EEOC Issues Guidance Regarding Religious Dress and Grooming Practices

The Equal Employment Opportunity Commission (“EEOC”) — the federal agency responsible for the enforcement of federal anti-discrimination laws — recently issued guidance on religious accommodation under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically focusing on religious dress and grooming practices. The publication, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” along with its accompanying Fact Sheet, are designed to assist employers to comply with their legal responsibilities under Title VII.

Expansive Interpretation of “Religious Practice or Belief”

The EEOC takes a broad view on “religious practice or belief” protected by Title VII, including those practices or 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,” as well as practices based on “theistic beliefs or non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views.”

More specifically, the EEOC guidance provides the following examples of religious dress and grooming practices an employer may encounter in the workplace:

• wearing religious clothing or articles (e.g., a Christian cross, a Muslim hijab (headscarf), a Sikh turban, a Sikh kirpan (symbolic miniature sword));
• observing a religious prohibition against wearing certain garments (e.g., a Muslin, Pentecostal Christian, or Orthodox Jewish woman’s practice of wearing modest clothing, and of not wearing pants or short skirts); or
• adhering to shaving or hair length observations (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

Is the Religious Belief “Sincerely Held?”

The guidance makes clear that Title VII’s religious accommodation requirements apply only to those religious beliefs that are “sincerely held” by the employee. The EEOC also opines that Title VII applies to any practice “motivated by a religious belief,” even if other people may engage in the same practice for secular reasons. However, dress or grooming practices that are purely a matter of personal preference are not afforded protection under Title VII. The EEOC cautions, however, that while the “sincerely held” requirement is usually not in dispute in religious discrimination cases, if an employer has a legitimate reason for questioning the sincerity or even religious nature of the particular belief or practice, it may ask for information “reasonably needed” to evaluate the request.

When Must An Employer Provide A Reasonable Accommodation?

“In most instances,” according to the guidance, “employers covered by Title VII . . . must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices.” unless it would pose an “undue hardship” to the employer.

Relying on an admittedly lower standard than the “undue hardship” defense in the context of a discrimination claim under the Americans with Disabilities Act (“ADA”), the guidance states that, for purposes of religious discrimination under Title VII, undue hardship has been defined by the courts as a “more than de minimis” cost or burden on the operation of the employer’s business. The guidance provides an example that if a religious accommodation would impose more than “ordinary administrative costs,” it would pose an undue hardship. Also, an employer can deny an accommodation based on workplace safety, security, or health reasons provided it poses an undue hardship.

Importantly, however, an employer is not permitted to rely upon the preferences of others, including customers, clients, or co-workers to demonstrate that the requested accommodation would pose an undue hardship. Similarly, an employer’s reliance on the broad rubric of “image” or marketing strategy to deny a requested religious accommodation may be tantamount to a customer preference in violation of Title VII.

What Is An Employer To Do?

In light of the EEOC’s renewed focus on religious discrimination under Title VII, employers should conduct regular training of their workforce and instruct them to rely upon non-discriminatory factors when making employment decisions. Any request for a religious accommodation should be made on a case-by-case basis and always after a consideration of all the facts and circumstances of the employee’s particular request. Further, when faced with a request for an accommodation, employers must be familiar with the many types of religious practices and beliefs that may be afforded protection under the law. Companies should also take this opportunity to review their employee manuals, practices, and policies with outside counsel to ensure that they are complying with their legal obligations under Title VII and relevant state law.

Gibbons Employment & Labor Law Department attorneys regularly handle discrimination and related matters and litigation.