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New Guidance Regarding Religious Discrimination

05.15.2014

The U.S. Equal Employment Opportunity Commission ("EEOC") recently issued new guidance addressing employers’ obligations with respect to employees’ religious beliefs and practices. Specifically, the EEOC addressed "religious garb and grooming" in the workplace and provided direction with respect to employers’ obligations regarding such issues. With respect to religious garb, the EEOC noted that, based on religious beliefs, employees may request permission to wear items such as headscarves, turbans or crosses at work. Other religions may preclude women from wearing shorts or pants. Similarly, employees may choose to wear certain hairstyles and maintain facial hair in observance of certain religions.

According to the EEOC, Title VII of the Civil Rights Act protects all aspects of religious observance, practice and belief. Generally, employers must provide reasonable accommodations for "sincerely held" religious practices unless the accommodation would cause an undue hardship for the employer. Title VII defines "religion" very broadly to include not only traditional organized religions, but also religious beliefs that are new, uncommon, not part of a formal church and only practiced by a small number of people. With respect to the "sincerely held" component of an employee’s belief, the guidance states that the "sincerity" of an employee’s stated religious belief will generally not be in dispute in religious discrimination cases. The EEOC noted that there are limited exceptions where an employer may bar an employee’s religious dress or grooming practice based on work place safety, security or health concerns. However, the EEOC also opined that in many instances, an available accommodation is available that would permit the employee to adhere to religious practices and would permit the employer to avoid undue hardship. Specific examples included allowing an employee to pull his long hair back into a ponytail to comply with an employer’s requirement that employees wear their hair "short and neat". With respect to religious garb and grooming issues, the EEOC stated that "in most instances, employers are required by federal law to make exceptions to their usual rules of preferences to permit applicants and employees to observe religious dress and grooming practices." To illustrate, the EEOC provided the two examples below:

EXAMPLE 4

EXCEPTION TO UNIFORM POLICY, RELIGIOUS CONNOTATION

Based on her religious beliefs, Ruth adheres to modest dress. She was 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 advised 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 impose 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 the request, even though it granted Ruth a religious accommodation.

EXAMPLE 6

"IMAGE"

Tahera, an applicant for a retail sales position at a national clothing company that carries current fashions for teens, wears a headscarf in accordance with her Muslim religious beliefs. Based on its marketing strategy, the company requires sales personnel to wear only clothing sold in its stores, and no headgear, so that they will look like the clothing models in the company’s sales catalogues. Although the company believes that Tahera wears a headscarf for religious reasons, the company does not hire her because it does not want to make an exception. While the company may maintain its dress and grooming rule for other sales personnel, it must make an exception as a religious accommodation in the absence of employer evidence of undue hardship.

The guidance reaffirms that employers are obligated to investigate any complaint of religious harassment in the same manner that it would investigate a complaint of other harassment or discrimination on a basis protected by Title VII (race, color, religion, sex and national origin).

The recent EEOC guidance does not signal a change in the EEOC’s position with respect to religious discrimination/accommodation issues. However, the new guidance is beneficial in that it does provide several instructive examples that address common religious discrimination/accommodation issues that may arise in the work place.

Overall, employers should be especially cautious in responding to employee requests for accommodation based on religious beliefs. Employers cannot rely on their regular dress code policies in denying such requests. As described by the EEOC, very rarely will an employer be able to establish that it is an undue hardship to accommodate an employee’s request for religious accommodation – especially when such request is related to the employee’s clothing or grooming practices.

The actual EEOC guidance can be located using the following links:

http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm

http://www1.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm?renderforprint=1

Please contact a member of Koley Jessen’s Employment, Labor and Benefits Practice Group if you have additional questions.

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