The Equal Employment Opportunity Commission (“EEOC”) recently released its new Guidance and Fact Sheet on religious garb and grooming in the workplace. While the EEOC’s publications are not legally binding, courts across the country will show deference to the EEOC’s interpretations because they represent uniform guidelines that all employers can refer to when making employment decisions.
The guidelines reiterate that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers with at least 15 employees from disparate treatment of employees based on religion in any aspect of employment including hiring, promotion, and recruitment. Moreover, employers must make reasonable accommodations for employees’ sincerely held religious beliefs and practices unless an accommodation would cause undue hardship to the employer. The guidelines clarify that the employee’s belief or practice may be considered “religious” under Title VII even when it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization. Furthermore, the EEOC takes the position that whether an employee’s belief or practice is “sincerely held” is generally not questionable by an employer. However, if the employer has a legitimate reason for doubting the validity of the belief or practice, the employer may request additional information that is reasonably needed to evaluate its sincerity.
Another concern that has arisen in recent litigation is whether an employer may take action based on the religious preferences of others, such as the employer’s customers. For example, may an employer exclude an employee from a certain position if the employer believes that its customers will be uncomfortable with the religion of the employee? According to the EEOC, the answer is a resounding, “No.” Therefore, employers may be able to prevent such discrimination from occurring by taking steps such as training managers and supervisors to rely on the experience and qualifications of the employee, rather than the employee’s religion, when making employment decisions.
Likely in response to a recent case involving clothing retailer Abercrombie & Fitch, the guidelines also address whether an employer may deny accommodations for religious dress or grooming practices based on the “image” that the employer seeks to convey to its customers. In EEOC v. Abercrombie & Fitch, the retailer allegedly refused to hire a seventeen-year-old Muslim because she wore a hijab-a traditional Muslim headscarf. Abercrombie & Fitch had a policy that required its employees to wear clothing sold in the store and prohibited the wearing of any headgear in order to conform with the company’s marketing strategy. The EEOC guidelines specifically require that employers accommodate such a religious practice regardless of any company policy requiring specific dress, absent any evidence of undue hardship to the employer.
However, the guidelines allow restrictions on religious dress or grooming practices based on workplace safety and concerns. For example, an employer may require an employee to shave his beard when working in a sterile environment if there is no reasonable accommodation available. However, an employer would not be able to require the same employee to shave his beard for the purpose of promoting discipline or to project a certain image for the company.
How are employers to know when a reasonable accommodation must be made to avoid violating Title VII? First, the EEOC advises that employers explain their dress code and grooming policies to the applicant or employee. This will enable the employee to indicate that he or she requires an exception to the policy(ies) for religious reasons. However, the applicant or employee need not use any “magic words” to make the request, such as “accommodation” or “Title VII.” Even in the absence of such a request, the EEOC takes the position that, under certain circumstances, the employer may have sufficient knowledge to know that an accommodation is required. Referring to the Abercrombie & Fitch case above, it is likely that the EEOC would consider the employee’s wearing of the hijab to the job interview to be sufficient notice to the employer that an accommodation was required.
While EEOC guidelines and fact sheets are meant to provide direction and understanding to employers, they often raise more questions than they answer. If you have any questions or concerns regarding religious accommodations for your employees, please do not hesitate to contact your Labor and Employment Counsel.