Update: Nov. 24, 2020: EEOC published its proposed guidance and on Nov. 23 invited public input. Stakeholders may comment until Dec. 17.

Dive Brief:

• The U.S. Equal Employment Opportunity Commission (EEOC) will seek public comment on a proposed update to its religious discrimination guidance, it said Nov. 9. The proposal first requires Office of Management and Budget (OMB) review and then will be opened to public comment.
• EEOC's current guidance, last updated in 2008, "does not reflect recent legal developments and emerging issues" that have altered the legal landscape, the agency said.
• The revisions include updates to employee protections from religious discrimination in the areas of reasonable accommodations and harassment and defenses that may be available to religious employers, EEOC said.

Dive Insight:

The update is expected to take into account the U.S. Supreme Court's 2014 decision in Burwell v. Hobby Lobby Stores Inc., as well as the 2015 outcome of EEOC v. Abercrombie & Fitch, according to Bloomberg Law.

In Hobby Lobby, the U.S. Supreme Court ruled 5-4 in favor of nationwide retailer Hobby Lobby. The High Court upheld an appeals court ruling finding that Hobby Lobby did not need comply an Affordable Care Act regulation requiring employers to provide coverage for birth control under a health plan.

In Abercrombie, the nation’s top court ruled that to prevail in a disparate treatment claim under Title VII of the Civil Rights Act of 1964, a plaintiff only needed to show that the need for an accommodation was a motivating factor in the employer’s decision, not that the employer actually knew of the need, according to SCOTUSblog. The ruling stemmed from an Abercrombie & Fitch applicant's claim that she was rejected because she wore a headscarf.

At press time, the guidance was marked "pending review" on OMB's website.