• Religion and the Workplace: EEOC Guidance
  • April 6, 2015 | Authors: Katherine A. Hren; Richard S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Glendale Office
  • With so much recent media attention devoted to the subject of religious conflict, it's only natural that such matters spill over into the workplace. We thought it would be a good time for a brief refresher on an employer's basic duty to accommodate the sincerely held religious beliefs and expressions of job applicants/employees.

    Ever since Congress passed the historic federal job bias legislation commonly known as "Title VII" in 1964, it's been the law of the land that religious discrimination is illegal. With the passage of that legislation, employers faced a complex set of challenges involving what they must do to legally accommodate the religious beliefs and practices of job applicants/employees. In response to a surge in the number of lawsuits and administrative complaints involving claims of illegal religious discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) published a fact sheet and a Q&A guide in 2014 to inform employers and employees about what's legally expected and how the federal anti-discrimination law applies to dress codes and grooming policies.

    The first point in the analysis is that Title VII trumps any state or local law that provides employees/job applicants with less protection. Title VII's religious discrimination rule places a ban on religious discrimination in the workplace and requires employers to "reasonably accommodate" these religious beliefs and practices once an employer representative is made aware of a conflict between those beliefs/practices and one or more job requirements. (As we previously reported in Compliance Matters, this issue is of such importance that the U.S. Supreme Court will hear a case this term involving religious headscarves commonly worn by Muslims). The only exception to this general rule is where the employer can prove that the needed accommodation would cause the employer to suffer what's known as an "undue hardship". Employers bear the legal burden of proving that a requested accommodation would be unduly burdensome. We suggest you think of this as a very steep hill to climb; not impossible, but difficult.

    The EEOC's guidance focuses primarily on the obligation to reasonably accommodate religion-based dress or grooming practices where those practices conflict with a job requirement. The guidance provides advice on what steps an employer is expected to take to meet those legal obligations. Some of the important issues the guidance attempts to clarify are:
    • The basics of how Title VII applies to religious dress and grooming in the workplace;
    • What it means for a religious practice to be "sincerely held";
    • What an employer should do if an applicant or employee's religious dress conflicts with an employer's dress code;What constitutes retaliation against an employee for requesting a religious accommodation; and 
    • What constitutes religious harassment under Title VII, and what obligations an employer has to stop it.
    The Q&A document includes illustrative examples for each question, and provides a list of other resources for employers related to the topic of religious accommodation. Some of the more common examples of religious dress and grooming practices identified by the EEOC include:
    • wearing religious clothing or articles (such as a Muslim headscarf, a Sikh turban, or a Christian cross);
    • observing a religious prohibition against wearing certain garments (such as a religious practice of not wearing pants or short skirts); or
    • adhering to shaving or hair length observances (including Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish "paius" or sidelocks).
    Notably, for such practices to be legally protected by Title VII, they must be motivated by a "sincerely held" religious belief. Accordingly, someone who wears a cross or keeps his or her hair in dreadlocks for non-religious reasons is not entitled to an accommodation under Title VII. Thus, "[i]f an employer has a legitimate reason for questioning the sincerity or even the religious nature of a particular belief or practice for which accommodation has been requested," the guidance suggests "[the employer] may ask an applicant or employee for information reasonably needed to evaluate the request." The guidance cautions, however, that employers should not automatically assume that a belief or observance is insincere simply because it may change over time or may only manifest itself at certain times. It's very difficult for an employer to win the argument that the belief is not sincerely held.

    To minimize employee lawsuits, the best place to start the analysis is to assume that you are going to have to grant a reasonable accommodation to applicants/employees who wish to observe religious customs or traditions at work unless such accommodation would really pose an undue hardship on the employer. The examples contained in the guidance reflect a balancing between the employer's business interests and the individual's interest in religious expression that is generally consistent with the courts' application of the "undue hardship" test. Some of the frequently asked questions:
    • Q: Can an employer exclude someone from a position because of discriminatory customer preference?
    A: No. If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.
    • Q: May an employer assign an employee to a non-customer contact position because of customer preference?
    A: No. Assigning applicants or employees to a non-customer contact position because of actual or feared customer preference violates Title VII's prohibition on limiting, segregating, or classifying employees based on religion.
    • Q: May an employer bar an employee's religious dress or grooming practice based on workplace safety, security, or health concerns?
    A: Yes, but only if the practice actually poses an undue hardship on the operation of the business. For example, a restaurant-employer that refuses to accommodate an applicant's request to keep his hair long based on his religious beliefs would likely be found in violation of Title VII because he could have been accommodated without undue hardship by wearing his hair in a ponytail or held up neatly with a clip.
    • Q: May an employer accommodate an employee's religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work?
    A: Yes, if the employee's religious beliefs permit covering the attire or item. However, requiring an employee's religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee's religious beliefs.
    To mitigate against the risks of religious discrimination claims, employers can take several pro-active steps, including:
    • Establishing procedures for documenting and effectively responding to religious accommodation requests;
    • Analyzing and documenting whenever a religious accommodation would be an undue hardship and articulate an ongoing commitment to providing reasonable accommodations;
    • Publishing an anti-harassment policy that clearly explains what is prohibited, and provides avenues for complaints to management;
    • Providing ongoing training to every manager and supervisor who will be responsible for identifying and responding to requests for accommodation.
    Because no two cases are the same, the need for accommodation generally will be determined on a case-by-case basis based upon all of the facts (i.e., nature of accommodation, the employee's job duties, and the sincerity of the employee's religious belief). Employers act at their peril if they don't evaluate and document each religious accommodation request.