Why it matters: In the wake of several high-profile cases – from a Muslim worker’s suit against Abercrombie and Fitch over the right to wear her hijab to a new suit filed by the Department of Justice against a Philadelphia school district accusing it of religious discrimination by requiring a school police officer to trim his beard despite his Islamic beliefs – the Equal Employment Opportunity Commission has released new informal guidance on the issue of religious dress and grooming. In a question-and-answer guide and fact sheet, the agency addressed topics ranging from accommodations for religious grooming or dress to cautioning employers not to engage in job segregation, like assigning an employee to a stockroom after he requests an accommodation. Employers should review the new guidance to understand the application of federal law and what steps they can take to meet their legal responsibilities.
The EEOC’s “Religious Garb and Grooming in the Workplace: Rights and Responsibilities” guidance emphasizes a central point: Employers covered by Title VII must make exceptions to general rules to allow employees to follow their religiously mandated dress and grooming practices unless it would pose an undue hardship.
“It is advisable in all instances for employers to make a case-by-case determination of any requested religious exceptions, and to train managers accordingly,” the agency advised in the fact sheet. Undue hardship does not include jealousy or disgruntlement from coworkers, the guidance noted.
The Q-and-A document provides several examples of dress and grooming practices. Dress includes articles like a Christian cross, a Sikh turban, or a Muslim hijab as well as a prohibition on certain articles of clothing , such as the practice of Orthodox Jewish women not to wear pants or short skirts. As for grooming, many religions include observances against shaving or about hair length, like Jewish sidelocks, Rastafarian dreadlocks, and Sikh uncut hair and beards.
In 21 different examples, the agency answers questions like “Can an employer exclude someone from a position because of discriminatory customer preference?” and “What if an employer questions whether the applicant’s or employee’s asserted religious practice is sincerely held?” (Answers: No, and don’t assume that religious observance is not sincere, even with newly expressed beliefs or irregular observance. Instead, ask the employee for more information.)
Employers may need to make an exception to uniform policies as a religious accommodation, the guidance explains, offering the example of a female requesting to wear a long skirt under the tennis shorts required by her employer at a sports club. An argument that a requested accommodation would impact the employer’s “image” or marketing strategy is insufficient to demonstrate an undue hardship, the EEOC said.
An employer may refuse to grant an accommodation based upon workplace safety, security, or health concerns and that poses an undue hardship. But the agency provided several scenarios that did not trigger such concerns. In one example, a Native American worker who wears his hair long for religious reasons in contravention of a restaurant’s policy for men to keep their hair “short and neat” does not present any safety or health concerns, the agency explained, since he could be accommodated by wearing his hair in a ponytail or a clip.
Retaliation based on a request for religious accommodation is also outlawed by Title VII, and the guidance cautioned about religious harassment in violation of the statute when “an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment,” or is subjected to unwelcome statements or conduct based on religion.
Employers may be liable for harassment by coworkers and third parties, the EEOC said, in situations where it knew or should have known about the harassment and did not take “prompt and appropriate” corrective action. In one example, a supervisor was aware that coworkers made disparaging comments about fellow employees, observant Sikhs wearing religious head coverings, and embarrassed them in front of customers. By not taking steps to halt the harassment, the employer could be liable in that situation.
To read the guidance, click here.
To read the accompanying fact sheet, click here.