It’s a hot-button topic that we’ve blogged about before: when does an employer have to make exceptions to its dress and grooming policies because of an employee’s or applicant’s religious objection?

Now the EEOC has weighed in with a new Guidance and Fact Sheet on “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” issued March 6, 2014.

The EEOC’s view is not necessarily the final word on these issues, since the agency’s positions are more employee-friendly than the courts have allowed in some jurisdictions, and individual states’ laws may differ from the agency’s view. Still, the Guidance provides valuable insight for employers as to the EEOC’s position and priorities on the heavily-litigated issues of religious clothing and grooming in the workplace.

Basic Principles as Applied to Religious Clothing & Grooming 

The Guidance confirms religious discrimination law fundamentals, such as that an employer cannot: engage in disparate treatment based on religion; engage in, or tolerate, religious-based harassment; or retaliate against an employee for requesting a religious accommodation. An employer must accommodate employees’ or applicants’ sincerely-held religious beliefs unless doing so would cause undue hardship, defined as a “more than de minimis” cost or burden on the employer’s business.

The Guidance applies these principles to religious clothing and grooming practices. The EEOC emphasizes that an employer cannot automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice because it would violate the employer’s policy or preference as to how employees should look. Instead, an employer must reasonably accommodate the garb or grooming practice—even if it violates the employer’s usual dress and grooming policy—unless it can show the accommodation would cause an undue hardship. 

There’s no one-size-fits-all answer as to how to respond to a request for religious accommodation. An employer must weigh each request on a case-by-case basis. 

What Does “Undue Hardship” Mean When It Comes to Religious Attire and Grooming?

The EEOC states that coworkers’ disgruntlement or jealousy about the 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 just because other employees will be annoyed that they can’t have an exception for secular reasons. The EEOC also notes that concern that an accommodation will damage the employer’s “image” or “marketing strategy”—an issue in the recent Abercrombie & Fitch case—may not be sufficient to show undue hardship.

The EEOC provides 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 truly necessary to meet those concerns. The employer must also 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.

What Sort of Accommodations Might Work for Religious Attire or Grooming?

The EEOC offers suggestions for how the employer 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.

So What Exactly Is a Sincere 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). Further, 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 should generally assume that claimed religious beliefs are sincere.  An employer considering denying any accommodation on the grounds that the request is not based on a sincere, or religious, belief should seek advice of counsel first.

When Is An Employer on Notice That An Employee Might Need an Accommodation? 

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. Still further, 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.

What Can an Employer Do To Minimize Risk?

The Guidance emphasizes some best practices that help employers minimize risk, including: