Accommodation of Religious Grooming and Garb in the Workplace

Title VII prohibits employers with at least 15 employees from discriminating based on race, color, religion, gender or national origin. It also prohibits retaliation against persons who complain of discrimination or participate in an Equal Employment Office investigation. Title VII applies to private employers, public employers, unions, and employment agencies. With respect to religion, Title VII prohibits among other things: disparate treatment, denial of reasonable accommodation, workplace or job segregation, harassment and retaliation.

The EEOC saw a 250% increase in the number of religious discrimination charges involving Muslims in the initial months following 9/11. According to the EEOC, between Sept. 11, 2001 and March 11, 2012, 1,040 charges related to the 9/11 attacks were filed by individuals who were or were perceived to be Muslim, Sikh, Arab, Middle Eastern or South Asian. The EEOC released the new guidance to address the increase in religious discrimination charges. Not surprisingly, many of the situations addressed by the guidance concern hair and head coverings.

New and Occasional Observance

An employee only needs to sincerely hold his or her religious belief to be protected by Title VII, even if the employee's belief is new or only occasionally observed. The EEOC guidance gives the example of an employee who starts to let his hair grow as part of his recently adopted Nazirite religion, in violation of a company grooming policy. The employee's religious grooming is part of his sincerely held religious belief, even though it is recently adopted. Therefore, the employer is obligated to find a reasonable accommodation for the employee, such as restraining the hair with coverings or clips. In most cases, co-workers' disgruntlement or jealousy about the religious accommodation is not considered undue hardship on the employer. Conversely, the employer does not also have to allow other employees to violate the grooming policy for secular reasons based on a misplaced notion that all employees must be treated equally.

Even if an employee does not continuously don religious garb at work, the employer must offer reasonable accommodation if requested. This issue usually arises around holy days. The EEOC gives the example of a female Muslim bank employee who only wears a hijab head covering during the holy time of Ramadan. The bank should make a reasonable accommodation for the employee's occasional wearing of the hijab, despite the bank's policy that female employees may not wear head coverings. The fact that the employee adheres to the practice only at certain times of the year does not mean that her belief is insincere.

Branding and Customer Preference Not a Defense

The new guidance is consistent with recent decisions in the federal courts rejecting the employer's arguments that dress and grooming codes are integral to the company's branding. In EEOC v. Alamo Rent-A-Car, LLC, 432 F. Supp. 2d 1006 (D. Ariz. 2006). The federal district court in Arizona found that Alamo Rent-A-Car had not even established a de minimis burden when it would not allow an employee to wear a head covering while attending to customers at the rental counter. Although Alamo argued that any deviation from its carefully cultivated image would be a hardship, it could not establish that it would cost the company any money, negatively affect the impression that the employee would make on customers, or negatively impact customer expectation.

Similarly, in EEOC v. Abercrombie and Fitch, 798 F. Supp. 2d 1272 (D. OK 2011). The district court in Oklahoma ruled that Abercrombie and Fitch had failed to establish that allowing a sales associate to wear a head covering would be an undue hardship even though the retailer submitted evidence that its primary advertising is'the in-store experience with its sales representatives and the look and feel of the store. The judge pointed out that Abercrombie and Fitch had granted exceptions to the dress code for religious reasons on a number of occasions, but had never conducted any studies, nor could it cite any specific examples, where deviation from the dress code resulted in decreased sales.

The EEOC guidance clarifies that customer preference or religious intolerance cannot justify an employer's violation of Title VII, even if it results in the loss of business. For example, if customers stop frequenting a coffee shop because they perceive a Sikh employee to be Muslim, the employer may not require the employee to alter his religious dress or grooming. Nor can the employee be moved to the kitchen, where he will not be seen by customers. Consider the example of a Muslim applicant for an airport ticket counter position who wears a hijab pursuant to her religious belief. The employer may fear that customers will think that an Islamic airport employee would be sympathetic to terrorist hijackers. If the applicant is qualified to be a ticket counter agent, the employer violates Title VII if it offers the applicant a job in the airline's call center, where she will only interact with customers by phone.

