As employers have become increasingly aware, Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on religion, including religious practices. The result of this prohibition against religious discrimination is that employers are required to reasonably accommodate employees' sincerely held religious practices except in cases where such an accommodation would impose an undue burden on the employer. Often, this results in an employer being forced to make exceptions to their existing policies and rules in the workplace.
Consistent with Title VII, the United States Equal Employment Opportunity Commission ("EEOC") recently provided employers with new guidance regarding religious workplace accommodations. Religious Garb and Grooming in the Workplace: Rights and Responsibilities, issued by the EEOC, provides guidance to employers in accommodating employees religious requests and practices, including clothing, religious dress, head coverings, hair styles, and facial hair. The document contains twenty-one case-specific examples of religious accommodation to guide employers. According to the EEOC guidance:
Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).
In the document, the EEOC points out that the number of religious discrimination charges filed against employers has nearly doubled since 2007. As a result, the EEOC reminds employers that the definition of "religion" has been interpreted very broadly in the Title VII context, including religious beliefs that are "new, uncommon, not part of formal church or sect, only subscribed to by a small number of people or that seem illogical or unreasonable to others" or beliefs that are based on some non-theistic moral or ethical code or system. The EEOC points out that "[b]ecause this definition is so broad, whether or not a practice or belief is religious typically is not disputed in Title VII religious discrimination cases."
Some of the case specific examples provided by the EEOC in the document include the following:
What if an employer questions whether the applicant's or employee's asserted religious practice is sincerely held?
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.
EXAMPLE 1 | New Observance
Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli's observance can be sincerely held even though it is recently adopted.
EXAMPLE 2 | 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.
Can an employer exclude someone from a position because of discriminatory customer preference?
No. 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.
Employers may be able to prevent this type of religious discrimination from occurring by taking steps such as training managers to rely on specific experience, qualifications, and other objective, non-discriminatory factors when making employment decisions. Employers should also communicate clearly to managers that customer preference about religious beliefs and practices is not a lawful basis for employment decisions.
Prudent employers should carefully review this document from the EEOC, as well as their existing policies and practices to insure that they are consistent with the EEOC guidance. Additionally, many of the case specific examples provided by the EEOC should be incorporated in workplace training to insure that all employees, particularly managers and supervisors, understand what behavior is prohibited under Title VII.