particularly odious epithets, are so egregious that it would be fair for a fact-finder to presume that the conduct at issue was unwelcome.

There are other areas on which I really look forward to public comment on the document, and I yield back the balance of my time.

CHAIR DHILLON:  Thank you Commissioner Samuels.

Now I'll offer the floor to Commissioner Lucas.

COMMISSIONER LUCAS:  Thank you.  Again, as I said in my opening, I welcome Commissioner Burrows' and Commissioner Samuels' and all members of the panel's further comments on this guidance.  But, ultimately, I think that we're all going to be taking a close and careful look at this as we get public comments, and I don't think that's a reason to further delay things.

And in terms of whether or not any members of the Commission had a chance to seriously consider the bulk of this document, I did take a careful look at the redline between what was previously circulated for a 30-day briefing period and what was subsequently circulated, and I felt comfortable that the vast bulk of the document remains the same and that -- so that did weigh in on my consideration here.  But, regardless, I think it's important to just move forward at this point.  I yield the floor.

CHAIR DHILLON:  Thank you Commissioner Lucas.  I don't have any comments to offer during this round, so we will move to our second round of comments and questions.

I offer the floor to Vice Chair Sonderling.

VICE CHAIR SONDERLING:  I have no additional comments.  Thank you.  I yield my time.

CHAIR DHILLON:  Thank you.

Commissioner Burrows, I offer the floor to you.

COMMISSIONER BURROWS:  Thank you Madam Chair.  In my view, it's probably not possible to delve too deeply into the substance of the document now, given the time constraints that we currently have.  I will highlight, however, some big-picture issues for further discussion internally and, if the draft is approved by the Commission today, for public input.

First, we can strengthen some of the legal authorities in the document by replacing, as Commissioner Samuels mentioned, citations to unpublished cases or district court cases, with citations to appellate or Supreme Court cases.  While I recognize that our sub-regulatory guidance lacks the weight of a formal regulation, it's nevertheless important that our guidance rests on a solid legal foundation.  District court cases and unpublished decisions lack precedential value and do not offer stability in the law.  As a result, the legal landscape underpinning this draft could shift and totally weaken its persuasive value.  Our guidance should last for years to come rather than quickly falling out of step with the law.  I therefore hope we can strengthen the legal support for the guidance before it's finalized.

Second, we should review carefully the guidance's reliance on novel legal theories outside this Commission's expertise, including theories involving the First Amendment, Religious Freedom Restoration Act, and other non-Title VII issues.  The Commission has the authority to advance its own legal interpretation, even where the courts have not yet spoken or when some have taken a contrary view.

But when we do so and embrace novel legal theories, we must ensure that those theories are carefully considered and well-reasoned.  In my view, our guidance should do so very rarely and only after the issues have been developed in our investigations and our litigation.  Given the relatively short period the full Commission had to review this guidance document, I hope we can continue discussion so that we meet our obligation to ensure that it's as useful as possible.

Third, I'm concerned about the draft's expansive view of certain exceptions to Title VII coverage for religious organizations.  Religious liberty must be carefully balanced with enforcement of our civil rights laws, and I believe those issues could benefit from further discussion amongst the Commissioners.

I also hope the final guidance will clarify the distinction between hostile work environment standard on the one hand and the undue hardship standard for religious accommodations when discussing religious expression in the workplace.

On a final note, I was disappointed that the Agency could not reach a bipartisan agreement last week on our interagency memorandum of law -- a memorandum of understanding, rather, with the Departments of Justice and Labor.  I firmly believe that with sufficient time we would have reached consensus on that document, and today we find ourselves again in a situation where time pressure has prevented bipartisan discussion and collaboration.

I'm hopeful that there will be adequate time before the next vote for the Commissioners to have detailed one-on-one meetings about these issues, as has been our long-standing practice, and that the Commission can put forth a strong final product on a bipartisan basis.  Again, the existing guidance was adopted unanimously although it did not start that way, and it's my hope and expectation that we should be able to do the same with this new document, which, as everyone seems to agree, is so important to update that guidance.

Thank you, and I reserve my remaining time for rebuttal.  Thank you.

