New Challenges for Employers: EEOC Issues New Guidelines on Employee Rights Regarding Religious Dress and Grooming Accommodations
By Marissa M. Henderson, Ventker & Warman PLLC
Writing an employee dress code that complies with Title VII has become trickier than ever. On May 6, 2014, the Equal Employment Opportunity Commission issued a fact sheet and a set of guidelines for dealing with real world issues, ranging from requests to wear hair in dreadlocks to miniature, concealed carry swords of the Sikh faith. For employers, the lessons to be gleaned from these new guidelines are the following:
1. Employers do not have the right to question whether an employee’s request is based on sincere religious convictions. The new guidelines give no guidance as to how or even whether an employer can inquire if a religious belief and related request is sincere. Indeed, the fact sheet explains how incredibly broad the definition of religious beliefs is, encompassing beliefs that are “new, uncommon…. only subscribed to by a small number of people . . . or may seem illogical or unreasonable to others.” The EEOC states that the sincerity of an employee’s stated religious belief “is usually not in dispute.” Until we know how courts will rule in this area, it is advisable to steer clear of questioning the sincerity of a religious belief. Unless, of course, an accommodation request is truly laughable. Then take your chances and ask the question. But know you will be taking your chances, in the EEOC world.
2. Undue hardship is a steep standard, almost reduced now to nothing except health or safety concerns that justify a denial of a religious accommodation. And the employer better have some evidence to back up a denial for health or safety reasons. The guidelines slant so heavily in favor of religious accommodation that customer disapproval or a desire to have a neat and tidy workforce do NOT count as undue hardship. This seems almost laughable but is sadly true: if your customers are turned off and turn out of your store or workplace because an upfront employee has what customers see as a disgusting tattoo or hair or attire, the employee’s rights trump if he says the particular garb or grooming is based on his religious beliefs, per the EEOC.
3. Decisions must be made on a case by case basis, reviewing each request within the context of an employee’s specific job to determine if a religious accommodation can be made. For example, a man requesting to wear a long beard may be safe for an office worker but not safe for a factory worker around heavy machinery. What this means practically is there can be no blanket policy for a workplace to be, for example, free of head coverings or for all men to be clean shaven.
Claims of religious discrimination have doubled in the past 15 years, reflecting perhaps adjustments to a more religiously diverse American workplace. Employers should be aware that the EEOC seems to have religious discrimination in its sites, and, if the courts agree, employers’ hands will largely be tied in dealing with requests for religious garb or grooming accommodations. For further information, see the 2008 EEOC Compliance Manual on Religious Discrimination, which the new guidelines were meant to supplement.