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EEOC Issues Guidance Regarding Accommodation Of Religious Garb And Grooming In The Workplace

Nancy Puleo April 8, 2014

The Equal Employment Opportunity Commission (“EEOC”) reports that it saw a 250% increase in the number of religious discrimination charges involving Muslims in the initial months following 9/11. The EEOC created a method to track charges of discrimination directly related to 9/11.  According to the EEOC, between September 11, 2001 and March 11, 2012, 1,040 charges related to the 9/11 attacks were filed by an individual who is, or is perceived to be, Muslim, Sikh, Arab, Middle Eastern or South Asian.  While the EEOC reports the number of charges directly related to 9/11 has dwindled, the Commission continues to see an increase in charges involving religious discrimination against Muslims or those with a Middle Eastern background. 

To address this increase in religious discrimination charges, on March 6, 2014, the EEOC released a new question and answer guide and accompanying fact sheet on religious garb and grooming in the workplace under Title VII of the Civil Rights Act of 1964.  Examples of religious garb and grooming practices include wearing religious clothing or articles (for example, a Muslim hijab) or adhering to shaving or hair length observances (for example, Rastafarian dreadlocks, Jewish peyes, or Sikh uncut hair and beard).

Overview of the New EEOC Guidance

In general, employers are expected to modify their usual dress and grooming policies to accommodate employees’ “sincerely held” religious beliefs unless doing so would pose an undue hardship.  Undue hardship has been defined by the courts as a “more than de minimus” cost or burden on the operation of the employer’s business.  A dress or grooming practice due to personal preference is not protected by Title VII; therefore, if an employer has a legitimate reason to question the sincerity of a religious belief or practice, it may ask an applicant or employee for information reasonably needed to evaluate the request.

The EEOC guidance makes clear that neither customer preference nor employer image or “branding” is a defense to a claim for failure to accommodate religious beliefs and practices.  Similarly, employers cannot assign employees to non-customer contact positions due to concerns about the effect of their appearance on customer perceptions, as doing so violates Title VII’s prohibition on limiting, segregating, or classifying employees based on religion.

The EEOC guidance explains the limited circumstances under which accommodation of religious garb and grooming practices presents an undue hardship to the employer. Workplace safety, security or health mayjustify denying an accommodation, such as prohibiting employees from wearing loose skirts when working near machines because of the risk of employee entanglement or prohibiting personnel at a correctional facility from wearing headgear due to the potential for smuggling contraband.  Even in these two examples, the EEOC advises employers to evaluate the particular request as it relates to the particular employee’s position.  A universal ban is unlikely to withstand scrutiny.  In general, an employer must work with an employee to devise an accommodation that meets both the religious practice and the safety issues, for example, a restaurant may allow an employee who wears long hair for religious reasons to use a hair net.

Most noteworthy, the new guidance indicates the burden is not always on employees and applicants to request an accommodation upon learning of a workplace requirement that conflicts with their religious practice.  The EEOC noted that in some cases, absent a request, it is obvious a practice is religious and conflicts with a work policy, in which case the employee or applicant need not explicitly request an accommodation to trigger the employer’s obligations under Title VII.  Note that even when the need for accommodation is not obvious, the employee or applicant is not required to use “magic words” or make the request, such as using the term “accommodation.”

What Employers Can Do

The EEOC’s guidance illustrates the complexity of employers’ obligations to accommodate employees’ religious beliefs or practices.  It also reinforces the EEOC’s commitment to vigorously enforce the federal law in this arena.  The following steps may minimize an employer’s risk of a claim of religious discrimination:

  • Have an anti-discrimination policy that extends to religious discrimination and outlines a procedure for requesting accommodations due to sincerely held religious beliefs;
  • Educate hiring and human resources personnel regarding the subtleties of accommodation requests in this context;
  • Carefully evaluate when a religious accommodation would or would not be an undue hardship;
  • Maintain an internal avenue of appeal or review for employees aggrieved by accommodation decisions; and
  • Ensure compliance with applicable state or local laws addressing religious discrimination, which may be more expansive than federal law. 

If you have any questions or need additional information regarding this, please contact Nancy J. Puleo or any other attorney in our Employment Group.

This Alert is provided for information purposes onlyand does not constitute legal advice.  According to Mass.SJC Rule 3:07this material may be considered advertising. ©2014 Posternak Blankstein & Lund LLP.  All rights reserved.

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