Workplace Safety, Security and Health Still a Viable Defense

Workplace safety, security or health continues to be a viable defense to a religious accommodation claim. However, the burden of proof is on the employer to show that the religious practice actually poses an undue hardship upon the operation of the business. In EEOC v. The Geo Group, 616 F.3d 265 (3d. Cir. 2010), the Third Circuit Court of Appeals sided with a private security company that disallowed Muslim employees who worked in a prison to wear a religious head covering. The court credited the employer's testimony that the head covering presented a safety risk to the employee because a prisoner could use it to choke the employee, and it presented a safety risk to the general security of the prison because it could be used to hide contraband and obscure surveillance images of the face.

The employer could not reasonably accommodate the head coverings without substantial changes to its security procedures and the expenditure of significant personnel resources. However, the new guidance cautions that even in the situation where the employee works in a correctional facility, the employer should consider on a case-by-case basis whether religious headgear can be worn, weighing relevant facts such as the individuals job, the particular garb at issue, and the availability of the accommodation.

In Bhatia v. Chevron U.S.A., Inc., 734 F.2d 1382 (9th Cir. 1984), the Ninth Circuit Court of Appeals in California sided with the employer that refused to allow a machinist to maintain facial hair. Accommodating the employee's beard would have caused an undue hardship on the employer because it would have interfered with the employee's ability to wear a respirator as required by California occupational safety standards, and would have required the company to revamp its system of assigning work.

This reasoning was recently adopted in Litzman v. New York City Police Dep., 2013 WL 6049066 (S.D. N.Y. 2013). There, the court sided with the New York City Police Department against an Orthodox Jewish police officer, whose religion prohibited him from shaving his beard. The court found that it was unduly burdensome on the employer because the employee could not wear a respirator, and thus, would not be interchangeable with other officers, thereby decreasing the efficiency of the employer to respond to emergencies.

The EEOC guidance cautions, however, that employers should not automatically assume that safety-driven policies are sacrosanct. If a female Pentacostal employee, who does not wear pants for religious reasons, can safely operate machinery in a close-fitting skirt, then the employer should make that accommodation unless the employer can prove that the accommodation poses a real safety risk that cannot be minimized without quantifiable undue hardship. In the case of head coverings, there may be close-fitting head coverings that can be worn instead of loose scarves that comply with the employee's religious observance as well as safety requirements.

The same caveat is true where dress and grooming policies are focused on health concerns. The EEOC provides the hypothetical of an employee who wears long hair according to his Native American religious beliefs. He applies for a job as a server at a restaurant. The employee explains that he keeps his hair long based on religious beliefs and offers to wear it in a ponytail or held up with a clip. This is a reasonable request for accommodation that should be granted by the employer. Similarly, the EEOC gives the example of an employee who works at a surgical instrument manufacturer. The employee wears a beard as part of his Sikh religion. A reasonable accommodation could be to require the employee to wear two face masks to prevent facial hair from contaminating the sterile field.

Undue Hardship Is Difficult To Prove

Employers should only deny an accommodation if the accommodation causes more than a de minimis burden. The employer satisfies its burden of proof by showing that the accommodation results in lost efficiency in other jobs, higher wages, more than a de minimis cost to the employer, or more than a de minimis imposition on co-workers. A recent case, EEOC v. JBS, LLC, 2013 WL 6621026 (D. Neb. 2013), involving Muslim meat-packing employees, illustrates this point.

The employer initially offered to accommodate the employees' prayer requirements by allowing mass breaks during Ramadan and unscheduled breaks the rest of the year. The employer later rescinded the accommodations because they created an undue burden. Unscheduled breaks had an adverse effect on food safety because the non-Muslim employees had to work faster and so had less time to sanitize their knives. Slower processing meant that raw meat would be exposed to air and bacteria for a prolonged time. The employer demonstrated that each prayer break cost $18,180 per day as a result of downtime, overtime, and reduced yield. When the employer allowed a mass break, it caused raw meat to be left out for such a long period of time that it lost half its value and was over exposed to bacteria. Mass breaks were an imposition on non-Muslim employees because the locker rooms, restrooms and cafeteria were not big enough to accommodate a large influx of employees, and a shortened shift to accommodate evening prayers caused non-Muslim employees to receive less pay. In light of the demonstrated burden on the employer, the court found the employer not liable for failing to accommodate its employees.

