Since 1964, when Congress passed Title VII to prohibit religious discrimination in the workplace, employers have faced myriad situations involving the religious accommodation of employees. Recently, the U.S. Equal Employment Opportunity Commission (EEOC) published both a fact sheet and a question-and-answer guide, addressing how the federal law applies to employers’ dress codes and grooming policies that may conflict with various religious customs. For example, according to the EEOC:
- A policy requiring male employees to wear their hair short may conflict with a practicing Nazirite’s beliefs, which include not cutting one’s hair.
- A policy prohibiting employees from wearing head coverings may conflict with a Muslim woman’s practice of wearing a religious headscarf during Ramadan.
The guidance clarifies that discriminatory customer preference is not a defense to a claim of discrimination. The guidance also confirms that Title VII’s reasonable accommodation requirement applies to employees for whom dress codes and grooming policies violate a sincerely held religious belief, even if “other people may engage in the same practice for secular reasons.” However, according to the EEOC, “if a dress or grooming practice is a personal preference” or based on other non-religious reasons (e.g., where an item is worn for fashion), “it does not come under Title VII's religion protections.” For example:
- If customers refuse to do business with a Sikh employee who wears a religious turban, an employer may not terminate the employee to regain the business.
- An employer may not assign employees to non-customer positions or “back room” roles out of fear that customers will have a biased response to religious garb or grooming. This practice violates Title VII’s prohibition on limiting, segregating or classifying employees based on religion.
- If an employee requests an accommodation to wear a long skirt instead of short pants based on the tenets of her Apostolic Pentecostal faith, the employer need not grant exceptions to other employees who seek deviations from the dress code for non-religious reasons.
Employers must grant a reasonable accommodation to employees who wish to observe religious customs or traditions unless such accommodation would pose an undue hardship on the employer. An “undue hardship” is evaluated on a much lower standard than the similar concept under the Americans With Disabilities Act (ADA). In the religious discrimination context, a potential accommodation would constitute an undue hardship if an employer can show that the cost or burden of complying is “more than de minimus.” For example:
- An employer may be required to accommodate an employee’s religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work, so long as the employee’s religious beliefs permit covering the attire or item.
- An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security or health concerns, but only if the practice or a modification actually poses an undue hardship on the operation of the business or the safety of the employee or others (e.g., a ban on loose clothing near moving machinery). However, even then, the employer must coordinate with the employee to determine if there is an accommodation available that “will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.”
To minimize the risk of discriminating against applicants and employees, employers should train managers to rely on specific experience, qualifications and other objective, non-discriminatory factors when making employment decisions. This training should also make clear that customer preference regarding religious beliefs and practices is not a lawful basis for employment decisions, and should include instruction on how not to engage in stereotyping about work qualifications or availability based on religious dress and grooming practices.
To view a copy of the EEOC fact sheet, click here.
To view a copy of the EEOC question-and-answer guide, click here.
For questions about the EEOC guidance or other issues related to religious discrimination and accommodations, please contact the authors or any other member of the firm’s labor and employment group.