Ways in which Compliance Manual Section 604, Theories of Discrimination 604 is Outdated

EEOC Compliance Manual Section 604 contains sections that are obsolete, discusses concepts that are explained comprehensively in more recent guidance, and refers to Commission Decisions that generally are no longer used in guidance or litigation.

Section 604’s primary focus is on disparate treatment and disparate impact.  These legal concepts are discussed in more recent guidance in the context of specific bases, which are more helpful in that they focus on how to analyze claims that arise under the basis addressed in the guidance.  For example, disparate treatment and disparate impact are discussed generally in:  EEOC Compliance Manual Sec. 15, Race and Color Discrimination, at part V, “Evaluating Employment Decisions” (Apr. 19, 2006);  Enforcement Guidance on National Origin Discrimination, at part II (Nov. 18, 2016); and Enforcement Guidance on Unlawful Disparate Treatment of Workers with Caregiving Responsibilities (May 23, 2007).

In addition, Compliance Manual, Section 15, Race and Color Discrimination and Enforcement Guidance on National Origin Discrimination contain a more current discussion of motivating factor (i.e., mixed motive) causation standards.  The discussion in these two guidance documents displaces the analysis of direct versus circumstantial evidence in Section 604.3 of the rescinded document, which did not account for the Supreme Court’s interpretation in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), of the 1991 Civil Rights Act amendments that explicitly allowed for motivating factor causation under Title VII in 42 U.S.C. 2000e-2(m).  Section 604.3 also did not account for other cases that restricted motivating factor to Title VII substantive bases of discrimination, such as Univ. of Tx SW Med Ctr. v. Nassar, 570 U.S. 338 (2013) (disallowing motivating factor in retaliation claims).

Section 604.8(a), in its discussion of the defense available for “bona fide” seniority systems under Title VII, requires that such systems were in place prior to the issuance of Title VII.  Courts have since applied the bona fide seniority defense to claims involving general policies and programs that arose after the creation of Title VII, so long as those programs were not adopted with discriminatory intent. 

Section 604.9 also explains coverage for a “handicapped individual” under the Rehabilitation Act of 1973.  This predates the passage of the ADA and application of ADA standards to the Rehabilitation Act, and therefore EEOC’s pantheon of ADA guidance is a better resource on the requirements for coverage under the ADA/Rehabilitation Act.  To highlight one example, 604.9 briefly addresses rules with respect to an individual’s use or addiction to drugs or alcohol.  This topic is more clearly discussed in EEOC Revised Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (ADA) (Oct. 17, 2002); Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000); Enforcement Guidance on the ADA and Psychiatric Disabilities (Mar. 25, 1997); and Enforcement Guidance on Preemployment Disability-Related Questions and Medical Examinations (Oct 10, 1995).

Section 604.10 addresses defenses to Title VII liability.  Its discussion of the exception for religious educational institutions requires the EEOC investigator to ask a number of questions that may not actually determine whether an institution fits within the exception.  It also improperly limits the exception to educational institutions, as opposed to religious organizations generally, and does not address the ministerial exception to coverage that arose in the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (Jan. 11, 2012).  The ministerial exception and coverage for religious organizations is discussed in EEOC Compliance Manual, Section 12, Religious Discrimination (July 22, 2008), and also is mentioned in Compliance Manual, Section 2, Threshold Issues (rev. Aug 2009). 

Topics in Compliance Manual Sec. 604, Theories of Discrimination that are addressed more thoroughly in later guidance documents:

Section 604.9 very briefly explains how to handle religious accommodation claims.  While not incorrect, a more robust discussion exists in EEOC Compliance Manual, Section 12, Religious Discrimination (July 22, 2008).  

Section 604.10 addresses the Title VII Indian Preference.  A more detailed discussion of the preference can be found in EEOC Policy Statement on Indian Preference Under Title VII (May 16, 1988).  Section 604.10 suggests, contrary to our more recent Policy Statement, that the preference only applies to hiring decisions.  The Policy Statement extends coverage to hiring-related actions, such as promotions and lay-off decisions, and notes that the Commission has not reached a determination on whether the preference applies to other terms, conditions, or privileges of employment.  Section 604.10 also fails to address other matters that are explained in detail in our Policy Statement, such as how to determine whether a business is near a reservation or the issue of tribal preferences.

Section 604.10 also provides a brief discussion of Veterans Preference and the National Security Exception, however these topics are discussed in more detail in EEOC Policy Guidance on Veterans Preference Under Title VII (Aug. 10, 1990) and EEOC Policy Guidance on the use of the National Security Exception contained in 703(g) of Title VII of the Civil Rights Act (May 1, 1989).