Practical Recommendations

• Employers are well advised to take the following precautions in consultation with their legal counsel or human resources professional:
• Review work rules, employee manuals, job descriptions and policies that include dress, grooming or uniform standards.
• Identify the goals that are advanced by the existing dress policies and determine whether there is any empirical data that the dress code actually achieves or supports those goals.
• Reconsider and perhaps eliminate any dress codes that impinge on religious belief without advancing a legitimate business need;
• Educate managers about the company's legal obligation to accommodate employees who wear religious dress or engage in religious grooming practices;
• Determine what accommodations can be made, if there are employees who cannot comply with the dress or grooming codes because of their religious beliefs;
• Ensure that hiring qualifications are in writing and uniformly applied;
• Maintain accurate and complete records of disciplinary actions;
• Provide a mechanism by which employees may ask for a religious accommodation;
• Consider a flexible leave and staffing policies that allows for employees to be absent from work in order to observe religious holidays;
• Have an anti-discrimination policy that extends to religious discrimination and outlines a procedure for requesting accommodations due to sincerely held religious beliefs;
• Carefully evaluate when a religious accommodation would or would not be an undue hardship;
• Maintain an internal avenue of appeal or review for employees aggrieved by accommodation decisions; and

Ensure compliance with applicable state or local laws addressing religious discrimination, which may be more protective of the employee's rights than federal law.

Rosanna Sattler, a member of this newsletter's Board of Editors, is a partner at Posternak Blankstein & Lund LLP. Her practice includes business litigation, environmental, employment, and insurance coverage disputes. She may be reached at [email protected]. Laura Otenti is an associate at the firm. She may be reached at [email protected].

On March 6, 2013, the Equal Employment Opportunity Commission (EEOC) issued new guidance in the form of a fact sheet and question-and-answer sheet on religious garb and grooming in the workplace under Title VII of the Civil Rights Act of 1964. The new guidance reflects the EEOC's continued focus on religious discrimination and accommodation post 9/11, as well as the EEOC's success in court against employers who failed to accommodate employees' religious garb, grooming, and practice.

Employers should take note of the new guidance, because it provides useful examples of when and how they should accommodate an employee's religious observance. The EEOC makes clear that neither customer preference nor employer image or branding is a defense for failing to accommodate religious beliefs and practices. Similarly, employers cannot assign employees to non-customer contact positions due to concerns about the effect of their appearance on customer perceptions, as doing so violates Title VII's prohibition on limiting, segregating or classifying employees based on religion.

Title VII

Title VII prohibits employers with at least 15 employees from discriminating based on race, color, religion, gender or national origin. It also prohibits retaliation against persons who complain of discrimination or participate in an Equal Employment Office investigation. Title VII applies to private employers, public employers, unions, and employment agencies. With respect to religion, Title VII prohibits among other things: disparate treatment, denial of reasonable accommodation, workplace or job segregation, harassment and retaliation.

The EEOC saw a 250% increase in the number of religious discrimination charges involving Muslims in the initial months following 9/11. According to the EEOC, between Sept. 11, 2001 and March 11, 2012, 1,040 charges related to the 9/11 attacks were filed by individuals who were or were perceived to be Muslim, Sikh, Arab, Middle Eastern or South Asian. The EEOC released the new guidance to address the increase in religious discrimination charges. Not surprisingly, many of the situations addressed by the guidance concern hair and head coverings.

New and Occasional Observance

An employee only needs to sincerely hold his or her religious belief to be protected by Title VII, even if the employee's belief is new or only occasionally observed. The EEOC guidance gives the example of an employee who starts to let his hair grow as part of his recently adopted Nazirite religion, in violation of a company grooming policy. The employee's religious grooming is part of his sincerely held religious belief, even though it is recently adopted. Therefore, the employer is obligated to find a reasonable accommodation for the employee, such as restraining the hair with coverings or clips. In most cases, co-workers' disgruntlement or jealousy about the religious accommodation is not considered undue hardship on the employer. Conversely, the employer does not also have to allow other employees to violate the grooming policy for secular reasons based on a misplaced notion that all employees must be treated equally.

