By Amy B. Messigian

The EEOC has just published guidance to employers on accommodating religious dress and grooming practices pursuant to Title VII of the Civil Rights Act. This guidance comes on the heels of several high profile religious discrimination cases that have brought the issue of religious dress and grooming accommodation to the forefront.  Employers with 15 or more employees are covered by Title VII and should take note of the new guidance.

Title VII requires employers to provide reasonable accommodations for “sincerely held religious practices, unless the accommodation would cause an undue hardship” and prohibits workplace or job segregation based on religion, harassment based on religion or retaliation for requesting a religious accommodation.  Certain states, including California, have adopted similar protections for religious practices in their non-discrimination statutes, expressly requiring the accommodation of religious dress and religious grooming absent undue hardship.  Taken together, these laws require employers to make exceptions to “their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices.”  This means, among other things, allowing for some flexibility to dress codes or uniform policies.

The EEOC provides the following examples of religious dress and 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), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”  While this list is helpful, employers should be cautioned that it is not exhaustive.

Rather, the guidance makes clear that the EEOC takes a jarringly broad view of what constitutes a religious practice or belief that may require accommodation.  For example, the guidance notes that Title VII “defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.”  The guidance further states, “an employee’s belief or practice can be ‘religious’ under Title VII even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.” Because the EEOC takes such a broad view, employers may find it difficult to refute that a practice or belief is “religious.”  Nevertheless, the guidance provides that “if a dress or grooming practice is a personal preference, for example, where it is worn for fashion rather than for religious reasons, it does not come under Title VII’s religion protections.”  Employers should obviously approach such matters cautiously and engage legal counsel for assistance on anything that may be a “close call.”

The guidance reiterates that the Title VII accommodation requirement only applies to sincerely held religious beliefs.  However, it may be challenging for an employer to decide whether a belief is sincerely held.  This is particularly true because the guidance makes clear that “an individual’s religious beliefs – or degree of adherence – may change over time, yet may nevertheless be sincerely held.”  Indeed, many of the recent cases of religious discrimination relate to a requested accommodation of a newly observed religious belief, such as a request by a Muslim employee to begin wearing a headscarf.  Likewise, a change in company policy may lead to new requests for accommodations.  For example, just last week, the U.S. Department of Justice sued the School District of Philadelphia for failing to accommodate a Muslim police officer who sought a variance from a new grooming policy that required a trimmed beard, which the officer claimed was forbidden by his religion. If there is a legitimate reason to question the sincerity of the belief or practice, the employer may ask for “information reasonably needed to evaluate the request.”

For example, in response to an employee’s request to wear a hijab, the employer may require that the hijab match the colors of a company uniform.  Unless there is a legitimate religious basis for a variance from the uniform colors, it will be difficult for an employee to demonstrate that it was not a reasonable accommodation of her religious beliefs to approve the wearing of a hijab in a certain color.  Employers should be cautioned, however, that requiring a certain color of dress may necessitate reimbursement for the costs of the religious garb if it would not otherwise be a typical part of the employee’s wardrobe.

The EEOC guidance provided some helpful examples to aid employers with addressing accommodation requests.  These examples further demonstrate that requests for accommodations should be considered on a case-by-case basis and with an understanding of the religious custom at issue and the employee’s beliefs regarding that custom.

by Teiko Shigezumi and Carrie Corcoran

The EEOC recently published its long-awaited final regulations (the “Regulations”) and interpretive guidance for the Americans with Disabilities Act Amendments Act (the “ADAAA”), which became effective on January 1, 2009.  The Regulations significantly alter the analysis of “disability” under the Americans with Disabilities Act (“the “ADA”) and reflect Congress’ intention to expand the ADA’s coverage.  The ADAAA retained the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. The Regulations, however, alter the interpretation and application of this term in fundamental ways.

For example, the Regulations expanded the list of “major life activities,” to include, among others, eating, standing, thinking, communicating and sleeping.  Moreover, “major life activities” now encompasses “major bodily functions.”  The EEOC sets forth nine “rules of construction” in the Regulations to aid the analysis of whether an impairment substantially limits one or more major life activities.  Further, as required by the ADAAA, the Regulations make it easier for individuals pursuing discrimination claims to establish coverage under the “regarded as” prong of the definition of “disability.”

Although the Regulations do not become effective until May 24, 2011, employers should immediately take them into account in employment decision making, as they will certainly guide EEOC enforcement activities and employee expectations even before the effective date.  For more detailed information about the Regulations, see EBG’s comprehensive Act Now Advisory.

The defense of most ADA claims will now focus on whether the applicant or employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled.  In most cases, to focus on whether the person has a disability would be misplaced.

To help minimize the risk of potential disability discrimination and failure to accommodate claims, employers should take certain actions:

  • Review all job descriptions to assure that they accurately and fully capture all “essential functions” of the job.
  • Train supervisors on the new broad coverage of the ADA and require them to enlist the assistance of Human Resources in the “interactive process” to determine whether a reasonable accommodation can be made.
  • Always engage in the interactive process when there is an accommodation request and fully document your organization’s efforts during the interactive process.
  • Review language in any policies and employee handbook to make sure it is consistent with the ADAAA.
  • Review applications and any inquiries that might elicit information about an applicant’s disability, and determine if they are appropriate.
  • Contemporaneously document all employment actions, decisions, and corrective action involving an employee who is an individual with a disability or has a record of a disability.