Religious discrimination charges filed with the Equal Employment Opportunity Commission have risen substantially in recent years. The EEOC reports that in fiscal year 1997, it received 1,709 charges of religious discrimination—a number that more than doubled by fiscal year 2013 to 3,721. In response to the growing number of allegations, the EEOC has released a new guide and fact sheet that attempt to clarify how employers should respond to requests for accommodation and avoid religious discrimination in the workplace.
“Religious Garb and Grooming in the Workplace: Rights and Responsibilities” and the corresponding fact sheet explain that in most cases, for employers with at least 15 employees, Title VII of the Civil Rights Act protects the employee or job applicant’s right to observe their religion through dress and grooming. Title VII also protects employees from harassment based on their religious attire and grooming and outlaws retaliation if they file a complaint with the EEOC.
Under the law, companies must make exceptions to their normal rules on grooming and dress to accommodate employees and applicants with sincerely held religious beliefs, unless doing so would pose an undue hardship for the company. The EEOC advisory makes it clear that the most of the time, it’s pretty difficult to prove that there is an undue hardship involved.
“About the only times we’re seeing successful challenges are in settings where human contact is really necessary, where trust is necessary, where identification is necessary,” Howard Mavity, a partner at Fisher & Phillips, told CorpCounsel.com. For example, in law enforcement, an employer could arguably prevent employees from covering up a certain part of their body, such as their face, as members of the public might feel they need to identify the employee to feel physically safe.
The updated EEOC guidance reminds employers that the oft-cited issues of corporate brand or image cannot serve as excuses for treating an employee or applicant differently due to their preference for wearing religious garb or grooming in the workplace. Denying an applicant the chance to get a job because his or her attire does not conform to the company’s image is illegal under Title VII, as is segregating an employee because of religious dress or grooming. For example, if an employer moves an employee away from a customer service position and into a “back room” because of fear that customers might somehow be offended by the employee’s religious attire, the employee would be justified in filing an EEOC complaint. The advisory states explicitly: “[C]ustomer preference is not a defense to a claim of discrimination.”
There’s also the issue of retaliation against those who request accommodation for their religious garb or grooming preferences. The EEOC presented the example of an employee who complains to HR when she is not allowed to wear a religious headscarf in the workplace, and is then given an unjustified bad performance rating from her supervisor. The law, as interpreted by the EEOC, prohibits retaliation against those who speak up, file a charge with the commission, or participate in EEOC investigations or EEO proceedings.
Troublingly, Mavity said, company leaders and human resources are often cognizant and careful of the danger of religious discrimination in the workplace, but the supervisors managing the day-to-day work of employees may not be. According to Mavity, in many cases employers are not even aware that a supervisor might be allowing discrimination against an employee or failing to accommodate their religious beliefs. “Most employers are horrified that they are suddenly being accused of religious discrimination,” he said.
Besides drafting more thoughtful and comprehensive policies on these issues, Mavity recommended better manager and employee training that takes on the challenges posed by increasingly diverse U.S. workforces and the growing number of charges filed.
“There have been many changes [in the workplace] in the last few years, but I don’t really see training keeping up with it,” he said, adding that in many companies, supervisors only get training once a year—if they’re lucky. Therefore, they may not understand the basics of compliance, such as what discrimination and retaliation are like in practice, and how important it is to keep treatment of employees compliant with applicable law and consistent over time.
Mavity sees the new EEOC publications as an opportunity for employers to update their training and policies, and to remind the entire workforce just how important it is to cultivate a work environment that is respectful of religious beliefs.