The number of lawsuits and charges over the past few years involving claims of religious discrimination is on the rise. In March, the Equal Employment Opportunity Commission ("EEOC") issued a "rights and responsibilities" document regarding acceptable religious dress and grooming practices, an area of particular focus in several of the recent cases. The default position of the EEOC is that in most cases, employers must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices. As for what constitutes a “religious” practice or belief, the EEOC casts a wide net to include not only practices followed by traditional organized religions, but also religious beliefs that, for example, are “new”, “uncommon” or “not part of a formal church or sect.”
The EEOC also continues to take the 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 Tenth Circuit's decision in EEOC v. Abercrombie & Fitch, 731 F.3d 1106 (10th Cir. 2013), pet. for reh'g en banc denied, (2014), that requires an applicant or employee to tell 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 guidance also explains that businesses cannot rely on customer preference as a defense to failure to accommodate claims, nor can companies assign individuals to back offices because of actual or feared customer preference. Also, denying an accommodation in order to protect a company brand or image can potentially be unlawful.
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.
This reminder regarding the EEOC's view of an employer's rights and responsibilities to accommodate religious practices in the workplace emphasizes the need for all employers to 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.