EEOC Issues New Guidance on Religious Dress and Grooming in the Workplace

Dress and grooming policies have been on the Equal Employment Opportunity Commission’s radar for several years. For example:

• In April 2013, the EEOC won a long battle against clothing retailer Abercrombie & Fitch, in which the agency had argued that the company had failed to accommodate a job applicant’s Muslim faith by refusing an exception to its “Look Policy” for her religious head scarf.
• In September 2010, the EEOC sued a Virginia moving company that refused to hire a Rastafarian because of his dreadlocks.

Other examples of religious garb or grooming that could conflict with workplace policies include a Sikh turban, a Pentecostal Christian or Orthodox Jewish woman’s practice of not wearing pants or short skirts, or hair length observances such as Sikh uncut hair and beard, or Jewish peyes.

These examples ask an important question, which, last week, the EEOC attempted to answer. When must an employer grant an exception to its facially neutral dress or grooming policy as an accommodation of an employee’s religion?

Before we delve into this question, however, you need to understand the legal framework in which this question exists.

“Religion” is among the classes that Title VII protects from workplace discrimination. Religion, however, is unique under Title VII. Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. In this context, undue hardship is a low standard — the proposed accommodation need only pose more than a de minimis cost or burden.

Because of the uniqueness of this issue, and its growing importance in our multicultural workplaces, last week the EEOC published a question-and-answer guide, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.” This guide addresses how Title VII applies to religious dress and grooming practices, and what steps employers should take to meet their legal responsibilities in this area.

According to the EEOC, Title VII prohibits an employer from doing any of the following:

1. Holding garb and grooming worn for religious reasons to the same standards as that worn for non-religious reasons.According to the EEOC, “Title VII applies to any practice that is motivated by a religious belief, even if other people may engage in the same practice for secular reasons.” To qualify for protection, however, the belief must be grounded in religious beliefs, and not just personal preference. Thus, an employee who wears dreadlocks for a religious purpose (e.g., a Rastafarian) is protected, while one wearing the same hairstyle for a fashion statement is not.

2. Excluding someone from a position because of discriminatory customer preference. Customer preference is not a defense to a claim of discrimination. In illustrating this point, the EEOC uses the example of a Sikh, who wears a turban for a religious purpose, denied a job at a coffee shop because the customers would mistake him for a Muslim, which drives away business. That failure-to-accommodate, according to the EEOC, is illegal.

3. Assigning an employee to a non-customer contact position because of customer preference, or in support of a corporate “image” or marketing strategy.  Just like an employer can’t refuse to hire someone because of customer preference, it also can’t hide the employee in a back room for the same reason. It violates Title VII for an employer to segregate an employee out of fear that customers will have a biased response to religious garb or grooming.

4. Automatically refusing to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy or preference regarding how employees should look. A policy that automatically refuses an accommodation ignores an employer’s obligation under Title VII to provide the accommodation unless it imposes an undue hardship.

5. Retaliating against someone because he or she requested a religious accommodation.

What can an employer do, according to the EEOC?

1. Accommodate an employee’s religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work, provided that such covering does not violate the employee’s religious beliefs.

2. Bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns, provided that the practice actually poses an undue hardship on the operation of the business.

To synthesize these Q&As into one cohesive takeaway, employers should train managers and employees that the law may require making a religious exception to an employer’s otherwise uniformly applied, and facially neutral, dress or grooming rules, practices, or preferences. This training should include the reasonable accommodation process, and the importance of avoiding stereotypes based on dress or grooming.

This post originally appeared on Law.com.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.