The number of lawsuits and charges over the past few years involving claims of religious discrimination indisputably is on the rise. In March 2014, the Equal Employment Opportunity Commission (EEOC) issued guidance on how employers can meet their legal responsibilities with respect to religious dress and grooming practices, a particular focus of several of the more recent lawsuits involving claims of religious discrimination.
The guidance posits the EEOC's default position that in most cases, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices.
One of the first issues that the EEOC addresses in its guidance is the question of what constitutes a religious practice or belief. The EEOC states that Title VII protects all aspects of religious observance, practice, and belief, and defines religion very broadly to include traditional, organized religions (e.g., Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism), but also religious beliefs that are "new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others." Notably, the guidance provides that because this definition of religion is "so broad," whether a practice or belief is religious typically is not disputed in Title VII cases.
The guidance also provides several examples of what may constitute protected religious dress and grooming practices, including: wearing religious clothing or articles (e.g., a Christian cross, a Muslim hijab (headscarf), a Sikh turban, a Sikh kirpan (symbolic miniature sword)); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal, Christian, or Orthodox Jewish woman's practice of wearing modest clothing, and of not wearing pants or short skirts); or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).
While, in fact, the issue of what a constitutes a religious practice may not often be litigated, it is relevant to the role of the employer in deciding whether it will make an exception to its dress and grooming policies or preferences to accommodate the religious practices of an applicant or employee. The guidance clarifies the EEOC's position that the applicant or employee need not use any "magic words" in making a request and that in some cases, even absent a request, it will be obvious that the practice is religious and conflicts with a work policy, such that an accommodation is needed.
This guidance is contrary to the 10th Circuit's decision in EEOC v. Abercrombie & Fitch that an employer will not be liable for failure to accommodate a particular religious practice unless the applicant or employee tells the employer that he or she adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice. The EEOC is expected to petition the U.S. Supreme Court for certiori in this case. The guidance clearly indicates that the EEOC intends to continue to hold employers — at least outside of the 10th Circuit — responsible for accommodating a religious practice absent a specific statement by the employee that the employee needs an accommodation due to a conflict between the practice and the employer's neutral work rule.
The EEOC further explains the limited circumstances in which an employer might be able to argue that accommodating a religious dress or grooming practice would constitute an undue hardship. The guidance states that while safety, security or health may justify denying an accommodation, even in many of those situations the employer must work with the employee to determine whether there may be an available accommodation that will permit the employee to adhere to his or her religious practices.
The guidance also strongly articulates that discriminatory customer preference can never serve as a defense to a failure to accommodate a religious dress or grooming practice claim and that assigning individuals to non-customer contact positions because of actual or feared customer preference violates Title VII. Thus, if an employer takes action based on the discriminatory religious preferences of others, the employer will be engaging in unlawful discrimination.
The EEOC further notes that denying a request for an accommodation under the rubric of protecting a company brand or image may also be unlawful. Specifically, the EEOC states that doing so may amount to relying on customer preference in violation of Title VII, or otherwise be insufficient to demonstrate that making an exception would cause undue hardship on the operation of the business.
As a result of this guidance, employers should train managers on how to recognize what may constitute a request for a religious accommodation. Managers also should be aware that requests for accommodation should not be rejected due to concerns about the company's brand or image, and that customer preference is not a lawful basis for employment decisions in this context.