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Of Hijabs, Short Skirts and Rastafarian Locks
EEOC gives practical examples of religious garb and grooming discrimination

By Dana Wilkie  3/10/2014
 

The Equal Employment Opportunity Commission (EEOC) has issued a new publication addressing workplace responsibilities regarding religious dress and grooming under Title VII of the Civil Rights Act of 1964.

In a question-and-answer guide, released March 6, 2014, the commission gave employers practical advice about the law by offering examples based on EEOC litigation.

Clothing and Grooming Discrimination  

In fiscal year 2013 the EEOC received 3,721 charges alleging religious discrimination—a number that has more than doubled since FY 1997, when 1,709 charges were filed.

Employers covered by Title VII must make exceptions to their rules or preferences so applicants and employees can follow religiously mandated dress and grooming practices unless an exception would pose an undue hardship on the  business. 

The new guidance points out that examples of religious dress and grooming practices include wearing religious clothing or accessories, such as a Muslim hijab (headscarf), a Sikh turban or a Christian cross; observing a religious prohibition against wearing certain garments, such as Muslim, Pentecostal Christian or Orthodox Jewish women's practice of not wearing pants or short skirts; or adhering to shaving or hair-length observances, such as a Sikh’s uncut hair and beard, Rastafarian dreadlocks or Jewish peyes (sidelocks).

Legal Considerations

Title VII’s prohibitions against religious discrimination apply not only to “traditional, organized religions … 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,” the EEOC’s question-and-answer document states.

Title VII's accommodation requirement applies only to religious beliefs that are “sincerely held,” something that’s typically not disputed in religious-discrimination cases. The EEOC cautioned that just because an individual's religious practice may deviate from commonly followed tenets of the religion, the employer can’t assume that the religious observance isn’t sincere. Moreover, companies must recognize that people’s religious beliefs—or degrees of adherence—may change over time yet still be sincere.

The commission offered this example from its previous cases: During the two years that Eli worked at Burger Hut he wore his hair short. He grew it long when he became a newly practicing Nazarite. The company’s policy required male employees to keep their hair short. Regardless, Eli's observance was sincerely held even though he had just recently adopted it.

Customer Complaints

Customer preference is not a defense against a discrimination claim. If a business takes an action based on the preferences of others, including customers, clients or co-workers, it is unlawfully discriminating based on religion.
For instance, an employer can’t assign someone to a non-customer-contact position or to a backroom job because the worker’s religious dress or grooming offends customers.

An employer “is not permitted to segregate an employee due to fear that customers will have a biased response to religious garb or grooming,” the EEOC’s document states. “The law requires the employer to make an exception to its policy or practice as a religious accommodation, because customer preference is not undue hardship.”

The EEOC, in its Q&A, outlined the case of Nasreen, a Muslim applicant for an airport ticket-counter position who wore a headscarf because of her religious beliefs. The manager feared that customers might think that an airport employee who was identifiably Muslim was sympathetic to terrorist hijackers, so the supervisor offered her a post in the airline's call center, where she would interact with customers by phone. “This is religious segregation and violates Title VII,” the EEOC wrote.

“Employers may be able to prevent this type of religious discrimination … 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.”

Exceptions to Policies

Employers are typically required to make exceptions to their usual rules or preferences to allow applicants and employees to observe religious dress and grooming practices. When an employer makes an exception, it may still enforce its dress and grooming rules for other workers even if the latter want an exception for secular reasons. “Co-workers' disgruntlement or jealousy about the religious accommodation is not considered undue hardship,” according to the EEOC.

For example, Ruth was a front-desk attendant at a sports club where the manager required employees to wear tennis shorts. Ruth asked to wear a long skirt because her religion demanded that women dress modestly. The club agreed, but if other employees wanted similar exceptions for nonreligious reasons, it could deny their requests.

What Employers Can Do

An organization can still accommodate an employee's religious dress or grooming practice by asking the individual to cover the religious attire or item while at work. “However, 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,” the EEOC wrote.

Employers may also prohibit an employee's religious dress or grooming practice based on workplace safety, security or health concerns—but only if the practice actually poses an undue hardship on business operations.

The commission explained this concept with an example: Mirna claimed that the factory where she worked fired her because her Pentecostal beliefs prohibited wearing pants. The factory concluded that allowing her to wear a skirt would jeopardize her safety because she worked around dangerous machinery. But because there was no evidence that wearing a close-fitting skirt would pose a safety risk, Mirna’s accommodation request didn’t pose an undue hardship on the factory.

Dana Wilkie is an online editor/manager for SHRM.

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