CHAIR DHILLON:  Thank you Commissioner Burrows.

Commissioner Samuels, I offer the floor to you.

COMMISSIONER SAMUELS:  Thank you.  Because the process by which this guidance was prepared and provided to me gave me inadequate time for appropriate consideration of all of the complex issues it raises, and because I think that I owe the public in my role as a Commissioner the very best judgment that I can exercise and can do so only after a 30-day briefing period, I cannot support issuance of this guidance at this time.

However, I do recognize that the document will in all likelihood be approved for release today.  And as a result, I'd encourage members of the public to carefully review the draft and provide comments that address areas of agreement and of concern.  The public's input will be critical in ensuring that we have the most informed sense about how issues of religious discrimination play out on the ground, about areas where the Commission can provide helpful guidance, and about the proper application of legal standards in this evolving area of law.

Specifically, I would value stakeholder input on the issues I've raised in this meeting.  In addition, among other areas on which I think public comment would be particularly instructive are the following.  First, in the draft document, has the Commission gotten the balance right between religious liberty and other civil rights?  Is it accurately capturing the weight of evolving case law, including on issues of coverage and exemption from Title VII, the standards for evaluating when a hostile environment has been created, and the scope of an employer's accommodation obligations?

Does the guidance as currently drafted adequately anticipate and address harms that may  flow from the curtailment of civil rights for certain populations?  Does it adequately protect, for example, the rights of LGBTQ+ employees, women, and religious minorities?  If not, how should it be altered to sufficiently account for those concerns?  What is the relevance and proper application of RFRA, if any, to the Commission's work?  How should it be applied in the employment discrimination context generally?  What are we to make of the provision in the House report on RFRA that says, nothing in this bill -- that is RFRA  -- shall be construed as affecting Title VII of the Civil Rights Act of 1964?

How should the guidance address the proposition that eradicating employment discrimination perpetrated on any legally protected basis is a compelling government interest?  How will constitutional issues intersect with Title VII requirements when employers are government entities?  How, if at all, should RFRA apply in federal sector complaints?  What is the proper scope of Section 702(a)'s exemption for religious institutions?  How should that exemption be construed when the entity asserting it is a profit-making company?

Are there any open questions on the scope of the BFOQ defense (unintelligible)?  What issues with regard to the ministerial exception did the Supreme Court's ruling in Morrissey-Berru leave open?  How does an employer properly balance permitting religious expression in the workplace with the rights of other employees to be free from proselytizing?  Under what circumstances can religious expression outside the workplace contribute to a hostile environment inside it?

I want to close by taking us back to something the Supreme Court said in 1977 in TWA v. Hardison, which first identified the religious accommodation obligation.  The paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment.  In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their religion.

We need to keep this common-sense-balancing principle front of mind as we proceed to gather, analyze, and incorporate public comments on this document.  I look forward to working with my colleagues and on the work to come.  Thank you to Chair Dhillon for scheduling this meeting, to all of you for giving us this time today, and to the public for weighing in on these critical issues.  Thank you.

CHAIR DHILLON:  Thank you Commissioner Samuels.

Commissioner Lucas, I offer the floor to you.

COMMISSIONER LUCAS:  I have no further comments or questions, so I yield the remainder of my time.

CHAIR DHILLON:  Thank you Commissioner Lucas.

I do not have any further comments or questions, so we'll now move to the vote.  We'll do it by roll call so as to assist our transcriber with the transcript.  So the item before the Commission is to adopt the update to the Compliance Manual section on religious discrimination, which will be sent to OMB and then released for public comment.

Roll call starting with Vice Chair Sonderling.  How do you vote?


CHAIR DHILLON:  Commissioner Burrows?


CHAIR DHILLON:  Commissioner Samuels?


CHAIR DHILLON:  Commissioner Lucas?


CHAIR DHILLON:  And I vote yes.  The matter carries.  I would like to thank the Office of Legal Counsel, the Office of General Counsel, as well as the Vice Chair and the Commissioners for your thoughtful comments and remarks here today, and to thank the members of the public who were able to join us.  And with that, this meeting is adjourned.

(Whereupon, the above-entitled matter went off the record.)