A new settlement brings to mind an old post – which bears reposting.
The EEOC just settled a religious discrimination case filed against a Florida staffing company for the hospitality industry. It was alleged that an employee who was a Rastafarian, who wore dreadlocks as part of his sincerely held religious belief, was taken off his assignment and never reassigned because he refused to comply with a client-hotel’s grooming policy by not cutting off his dreadlocks.
An EEOC regional attorney commented that “The Supreme Court’s opinion in EEOC v. Abercrombie & Fitch reminds us that we must be vigilant in protecting sincere religious expression in the workplace. This is particularly important where the Commission has recognized ‘the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, and independent contractor relationships’ in an ever more on-demand economy.”
This new settlement reminded me of a post which I did back in late 2016, which I reprise below.
Last November I wrote about a company that designs and manufactures automotive brake components, and its staffing agency, which were just sued by the EEOC for religious discrimination in hiring. The facts and the issue are familiar to us, and give us a chance to review the law on accommodation of religious beliefs and practices.
In this new case, the would-be employee, who had been made an offer of employment, “is an observant member of the Apostolic Faith Church of God and True Holiness, a Pentecostal Christian denomination. [She] holds the religious belief that she cannot wear pants because she is a woman, and that she is commanded to wear skirts or dresses.”
However, the would-be employer has a dress code policy which mandates that employees wear pants.
Something had to give: The employer directed the agency not to hire her, and her offer of employment was withdrawn. Corporate dress policy would not bend to religious beliefs as to dress.
Takeaway #1: Title VII requires employers to provide a reasonable accommodation for religious beliefs unless unduly burdensome
An EEOC attorney said that “Federal law requires employers to fairly balance an employee’s right to practice his or her religion and the operation of the business. For an accommodation to be meaningful under Title VII, it both must respect the employee’s religious beliefs and permit her to do her job effectively.”
And accommodations are usually not that costly. Would it really have been an undue burden to permit this one employee to wear a dress or skirt? Was a policy of uniformity so important to this employer?
Indeed, another EEOC official stated previously that “Many times when there is a conflict between an employee’s religious beliefs and a work rule, there are easy modifications to company policy permitting an employee to continue to work without violating his religious beliefs.”
Religious Beliefs And Practices
In a large and diverse country there are religions and religious groups that have beliefs or practices that some do not understand – and often conflict with employer policies. And there have been many “failure to accommodate” religious discrimination cases which I have written about involving, among other groups, Evangelical Christians, Pentecostals, and Seventh Day Adventists.
The majority of religious discrimination cases which I have seen fall into two categories: those whose religious faith requires them to refrain from working on certain days, such as the Sabbath, and those, like this new case, whose religiously-required dress or grooming is not in compliance with a corporate “appearance policy.”
Appearance Policies And Accommodations
Title VII does not prohibit dress or grooming rules per se, as long as these rules do not have a “disparate impact” on, for example, employees who have religious beliefs (or also a disability) which require a certain dress or hair style. Title VII does, however, require an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.
Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.
A Missouri labor official nicely illustrated a couple of prohibitions some years ago: “For example, a particular hair style may be a tenet of the employee’s religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer).”
Recall the Disney “look’ policy,” and the Abercrombie & Fitch “look policy” – ultimately struck down – which was adopted to make sure that every employee embody a “preppy” brand image. A Muslim woman whose religion required her to wear a hijab, or head scarf, challenged the policy.
In early 2013 the EEOC filed a lawsuit alleging that a group of restaurants failed to accommodate a Muslim employee’s religious requirement that he wear a beard. The employee was a long-time practicing Muslim required by his religion to grow a beard without trimming or cutting it “unless it exceeds the length of his fist when holding his beard in his closed hand under his chin.” He was fired right after hiring after a higher up directed him to shave off his beard and refused his requested accommodation of wearing a “beard net,” which is similar to a hair net.
In another 2013 case similar to the current one, the EEOC filed suit in North Carolina on behalf of a Pentecostal restaurant employee whose religious beliefs forbade her to wear pants – which violated the company dress code policy. he was not provided an accommodation for her religious beliefs and was, in fact, fired for wearing a skirt.
The EEOC Guidance
In March 2014, the EEOC published a report on how employment discrimination law applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area.
Apropos of a then newly-filed case involving a Muslim police officer who refused to trim his beard under a new grooming policy, an EEOC spokesman said that “No employee should be forced to violate his religious beliefs in order to earn a living. Modifying a dress or grooming code is a reasonable accommodation that enables employees to keep working without posing an undue hardship on the employer.” (United States of America v. School District of Philadelphia, case number 2:14-cv-01334, Eastern District of Pennsylvania).
In its Guidance, the EEOC explained:
“Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”
Takeaway #2: Seeking an accommodation through an interactive process with the employee is a must!
Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at Richard.Cohen@fisherbroyles.com