The U.S. Equal Employment Opportunity Commission (“EEOC”) received 3,721 charges alleging religious discrimination in fiscal year 2013.  In partial response to these charges, earlier this month, the EEOC issued new technical assistance publications addressing religious dress and grooming in the workplace under Title VII of the Civil Rights Act of 1964 (“Title VII”).  Given the heightened attention the EEOC will likely give to religious discrimination issues, the following is general guidance on Title VII’s religious garb and grooming requirements and best practices, which employers should keep in mind in order to help reduce the potential for Title VII violations.

Title VII generally requires most private-sector, and state and local government employers with 15 or more employees to allow applicants and employees to follow dress and grooming practices pursuant to their religious exercise, unless doing so would pose an undue hardship on the operation of the employer’s business.

Employers often ask the following questions when assessing whether and to what extent a religious accommodation(s) is required:

What Is a Religious Practice?  Title VII broadly defines “religion” to include spiritual beliefs that are uncommon, not part of a formal church or sect, or only subscribed to by a small number of people.  An employee’s belief or practice can be “religious” even if it is not followed by others in the same religious sect, denomination, or congregation.  In fact, religious organization affiliation is not a condition for a religious accommodation.  A practice need only be “sincerely held” to be protected under Title VII regardless of whether it seems illogical or unreasonable to non-practitioners.  Due to this broad definition, the religious nature of a practice or belief typically is not in dispute in religious discrimination cases.

What Qualifies as Garb and/or Grooming Religious Practices?  Expressions of religious observance are frequently seen throughout the day.  Some common examples include the Christian cross, Jewish Star of David, Muslim hijab, and Sikh turban.  Shaving practices and hair lengths also are expressions of religious practice.  In addition to requiring employers to accommodate employees’ clothing and grooming religious observances, the law also prohibits non-religious organizations from making an employee wear religious attire or participate in religious grooming to which the employee objects.

What Is a Religious Accommodation?  Religious accommodations come in many forms.  For example, if an employee’s religious beliefs permit covering a religious item, that would be considered an accommodation.  When an employer requires employees to wear specific uniforms, a reasonable accommodation may be to modify that uniform.  For example, if specially designed pants are part of the required uniform, and the employee’s religion proscribes the same, a reasonable accommodation could be permitting the employee to wear a close-fitting, long skirt of the same color and style as the pants.  Another prevailing occurrence is permitting an employee to style his or her hair in a ponytail when his or her religious practice is to wear their hair long.  While in some cases, uniformity of appearance may be so important that modifying the dress or grooming code could be argued to pose an undue hardship, the EEOC skeptically reviews such claims.  As such, we recommend making case-by-case determinations concerning religious accommodations.

What If I Do Not Believe that a Requested Accommodation Is Truly Based on a Religious Observance?  If employers have a legitimate reason to question whether an observance is “sincerely held,” they may ask the requesting applicant or employee for information reasonably calculated to assess his or her request.  Otherwise, it is advisable to accept the employee’s demand as covered by Title VII.  Significantly, an employee’s religious belief—and degree of adherence thereto—may change over time and not affect its sincerity.

Must an Applicant or Employee Request a Specific Religious Accommodation?  Often, applicants or employees inform their employers of their need for a religious accommodation when the employer notifies them of any dress and/or grooming policy.  There are no magic words that trigger an employer’s reasonable accommodation duties.  Employers are likewise permitted to discuss the parameters of any request for such an accommodation with the requesting party.  At times, it may be obvious that an applicant or employee’s practice is religious and conflicts with a work policy, thereby necessitating a religious accommodation, absent a demand to that effect.

What Constitutes an Undue Hardship?  The courts typically define “undue hardship” as a “more than de minimus” fee or burden on the operation of the employer’s business.  A good indication that a proposed religious accommodation constitutes an undue hardship is if the cost imposed by that accommodation would exceed an ordinary administrative charge.  Safety, security, or health may justify denying an accommodation request in a given situation; however, the employer may do so only if the accommodation would actually impose an undue hardship.  Co-worker disgruntlement or jealousy is not an undue hardship.

My Employee’s Religious Practice Is Upsetting My Customers.  Can I Transfer My Employee to a Non-Customer-Facing Position?  No.  In most cases, materially changing an employee’s job in response to customer comments regarding the employee’s religious practice is considered a discriminatory act in violation of Title VII.  The law proscribes limiting, segregating, or classifying employees based on religion, particularly the discriminatory preferences of others, including customers, clients, or co-workers.  The EEOC provides instructive guidance on this topic:

Nasreen, a Muslim applicant for an airport ticket counter position, wears a headscarf, or hijab, pursuant to her religious beliefs.  Although Nasreen is qualified, the manager feels that customers may think an airport employee who is identifiably Muslim is sympathetic to terrorist hijackers.  The manager, therefore, offers her a position in the airline’s call center where she will only interact with customers by phone.  This is religious segregation and violates Title VII.    

I Made One Religious Accommodation.  Now Am I Also Required to Accommodate All of My Employees?  No.  An employer does not waive any usual dress and/or grooming policy it may have by making a proper religious accommodation and is not required to permit similar accommodations for secular reasons.  

The EEOC can be expected to respond to religious discrimination charges aggressively in the coming year.  To help shield themselves from such allegations, employers should proactively reinforce the above-described principles through managerial and employee training and policies.  Baker Hostetler attorneys are available to assist employers in their efforts to comply with applicable state and federal laws and regulations.