EEOC Issues Guidance on Religious Dress and Grooming Accommodation

On March 6, 2014, the EEOC issued a fact sheet and a question and answer sheet ("guidelines") providing guidance on religious dress and grooming under Title VII of the Civil Rights Act of 1964. As with other Title VII-protected classes, employers are prohibited from discriminating, harassing or retaliating against applicants and employees based on religious beliefs and practices. Title VII also requires employers to accommodate applicants' and employees' sincerely held religious beliefs and practices unless doing so would cause the employer undue hardship.

The EEOC guidelines include the following key points:

Definition of "Religious Observance"

Employers must accommodate all aspects of religious observance, practice and belief. "Religion" is broadly defined and includes traditional religions such as Christianity, Judaism, Islam, Hinduism, Buddhism and Sikhism, as well as new or uncommon religions. An applicant or employee's belief or practice can be religious even if it is unaffiliated with a formal religious organization. Because of this broad definition, an assertion that a belief or practice is religious is typically difficult to challenge.

Meaning of "Sincerely Held"

Similarly, the employer will seldom have a basis for denying that an applicant or employee's religious belief or practice is "sincerely held." A religious practice that deviates from commonly followed tenets of the religion or a practice that the individual has just begun can be sincerely held. For example:

A two-year restaurant employee who has always worn his hair short has recently let it grow long. When his manager advises him that the company has a policy requiring male employees to wear their hair short, the employee explains that he is a newly practicing Nazirite and now adheres to the religious beliefs that include not cutting his hair. The employee's observance can be sincerely held even though it is recently adopted. (EEOC Questions and Answers, Example 1)

Employer Knowledge of Accommodation Requests

An applicant or employee does not need to use particular words such as "accommodation" or "Title VII" when requesting a religious accommodation; however, the employer must have knowledge that the requested accommodation (for example, wearing religious dress or long hair) is necessary for the employee's religious beliefs or practices. The following is an example from the EEOC guidelines of sufficient employer knowledge of a need for religious accommodation:

An applicant for a rental car sales position, who is an observant Sikh, wears a Chunni (religious headscarf) to her job interview. The interviewer does not advise her that there is a dress code prohibiting head coverings, and the applicant does not ask whether she would be permitted to wear the headscarf if she were hired. There is evidence that the manager believes that the headscarf is a religious garment, presumed it would be worn at work, and refused to hire the applicant because the company requires sales agents to wear a uniform with no additions or exceptions. This refusal to hire the applicant violates Title VII, even though the applicant did not make a request for accommodation, because the employer believed the applicant's practice was religious and that she would need accommodation, and did not hire her for that reason. (EEOC Questions and Answers, Example 7)

An employer should carefully analyze each accommodation request on a case-by-case basis and may request additional information from the employee to fully understand the requested accommodation.

Dress and Grooming-Related Requests

One of the most commonly sought religious accommodations is an exception to an employer's dress and grooming policy. If an applicant or employee requests an accommodation for a sincerely held religious belief, practice or observance that conflicts with the employer's dress and grooming policy, the employer must make an exception to allow the religious practice unless doing so would cause an undue hardship. For example:

A restaurant server applicant wears long hair for religious beliefs. The restaurant requires its servers to wear their hair short and neat. During the interview, the manager informs the applicant that if offered the position, he will need to cut his hair. After explaining that he wears his hair long for a religious belief, the applicant offers to pull his hair up in a ponytail or held up with a clip. The manager refuses to allow the applicant to wear his hair in a ponytail and declines to offer him a position. Since the applicant could have been accommodated without an undue hardship to the restaurant, the manager has violated Title VII. (EEOC Questions and Answers, Example 14)

Definition of "Undue Hardship"

For purposes of religious discrimination, undue hardship is defined as more than de minimis cost or burden on the operation of the employer's business, a lower standard than that required for accommodations under the Americans With Disabilities Act.

Deviating from a company's preferred image and customer preferences is not considered an undue hardship. An employer may not assign an employee requesting a religious accommodation to a non-customer contact position if the requested accommodation does not meet the employer's desired image or if the employer fears that customers will have a biased response to the religious dress or grooming. For example:

A customer service employee at a coffee shop wears a turban as part of his sincerely-held religious belief. A construction site crew stops coming into the coffee shop and informs the manager that they ceased coming to the shop because the employee's turban makes them uncomfortable. The manager terminates the employee because of the loss of business caused by his turban. The manager has violated Title VII by taking an adverse action based on customer preference. (EEOC Questions and Answers, Example 3)

Workplace Safety, Security or Health Concerns

An employer may deny an employee's religious dress or grooming request based on workplace safety, security or health concerns, but the concerns must be justified and not speculative.

Uniforms

Employers who require their employees to wear a uniform (such as food service jobs) may inquire whether or not the employee's beliefs would allow an accommodation such as wearing the religious garb in the same color as the uniform. It is also permissible for an employer to ask the employee if his/her religious beliefs allow the religious dress or grooming to be covered while at work. However, if covering the religious dress or grooming violates the employee's religious beliefs, the employer may not require the employee to cover it unless the failure to do so would impose an undue hardship.

Employers should train their managers and human resources personnel in the implementation of these guidelines. An individual seeking an accommodation of religious practices or beliefs should not be rejected for employment or continued employment unless a manager or HR representative has analyzed the requirements of the job and determined, based on objective information, that no accommodation is possible without creating an undue hardship. Legal counsel can help employers determine what is required. If you have questions about how these guidelines affect your organization, please contact any member of the labor and employment practice at Faegre Baker Daniels.