Earlier this month, the EEOC issued a guidance on religious garb and grooming in the workplace. In general, employers covered by Title VII of the 1964 Civil Rights Act must make exceptions to their usual policies and rules to permit applicants and employees to follow religious dress and grooming practices. Examples of religious dress and grooming include (but are not limited to):
- Wearing religious clothing or articles, such as a Christian cross, a Muslim hijab (a headscarf), a Sikh turban, a Sikh kirpan (a symbolic miniature sword);
- Observing a religious prohibition against wearing certain garments, such as not wearing pants or short skirts;
- Adhering to shaving or hair length observances, such as Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyos (long side locks).
Employers with at least 15 employees are subject to Title VII.
Title VII prohibits disparate treatment based on religious belief or practice, or lack thereof. With the exception of employers that are religious organizations (as defined in Title VII), an employer cannot exclude someone from a job based on discriminatory religious preferences. This includes preferences of customers, clients, or coworkers. Customer preference is NOT a defense to a claim of discrimination.
An employer cannot engage in job segregation based on religion, including religious garb and grooming practices. This means an employer cannot assign an employee to a non-customer contact position because of an actual or assumed customer preference.
Once the employer is on notice that a religious accommodation is needed for a sincerely-held religious belief or practice, the employer must make an exception to company dress and grooming requirements, unless it would pose an undue hardship. However, an employer can bar a particular religious dress or grooming practice based on workplace safety, security, or health concerns, but only if the circumstances actually pose an undue hardship on the operation of the business. Neither co-worker disgruntlement nor customer preference constitutes undue hardship.
“Undue hardship” in this context is defined as more than a de minimis cost or burden. According to the EEOC, if a religious accommodation would impose more than an ordinary administrative cost, it would pose an undue hardship. This is a lower standard for undue hardship than under the Americans with Disabilities Act (the “ADA”).
No particular “magic words” are needed for an employee to request a religious accommodation. He or she does not have to reference Title VII, for example. He merely has to inform the employer that his particular requested exception is based on religious reasons. If the employer needs more information, the employer and employee should discuss the request.
When an employer does make an exception as a religious accommodation for a certain employee, it does not have to make similar exceptions sought by other employees for secular reasons. For example, if the employer generally has a no-facial-hair policy, and makes an exception to that policy for a Sikh or Orthodox Jewish employee, it does not have to make similar exceptions for other employees that are not Sikh or Orthodox Jewish.
It is unlawful to retaliate against an employee for exercising his or her right to request religious accommodation, including regarding clothing and grooming practices. Title VII also prohibits workplace harassment based on religion, which may occur if an employee is required or pressured to abandon, alter or adopt a religious practice as a condition of employment. Harassment also may occur if an employee is subjected to unwelcome remarks or conduct based on religion.
Employers should advise their supervisory personnel of the new rules, and may want to update personnel manuals as well.
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