Even if an employee does not continuously don religious garb at work, the employer must offer reasonable accommodation if requested. This issue usually arises around holy days. The EEOC gives the example of a female Muslim bank employee who only wears a hijab head covering during the holy time of Ramadan. The bank should make a reasonable accommodation for the employee's occasional wearing of the hijab, despite the bank's policy that female employees may not wear head coverings. The fact that the employee adheres to the practice only at certain times of the year does not mean that her belief is insincere.

Branding and Customer Preference Not a Defense

The new guidance is consistent with recent decisions in the federal courts rejecting the employer's arguments that dress and grooming codes are integral to the company's branding. In EEOC v. Alamo Rent-A-Car, LLC , 432 F. Supp. 2d 1006 (D. Ariz. 2006). The federal district court in Arizona found that Alamo Rent-A-Car had not even established a de minimis burden when it would not allow an employee to wear a head covering while attending to customers at the rental counter. Although Alamo argued that any deviation from its carefully cultivated image would be a hardship, it could not establish that it would cost the company any money, negatively affect the impression that the employee would make on customers, or negatively impact customer expectation.

Similarly, in EEOC v. Abercrombie and Fitch , 798 F. Supp. 2d 1272 (D. OK 2011). The district court in Oklahoma ruled that Abercrombie and Fitch had failed to establish that allowing a sales associate to wear a head covering would be an undue hardship even though the retailer submitted evidence that its primary advertising is'the in-store experience with its sales representatives and the look and feel of the store. The judge pointed out that Abercrombie and Fitch had granted exceptions to the dress code for religious reasons on a number of occasions, but had never conducted any studies, nor could it cite any specific examples, where deviation from the dress code resulted in decreased sales.

The EEOC guidance clarifies that customer preference or religious intolerance cannot justify an employer's violation of Title VII, even if it results in the loss of business. For example, if customers stop frequenting a coffee shop because they perceive a Sikh employee to be Muslim, the employer may not require the employee to alter his religious dress or grooming. Nor can the employee be moved to the kitchen, where he will not be seen by customers. Consider the example of a Muslim applicant for an airport ticket counter position who wears a hijab pursuant to her religious belief. The employer may fear that customers will think that an Islamic airport employee would be sympathetic to terrorist hijackers. If the applicant is qualified to be a ticket counter agent, the employer violates Title VII if it offers the applicant a job in the airline's call center, where she will only interact with customers by phone.

Workplace Safety, Security and Health Still a Viable Defense

Workplace safety, security or health continues to be a viable defense to a religious accommodation claim. However, the burden of proof is on the employer to show that the religious practice actually poses an undue hardship upon the operation of the business. In EEOC v. The Geo Group , 616 F.3d 265 (3d. Cir. 2010), the Third Circuit Court of Appeals sided with a private security company that disallowed Muslim employees who worked in a prison to wear a religious head covering. The court credited the employer's testimony that the head covering presented a safety risk to the employee because a prisoner could use it to choke the employee, and it presented a safety risk to the general security of the prison because it could be used to hide contraband and obscure surveillance images of the face.

The employer could not reasonably accommodate the head coverings without substantial changes to its security procedures and the expenditure of significant personnel resources. However, the new guidance cautions that even in the situation where the employee works in a correctional facility, the employer should consider on a case-by-case basis whether religious headgear can be worn, weighing relevant facts such as the individuals job, the particular garb at issue, and the availability of the accommodation.

In Bhatia v. Chevron U.S.A., Inc. , 734 F.2d 1382 (9th Cir. 1984), the Ninth Circuit Court of Appeals in California sided with the employer that refused to allow a machinist to maintain facial hair. Accommodating the employee's beard would have caused an undue hardship on the employer because it would have interfered with the employee's ability to wear a respirator as required by California occupational safety standards, and would have required the company to revamp its system of assigning work.

This reasoning was recently adopted in Litzman v. New York City Police Dep., 2013 WL 6049066 (S.D. N.Y. 2013). There, the court sided with the New York City Police Department against an Orthodox Jewish police officer, whose religion prohibited him from shaving his beard. The court found that it was unduly burdensome on the employer because the employee could not wear a respirator, and thus, would not be interchangeable with other officers, thereby decreasing the efficiency of the employer to respond to emergencies.

