On October 4, 2013 we discussed on the blog how Abercrombie & Fitch was being
sued for religious discrimination when the Equal Employment Opportunity Commission
(EEOC) claimed it fired a Muslim employee for wearing her hijab in the
workplace, rather than accommodating her religious beliefs.
Shortly after this decision the EEOC published new guidelines on
religious accommodation and discrimination in the workplace. The EEOC has
clarified its position about employers’ duty to accommodate particular beliefs
and practices, as well as the standards for employers to show that a requested
accommodation would cause “undue hardship,” that is, “more than de minimis
cost." The new guidelines reiterate that religious accommodation is
particularly fact-sensitive and must be handled carefully.
Title VII requires an employer, once on notice that a religious
accommodation is needed for sincerely held religious belief or practice, to
make an exception to dress and grooming requirements or preferences, unless it
would pose an undue hardship. The guidelines emphasize that
accommodations are not required if the employer would suffer undue hardship.
This determination will be made on a case-by-case basis by the EEOC,
where the EEOC considers the potential burden of the conduct of the employers’
business in addition to monetary costs. Morale problems as a result of an
accommodation would normally not qualify as an undue hardship, but a shift swap
that would require the employer to pay premium wages for an extended period of
time would likely qualify as an undue hardship.
Religion is defined very broadly under federal law to include
mainstream faiths and practices, but also to include beliefs that are not
recognized by any church or organization. The distinction between religious
beliefs and personal choices, is illustrated with an example in the new
guidelines. A Seventh-day Adventist who believes the scriptures require
her to be a vegetarian – even though not all Adventists share that belief is a
religious belief. On the other hand, someone who becomes a vegetarian
based on health reasons or personal preference is not expressing a religious
belief.
Another example given in the guidelines is the contrast between
two employees who have tattoos that the employer would like concealed.
One has ceremonial symbols expressing devotion to an ancient Egyptian god.
The other employee uses body art as a form of self-expression. An
accommodation must be considered if displaying the tattoos is in religious
observance, but if requiring those tattoos to be
concealed would not affect a religious practice it would
be permissible.
Another distinction the EEOC makes in the guideline examples is
between two employees who hang a "Jesus Saves" poster at their work
stations. One employee has a private office, and no other employees
complain about the poster. Under these circumstances, EEOC states that
allowing the poster would probably be a required accommodation. However,
the other employee in the example works at a desk in the lobby and because
visitors might think the poster represents the company’s views, the employer
can likely prohibit it.
The EEOC will deal with each situation on a case-by-case basis,
but the EEOC and the courts are not likely to scrutinize practices that appear
to be sincerely held.
