Recently published Equal Employment Opportunity Commission (“EEOC”) guidelines address employer obligations to accommodate employees’ religious dress and grooming practices. The guidelines do not have the force of law; however, courts frequently defer to standards established by the EEOC. According to the guidelines, employers have to accommodate employees’ religious garb and grooming practices, unless doing so would create an undue burden.
Employer Knowledge
The guidelines note that employers are not liable for accommodations that are not requested. Consider an employer who informs an employee of company policy requiring men to keep their hair short. If that employee fails to notify his employer that he maintains peyes (side-locks) as part of his Jewish faith, and also refuses to comply with company policy, the employer may terminate the individual without considering an accommodation. However, employees may make a request implicitly. In the above example, had the employee simply told his employer that his peyes were part of his religious practice, the guidelines consider it sufficient to request an accommodation.
Undue Burden
Employers may refuse to accommodate a religious grooming or dress practice if safety, security, or health concerns motivate the refusal. However, the guidelines only sanction this type of refusal if the religious “practice actually poses an undue hardship on the operation of the business.” The guidelines suggest that in most cases there will be an accommodation that would permit the employee to observe religious practice and allow the employer to prevent undue hardship.
The guidelines include many examples of scenarios that do not create an undue burden on employers. One of the more commonly misapplied rationales is the termination of an employee on the basis of customer preference. For example, if a coffee shop notices a drop in patronage after hiring a new cashier, who wears a Sikh turban as part of his religious practice, the business may not fire him to suit its customers’ interests.
The EEOC also prohibits the separation of employees on the basis of those individuals’ religious beliefs or practices. However, the guidelines also prohibit moving an employee to another position in reaction to religious practice. For instance, in the coffee shop example above, the employer could not move the Sikh cashier to a position in the back office to appease customer preference.
Employers must provide reasonable accommodations for exceptions from company dress codes, when accommodations are requested for religious reasons. Accommodations are permitted on a personal basis, so granting one employee an exception does not extend the same exception to his or her coworkers. Employers need to carefully consider any request for an accommodation for religious grooming or dress practices.
Unconventional Practices
No matter how unusual a religious tenet may seem, an employer may not refuse to accommodate an employee due to unfamiliarity with a particular practice or belief. Dress or grooming practices that differ from the commonly-accepted religious tenets may not be rejected for their eccentric character. As long as the practice stems from a sincerely held religious belief, employers must consider a request for accommodation.
Generally speaking, courts are unwilling to evaluate the sincerity of a religious belief in the absence of strong evidence to the contrary. The guidelines include an example of a drive-thru cashier converting to an ancient Egyptian religion, to which fewer than ten people belong. After several months of employment the employee acquires a forearm tattoo demonstrating dedication to Ra, the Sun God. If the employee believes that covering his tattoo would symbolically renounce his faith, asking him to cover his tattoo while at work would not be an acceptable accommodation. If, however, covering the tattoo would not be a violation of the employee’s faith, covering it at work would be a reasonable request by the employer.
Sudden change in habit will not be enough to demonstrate insincerity of a practice or belief. The guidelines recognize that a religious practitioner’s degree of adherence can change over time. If after two years of employment an individual begins wearing a Muslim hijab (headscarf), her request for an accommodation must be taken seriously. Furthermore, if she does not wear the hijab except during the month of Ramadan, her request is no less deserving of accommodation. Employers need to refrain from evaluating the sincerity of an employee’s religious belief.