The EEOC recently issued a new Guidance and Fact Sheet on “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.” Although The EEOC’s view is not necessarily the final word on these issues, the Guidance provides valuable insight for employers on the agency’s view on the heavily-litigated issues of religious clothing and grooming in the workplace.
The Guidance confirms religious discrimination law fundamentals, such as the prohibition of religious-based disparate treatment and harassment, and retaliation based on a religious accommodation request. Employers must reasonably accommodate sincerely-held religious beliefs unless doing so would cause undue hardship, defined as a “more than de minimis” cost or burden. The Guidance applies these principles to religious clothing and grooming practices. An employer must reasonably accommodate a request for a religious accommodation—even if it violates the employer’s usual dress and grooming policy—unless it can show the accommodation would cause an undue hardship. Because there is no one-size-fits-all answer, employers must weigh each request on a case-by-case basis.
Sincerely Held Religious Belief. The Guidance provides that Title VII protects all sincerely-held religious beliefs, even if they are not part of any formal church or sect, are practiced by very few people, or seem illogical or unreasonable. The law also protects religious practices that the employee recently adopted, or only practices during certain times (such as a religious holiday). The EEOC takes the position that even “non-theistic moral or ethical beliefs as to what is right or wrong,” can be protected if “sincerely held with the strength of traditional religious views.” The bottom line? An employer considering denying an accommodation on the grounds that the request is not based on a sincere or religious belief should seek advice of counsel first.
Undue Hardship. The EEOC states that coworkers’ disgruntlement or jealousy about a religious accommodation, or customers’ actual or perceived discriminatory preferences, are not sufficient reasons to deny a requested accommodation. That means that the employer cannot, for example, put an employee who wears religious garb in a non-customer-facing role for fear of customers’ reactions to the attire, or deny an accommodation because other employees will be annoyed that they cannot have an exception for secular reasons. The EEOC also notes that concern that an accommodation will damage the employer’s “image” or “marketing strategy” may not be sufficient to show undue hardship.
The EEOC acknowledges that an employer may be able to refuse a religious dress or grooming request based on workplace health, safety or security concerns, but warns that the requirement must be necessary to meet those concerns and that employers must consider whether there is any reasonable accommodation that would resolve the safety concern. For example, a surgical instrument manufacturer that requires men to shave or trim facial hair in order to preserve a sterile environment may be able to reasonably accommodate an employee with a religious objection by allowing him to wear an extra face mask if that would cure the sterilization concern and comport with the religious belief.
Accommodations. The EEOC offers suggestions for how employers might reasonably accommodate certain attire and grooming requests. For example, an employer can accommodate an employee’s religious dress or grooming practice by offering to have the employee cover that attire or item at work, but only if the employee’s religious beliefs permit the covering. Similarly, an employer that requires uniforms may be able to require the employee to wear a religious item in the company’s uniform colors, if doing so is consistent with the employee’s religious beliefs.
Notice. The EEOC explains that an employee need not use any “magic words” to request an accommodation, but need only make the employer aware of a need for an exception to a policy for religious reasons. The EEOC takes the position (currently being litigated in the courts) that even without any request, an employer may still be obligated to provide a reasonable accommodation if the employer believes the practice is religious and would require an exception from the employer’s policy. Given the EEOC’s view, an employer who believes for any reason that an accommodation may be necessary (whether or not the employee has expressly asked for it), should seek guidance from legal counsel.
Minimize Risk. The Guidance emphasizes some best practices that help employers minimize risk, including (a) training managers on responding to religious accommodation requests; (b) maintaining clear and compliant policies for handling religious accommodation requests; and (c) setting up a process for fact-specific analysis of each request. Given the EEOC’s focus on this issue, employers faced with requests for a religious accommodation should consult with counsel with specific experience in this area of the law.