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Mar 11, 2014

By Jane Ann Himsel

The Equal Employment Opportunity Commission (EEOC) has released two new technical assistance documents governing religious dress and grooming and Title VII compliance.

The first document, Religious Garb and Grooming in the Workplace: Rights and Responsibilities, discusses the interplay between employment discrimination law and religious dress and grooming practices, and outlines steps employers can take to avoid Title VII violations. The second document is a fact sheet that distils the information in the first document to a one-page guide.

What the EEOC guidance covers

The EEOC cites the following as examples of religious garb/grooming practices:

  • Wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross);
  • Observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts); and,
  • Adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

The EEOC notes it received 3,721 charges alleging religious discrimination in FY 2013, and that filings in this area have steadily increased over the years.

The guidance, which comprises 16 questions and answers, covers a variety of topics including:

  • Employer inquiries about the sincerity of the religious beliefs behind particular garb or grooming practices;
  • Whether an employer may take customer preferences into consideration;
  • Whether an employer may accommodate an employee by placing them in a non-customer contact position;
  • Conflicts with employer uniform or image policies;
  • What notice is necessary to trigger a discussion about reasonably accommodating particular religious garb/grooming practices; and,
  • When reasonable accommodation of religious garb or grooming is likely to cause employers undue hardship.

In most cases, employers must make exceptions

The agency emphasizes that in most instances, employers are required to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices, unless doing so presents an undue hardship.

The guidance does not show significant change in the EEOC’s long-standing views regarding the level of accommodation Title VII requires for religious garb/grooming practices. But it does provide a wealth of examples, most of which are based on cases the EEOC has litigated.

Question 7, Example 7, is particularly interesting because it presents a nearly identical fact pattern to EEOC v. Abercrombie & Fitch (2014). In Abercrombie, the Tenth U.S. Circuit Court of Appeals in Denver determined an employer will not be liable for failing to accommodate an applicant’s religious garb/grooming practice unless the applicant personally and explicitly tells the employer that the practice is religious and seeks an accommodation.

In the guidance, the EEOC makes it clear the agency continues to believe such explicit notice from an applicant is unnecessary. If the evidence shows that the employer thought a particular garb or grooming practice was religious and failed to hire an applicant because of it, then, absent proof of undue hardship, the employer will be liable for failure to accommodate. The EEOC will likely petition the U.S. Supreme Court for certiorari in Abercrombie in the near future.

Employers outside the Tenth Circuit (which includes the states of Colorado, Utah, Wyoming, New Mexico, Kansas, and Oklahoma) must read the guidance as a warning that the EEOC will not follow the Tenth Circuit’s decision unless the Supreme Court tells the agency it must do so.

This was originally published on Littler Mendelson’s Workplace Policy Update blog© 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.