EEOC Publication on Religious Garb and Grooming Provides Clarity

Yesterday, the EEOC issued a new publication that discusses employees’ rights with respect to religious grooming and dress in the workplace. The publication, Religious Garb and Grooming in the Workplace: Rights and Responsibilities, is written in question-and-answer form and addresses some of the most common issues that come up when workers require religious accommodations with respect to their clothing and grooming. It is meant to guide employees and employers; you do not need to be a lawyer to understand it.

In short, Title VII of the Civil Rights Act of 1964 requires employers to allow employees to follow their religiously-mandated dress and grooming practices unless it would pose an undue hardship. Under Title VII, employers are required to:

(Note that state law, the Fair Employment and Housing Act, also protects California workers who require religious accommodations. Federal civil rights laws, including Title VII, serve as a floor for workers’ rights.)

Here are some of the key points from the EEOC’s publication:

1. An employer must make an exception to its uniform/appearance policies unless it would be an undue hardship

An employer must accommodate an employee’s request for religious accommodation unless it would be an undue hardship. An employer can of course take into account issues of safety, security, and health. However, the employer should look to see if an accommodation is available that would allow the employee to adhere to religious practices without hardship. For example, in a food preparation environment, a worker can be required to wear a face mask if he has a beard.

2. Customer prejudices are irrelevant

An employer may not refuse to hire an employee or segregate them from customer views because of their religious garb:

If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.

EXAMPLE 3
Employment Decision Based on Customer Preference

Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew’s business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh’s perceived religion. Adarsh’s termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.

Similarly, an employer may not segregate an employee out of customer view because of their religious dress or grooming.

3. An employer who makes an exception to a policy as a religious accommodation does not need to make exceptions for secular reasons

How many times have you heard, “If I make an exception for you, I’ll have to make one for everyone else?” In this case, nonsense! As the EEOC explains:

When an exception is made as a religious accommodation, the employer may nevertheless retain its usual dress and grooming expectations for other employees, even if they want an exception for secular reasons. Co-workers’ disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference.

4. An employer should be careful about concluding than an employee’s religious practice is not “sincerely held”

An employer may wonder whether an employee’s practice is sincerely held, especially if it is new or observance is sporadic. According to the EEOC:

Title VII’s accommodation requirement only applies to religious beliefs that are “sincerely held.” However, just because an individual’s religious practices may deviate from commonly-followed tenets of the religion, the employer should not automatically assume that his or her religious observance is not sincere. Moreover, an individual’s religious beliefs – or degree of adherence – may change over time, yet may nevertheless be sincerely held. Therefore, like the “religious” nature of a belief or practice, the “sincerity” of an employee’s stated religious belief is usually not in dispute in religious discrimination cases. However, if an employer has a legitimate reason for questioning the sincerity or even the religious nature of a particular belief or practice for which accommodation has been requested, it may ask an applicant or employee for information reasonably needed to evaluate the request.

Here’s an example from the EEOC that I’ve seen come up:

Observance That Only Occurs at Certain Times or Irregularly
Afizah is a Muslim woman who has been employed as a bank teller at the ABC Savings & Loan for six months. The bank has a dress code prohibiting tellers from wearing any head coverings. Although Afizah has not previously worn a religious headscarf to work at the bank, her personal religious practice has been to do so during Ramadan, the month of fasting that falls during the ninth month of the Islamic calendar. The fact that Afizah adheres to the practice only at certain times of the year does not mean that her belief is insincere.

5. An employer must give accommodations, even when not asked, if obvious

An employer is not expected to be psychic. But if an employee’s need for accommodation is obvious, the employer should provide it.

6. A worker who requests an accommodation is protected from retaliation

A worker’s request for accommodation is a protected activity:

13. Are applicants and employees who request religious accommodation protected from retaliation?
Yes. Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.

EXAMPLE 20
Retaliation for Requesting Accommodation

Salma, a retail employee, requests that she be permitted to wear her religious headscarf as an exception to her store’s new uniform policy. Joe, the store manager, refuses. Salma contacts the human resources department at the corporate headquarters. Despite Joe’s objections, the human resources department instructs him that in the circumstances there is no undue hardship and that he must grant the request. Motivated by reprisal, Joe shortly thereafter gives Salma an unjustified poor performance rating and denies her request to attend training that he approves for her co-workers. This violates Title VII.

7. An employer has an affirmative obligation to stop harassment

An employer is liable for harassment, even when it comes from customers or third parties when it knew or should have known about the harassment but doesn’t correct it. (In California, an employer is strictly liable for supervisor harassment.) Religious harassment includes the following:

Religious harassment under Title VII may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment. Religious harassment may also occur when an employee is subjected to unwelcome statements or conduct based on religion. Harassment may include offensive remarks about a person’s religious beliefs or practices, or verbal or physical mistreatment that is motivated by the victim’s religious beliefs or practices.

Conclusion

Employees have a right to dress and groom in accordance with their religious beliefs and practices, so long as doing so does not cause the employer an undue hardship. Customer preferences are irrelevant, and employees may not be segregated because of their religious appearance. An employer must take steps to ensure that they are not harassed, and may not retaliate against them for requesting accommodations.

Consider reading the EEOC’s publication, Religious Garb and Grooming in the Workplace: Rights and Responsibilities, or its shorter Fact sheet for more information.

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