Thursday, March 20, 2014

EEOC Explains Rights and Responsibilities Concerning Religious Garb and Grooming in the Workplace

Recently the EEOC released a fact sheet and a rather helpful Q&A on accommodating religious dress and grooming practices. See it here.

There have been some rather widely reported cases where a business has fun afoul of discrimination laws concerning religious beliefs and practices (Abercrombie and Fitch being one of them). Regardless of how blatant the situation at Abercrombie seemed, it’s not always that easy for an employer to determine if a) the religious belief or practice is one that’s protected, or b) if their dress/grooming policy may be discriminatory under the law. The newly released guidance should be of some help, since it gives several real-life examples.

In most cases, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to allow applicants and employees to follow religious dress and grooming practices. This may include religious head wear (hijab, turban) or wearing the hair long, wearing a beard, etc. It also applies to religious prohibitions against wearing certain types of clothing (clothing that bares the arms or legs) and so on.

Title VII also prohibits disparate treatment based on religious belief or practice, or the absence of belief (yes, you have a right to be free from religion also!). Segregation in the workplace based on religion, religious dress and/or grooming practices is also prohibited. So for instance, you can’t assign an employee to a non-customer facing position because your customers don’t agree with the employee’s beliefs or practices, or because you think your customers might have an issue with it. You also can’t fire, or refuse to hire based on these factors, either.

Once aware that an accommodation is needed for a sincerely held religious belief, an employer must make exceptions to its dress and grooming policies/preferences unless doing so would pose an undue hardship. Concerning dress and/or grooming, few claims of undue hardship will fly, unless it can be shown to be legitimately related to safety, security or health concerns.

Here are some of the examples listed in the EEOC’s user-friendly guidance (these come from actual EEOC cases).

Employment Decision Based on Customer Preference
Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew's business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh's perceived religion. Adarsh's termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.

Exception to Uniform Policy as a Religious Accommodation
Based on her religious beliefs, Ruth adheres to modest dress. She is hired as a front desk attendant at a sports club, where her duties consist of checking members' identification badges as they enter the facility. The club manager advises Ruth that the club has a dress code requiring all employees to wear white tennis shorts and a polo shirt with the facility logo. Ruth requests permission as a religious accommodation to wear a long white skirt with the required shirt, instead of wearing shorts. The club grants her request, because Ruth's sincerely held religious belief conflicts with the workplace dress code, and accommodating her would not pose an undue hardship. If other employees seek exceptions to the dress code for non-religious reasons such as personal preference, the employer is permitted to deny their requests, even though it granted Ruth a religious accommodation.

Long Hair
David wears long hair pursuant to his Native American religious beliefs. He applies for a job as a server at a restaurant that requires its male employees to wear their hair "short and neat." When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs and offers to wear it in a ponytail or held up with a clip. The manager refuses this accommodation and denies David the position because he has long hair. Since David could have been accommodated without undue hardship by wearing his hair in a ponytail or held up neatly with a clip, the employer violated Title VII.

Co-Worker Harassment
XYZ Motors, a large used car business, has several employees who are observant Sikhs or Muslims and wear religious head coverings. A manager becomes aware that an employee named Bill regularly calls these co-workers names like "diaper head," "bag head," and "the local terrorists," and that he has intentionally embarrassed them in front of customers by claiming that they are incompetent. Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to stop the conduct by anyone under their control.

Head Coverings That Pose Security Concerns
A private company contracts to provide guards, administrative and medical personnel, and other staff for state and local correctional facilities. The company adopts a new, inflexible policy barring any headgear, including religious head coverings, in all areas of the facility, citing security concerns about the potential for smuggling contraband, interfering with identification, or use of the headgear as a weapon. To comply with Title VII, the employer should consider requests to wear religious headgear on a case-by-case basis to determine whether the identified risks actually exist in that situation and pose an undue hardship. Relevant facts may include the individual's job, the particular garb at issue, and the available accommodations. For example, if an individual's religious headgear is or can be worn in a manner that does not inhibit visual identification of the employee, and if temporary removal may be accomplished for security screens and to address smuggling concerns without undue hardship, the individual can be accommodated.

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