The EEOC guidance cautions, however, that employers should not automatically assume that safety-driven policies are sacrosanct. If a female Pentacostal employee, who does not wear pants for religious reasons, can safely operate machinery in a close-fitting skirt, then the employer should make that accommodation unless the employer can prove that the accommodation poses a real safety risk that cannot be minimized without quantifiable undue hardship. In the case of head coverings, there may be close-fitting head coverings that can be worn instead of loose scarves that comply with the employee's religious observance as well as safety requirements.

The same caveat is true where dress and grooming policies are focused on health concerns. The EEOC provides the hypothetical of an employee who wears long hair according to his Native American religious beliefs. He applies for a job as a server at a restaurant. The employee explains that he keeps his hair long based on religious beliefs and offers to wear it in a ponytail or held up with a clip. This is a reasonable request for accommodation that should be granted by the employer. Similarly, the EEOC gives the example of an employee who works at a surgical instrument manufacturer. The employee wears a beard as part of his Sikh religion. A reasonable accommodation could be to require the employee to wear two face masks to prevent facial hair from contaminating the sterile field.

Undue Hardship Is Difficult To Prove

Employers should only deny an accommodation if the accommodation causes more than a de minimis burden. The employer satisfies its burden of proof by showing that the accommodation results in lost efficiency in other jobs, higher wages, more than a de minimis cost to the employer, or more than a de minimis imposition on co-workers. A recent case, EEOC v. JBS, LLC, 2013 WL 6621026 (D. Neb. 2013), involving Muslim meat-packing employees, illustrates this point.

The employer initially offered to accommodate the employees' prayer requirements by allowing mass breaks during Ramadan and unscheduled breaks the rest of the year. The employer later rescinded the accommodations because they created an undue burden. Unscheduled breaks had an adverse effect on food safety because the non-Muslim employees had to work faster and so had less time to sanitize their knives. Slower processing meant that raw meat would be exposed to air and bacteria for a prolonged time. The employer demonstrated that each prayer break cost $18,180 per day as a result of downtime, overtime, and reduced yield. When the employer allowed a mass break, it caused raw meat to be left out for such a long period of time that it lost half its value and was over exposed to bacteria. Mass breaks were an imposition on non-Muslim employees because the locker rooms, restrooms and cafeteria were not big enough to accommodate a large influx of employees, and a shortened shift to accommodate evening prayers caused non-Muslim employees to receive less pay. In light of the demonstrated burden on the employer, the court found the employer not liable for failing to accommodate its employees.

Practical Recommendations

• Employers are well advised to take the following precautions in consultation with their legal counsel or human resources professional:
• Review work rules, employee manuals, job descriptions and policies that include dress, grooming or uniform standards.
• Identify the goals that are advanced by the existing dress policies and determine whether there is any empirical data that the dress code actually achieves or supports those goals.
• Reconsider and perhaps eliminate any dress codes that impinge on religious belief without advancing a legitimate business need;
• Educate managers about the company's legal obligation to accommodate employees who wear religious dress or engage in religious grooming practices;
• Determine what accommodations can be made, if there are employees who cannot comply with the dress or grooming codes because of their religious beliefs;
• Ensure that hiring qualifications are in writing and uniformly applied;
• Maintain accurate and complete records of disciplinary actions;
• Provide a mechanism by which employees may ask for a religious accommodation;
• Consider a flexible leave and staffing policies that allows for employees to be absent from work in order to observe religious holidays;
• Have an anti-discrimination policy that extends to religious discrimination and outlines a procedure for requesting accommodations due to sincerely held religious beliefs;
• Carefully evaluate when a religious accommodation would or would not be an undue hardship;
• Maintain an internal avenue of appeal or review for employees aggrieved by accommodation decisions; and

Ensure compliance with applicable state or local laws addressing religious discrimination, which may be more protective of the employee's rights than federal law.

Rosanna Sattler, a member of this newsletter's Board of Editors, is a partner at Posternak Blankstein & Lund LLP. Her practice includes business litigation, environmental, employment, and insurance coverage disputes. She may be reached at [email protected]. Laura Otenti is an associate at the firm. She may be reached at [email protected].