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Commercial Litigation

You wore THAT to work???—New EEOC guidelines protect employee attire and grooming choices made on basis of religious beliefs

July 14, 2014

Commercial Litigation

You wore THAT to work???—New EEOC guidelines protect employee attire and grooming choices made on basis of religious beliefs

July 14, 2014

Back to Fish's Litigation Blog

 

The EEOC recently published guidelines describing how federal antidiscrimination laws apply to religious garb and grooming in the workplace.  Close up of long beard and mustache manWhile attire and grooming choices are often a matter of personal preference, employers should be aware that some forms of attire and grooming, including wearing skirts, long hair, dreadlocks, tattoos, facial hair, headcoverings, jewelry, and even carrying knives can be religious practices protected under Title VII.

The guidelines make clear that the definition of a religious practice is very broad and includes “religious beliefs that are new, uncommon, not a part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.”  As long as the practice is a sincerely held belief of the employee, it still qualifies for protection even if it is not a common practice within the employee’s religious group.  The employee need not be affiliated with a formal religious organization, and the guidelines also define religious practices to include those based on “non-theistic moral or ethical beliefs that are sincerely held with the strength of traditional religious views.”  Employees are protected even if their religious practice is new, or their practice is irregular or intermittent, as long as the belief is sincerely held.

According to the guidelines, employers are obligated to provide reasonable accommodations for sincerely held religious practices, unless the accommodation would cause an undue hardship for the employer.  The definition of “undue hardship” for these purposes is more than a de minimis cost or burden on the operation of the business, which is a more favorable standard for an employer than the ADA standard.  Undue hardships include safety, security, or health risks that cannot be mitigated through a reasonable accommodation.  However, employers should be careful to note that customer preference, coworker jealousy, and “image” are insufficient justifications for denying an accommodation, and exceptions to uniform policies may be required.  Additionally, employers cannot hide the employee out of sight of customers because of the employee’s religious dress.

Employers may offer an accommodation that includes covering the religious symbol (such as covering a religious tattoo while at work), but the accommodation will not be considered a reasonable accommodation if the employee’s sincerely held religious belief forbids covering the symbol.  If the accommodation proposed by the employee would cause an undue hardship, the guidelines encourage the employer to explore other possible accommodations that would be acceptable to both parties.  Employers should also note that the EEOC guidance may require exceptions to company weapons policies in the case of a Sikh employee who wishes to carry a kirpan (knife).

Because religious attire and grooming may appear, on the surface, to be a mere personal preference (such as dreadlocks, tattoos, or facial hair), an employer is only obligated to make accommodations or refrain from discrimination if the employer knows or believes that it is a religious practice.  For example, an employer may tell an employee with facial hair that company policy forbids facial hair.  If the employee informs the employer that it is a religious practice, then the employer must explore accommodations.  However, if the employee fails to tell the employer that his facial hair has a religious basis, and the employer does not know or believe that the facial hair had a religious purpose, then the employer is not responsible for accommodating the employee.  On the other hand, if the employer believes that the grooming or attire constitutes a religious practice, the employer may not discriminate on this basis even if the employee has not yet requested accommodations.  The guidelines provide the example of an employer who interviews a potential employee who is wearing what the employer perceives to be a religious headcovering.  The employer may not fail to hire the woman because it thinks that she will not comply with the uniform policy for religious reasons and may request accommodations if hired.

Finally, the guidance reminds employers that Title VII also protects employees from retaliation based on their requests for religious accommodation and from harassment in the workplace based on their religious attire or grooming.

 

Article co-authored with former Fish attorney, Stephen E. Fox

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employment
EEOC

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