By Kristin Cifolelli, courtesy of SBAM Approved Partner ASE
In Fiscal Year 2013 the EEOC received 3,721 charges alleging religious discrimination. That number is on the rise, and many of the claims revolve around religious dress and grooming in the workplace. The EEOC is now trying to help. On March 6 the agency released new guidance on how Title VII applies to religious dress and grooming practices, and the employer’s responsibilities (see links below).
Employers have the right to establish and to enforce a dress code policy as a condition of employment. Most employers have some sort of dress code that outlines appropriate attire at work, and details what employees can and cannot wear. But that right only is legitimate as long as the policy 1) does not prohibit union and non-union employees to engage in protected concerted activity, 2) does not discriminate against certain groups, and 3) includes making accommodations for religious reasons.
Abercrombie & Fitch has repeatedly been in the news of late regarding its controversial “look policy.” The company faced three separate religious discrimination lawsuits filed by Muslim employees who wore the hijab (the religious headscarf) in violation of that policy. Last fall the clothing retailer agreed to pay $71,000 to settle two of the lawsuits and to change its dress code policy. The third case is pending on appeal.
While the EEOC guidance is not law, it offers advice based on cases the EEOC has litigated and gives insight as to how it would rule. The guidance provides very helpful Frequently Asked Questions (FAQs) and various scenarios of common situations that could require religious accommodation.
Title VII protects all aspects of religious observance, practice, and belief, and defines religion very broadly to include not only traditional organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.
Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship. The EEOC offers some of the following guidance regarding when an accommodation would be required:
- Requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.
- An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, not because the employer simply assumes it would pose an undue hardship.
- When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
- Neither co-worker disgruntlement nor customer preference constitutes undue hardship.
Oftentimes an employer may question whether an applicant or an employee’s religious practice is “sincerely held.” As noted in the EEOC compliance manual the following factors, alone or in combination, might bring into question an employee’s assertion that he or she sincerely holds a religious belief:
- Whether the employee has behaved in a manner markedly inconsistent with the professed belief
- Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons
- Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons)
- Whether the employer otherwise has reason to believe the accommodation is not being sought for religious reasons
If an employer has a legitimate reason for questioning the sincerity or the religious nature of a particular belief for which accommodation has been requested, it may ask that employee or applicant for information reasonably needed to evaluate the request.
Ultimately managing any type of dress code issue for employers is a sensitive matter.The NLRB has further complicated the issue by labeling some dress practices protected concerted activity.
Employers should always review any requests for dress code accommodations due to religious reasons on a case-by-case basis in order to avoid claims of Title VII discrimination. In addition, they should take pains to train their managers on how to respond to such requests for accommodation, since such requests generally come to them first.