New Guidance From EEOC on Religious Garb and Grooming in the Workplace

Last week, the EEOC issued two new technical assistance publications related to workplace rights and responsibilities regarding religious dress and grooming under Title VII. The two publications issued by the EEOC are a question and answer guide, titled “Religious Garb in the Workplace: Rights and Responsibilities” and a fact sheet to accompany this publication (found at http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm).

According to the EEOC press release regarding these publications, religious discrimination charges have been steadily increasing and the EEOC received 3721 charges asserting religious discrimination in fiscal year 2013.

According to the EEOC’s question and answer guide, examples of religious dress and grooming practices include wearing religious clothing or articles, observing a religious prohibition against wearing certain garments, or adhering to shaving or hair length requirements. The question and answer guide covers the general types of religious discrimination, including disparate treatment, denial of reasonable accommodation, workplace or job segregation based on religion, workplace harassment based on religion, and retaliation for requesting an accommodation or engaging in a protected activity.

The question and answer guide also addresses some other discrete issues. The guidance provided by the EEOC with regard to religious discrimination includes the following:

• Title VII also applies to religious beliefs that are new, uncommon and/or not part of a formal church or group—even if only subscribed to by a small number of people
• Even though dress and grooming practices are the type engaged in by others for non-religious reasons, Title VII may still apply to the practice if it is motivated in an employee’s case by a religious belief
• Only religious beliefs that are “sincerely held” are protected under Title VII.  However, the fact that a practice may deviate from commonly followed tenets of that religion does not mean the observance is not sincere.  Additionally, just because an employee’s belief is recently adopted (or changed) does not mean it is sincerely held.
• Customer preference is not a defense to a claim of religious discrimination—and employers may not assign employees to non-customer contact positions because of such preference.
• Employers must accommodate an applicant or employee’s religious garb or grooming practice unless it would be an undue hardship –meaning more than a de minimis cost or burden on the operation of the business, even where based on safety, security or health reasons.
• If the beliefs allow the covering of religious attire or item, employer can require an employee to cover the attire or item.
• Religious harassment may include offensive comments about a person’s religious beliefs or practices or verbal or physical mistreatment motivated by the victim’s religious beliefs or practices.  Just as in other Title VII contexts, an employer is liable for co-worker or third party harassment where it knew or should have known about the harassment and failed to take prompt and corrective action and an employer is liable for supervisor harassment if it results in tangible employment action or if the employer fails to exercise reasonable care to prevent and correct any harassing behavior on the part of the supervisor and the harassed employee did into take advantage of ways to address the situation, such as a complaint procedure.