Diversity & Inclusion

Trends in religious discrimination and accommodation

by Alka Ramchandani

The Equal Employment Opportunity Commission (EEOC) has been coming down hard on organizations that are failing to accommodate employees for their religious beliefs. What follows are a few tools and concepts you may use to eliminate the potential of being a target for a lawsuit based on religious discrimination or failure to accommodate religious beliefs.  MoreReligiousAccommodations

Clean-shaven mishaps

On December 20, 2013, the EEOC and McDonald’s Corporation entered into a consent decree to settle a religious discrimination lawsuit filed against McDonald’s for failure to provide an employee with an accommodation for his religious beliefs.

The EEOC claimed that Shaheed Khan, an ex-employee at a McDonald’s restaurant in Fresno, asked his managers to accommodate his religious beliefs by allowing him to wear a beard at work. His managers refused his request. The failure to accommodate eventually led to Khan’s constructive discharge in 2005. After failing to resolve the matter during its conciliation process, the EEOC filed suit in the eastern district of California, which eventually resulted in a consent decree agreement.

The consent decree provides that McDonald’s will pay Khan $50,000 in damages, retrain its managers and staff, and redistribute its existing policies relating to religious discrimination and accommodation.

Some state laws are stricter than federal law

Under federal law, you must accommodate an employee’s religious beliefs unless doing so creates an “undue hardship.” Some states, however, have stricter laws that specifically allow employees to wear religious clothing, hairstyles, and accessories unless doing so would create an undue hardship.

Under federal law, an undue hardship defense can be demonstrated by proving that the accommodation would result in minimal additional costs or minor burdens. Under some state laws, the defense must often show that the accommodation requires significant difficulty or expense. Courts look at factors such as financial resources and the number of workers in the facility to determine whether the accommodation actually is an undue hardship or expense.

Ways to prevent religious discrimination

To protect your organization from being hit with religious discrimination or accommodation lawsuits, it’s important to recognize the ways you can make sure employees are being adequately accommodated for their religious beliefs and practices. Here are a few tips to follow.

Have written policies. Make sure you have written policies that specifically prohibit religious discrimination or harassment. Ensure your policies are neutral to all religions. For instance, make sure your dress code doesn’t discriminate against employees from particular backgrounds by prohibiting employees from growing beards, wearing clothing such as turbans or hijabs, or wearing jewelry such as mangala sutras or crosses.

If your policies do have restrictions on grooming and religious dress standards, be sure to include language that provides an exception, such as “An employee may request an accommodation where any dress or grooming practice is required because of his or her sincerely held religious belief.”

Make sure your managers are trained. In recent cases, we have seen the EEOC enter into agreements compelling the employer to retrain its managers. You should make sure your managers are trained to understand basic concepts of religious accommodation. Train them to be sensitive toward different backgrounds and cultures to ensure employees don’t feel that they’re being treated differently. You also may want to have a policy providing that managers must discuss any request for accommodation with HR and/or higher management before it’s denied. You have to make sure there is documentation that reflects a discussion and supports any contention that there is a significant difficulty or expense in accommodating the employee.

Educate yourself about the religious backgrounds of your employees. In our diverse nation, we have people from vastly different backgrounds, cultures, and religions. One of the only ways to be sensitive toward those backgrounds is to keep yourself educated about your employees and their needs. We have seen recent trends in religious requests for accommodations. Here are some of the requests that have come up:

  • Requests for prayer rooms. Many religions require employees to pray or meditate multiple times a day. Often the prayer or meditation requires carpets, solitude, and/or the ability to face certain directions. Employees may request a religious accommodation for a clean, separate location to conduct prayers. They also may request multiple breaks at specific times for conducting prayers according to their religious belief. Educate yourself on the potential accommodations that may be requested to determine whether they are feasible.
  • Clothing. Some religious backgrounds believe in wearing specific clothing, such as hijabs, burkas, or turbans. Other religious beliefs prohibit followers from wearing certain clothing ― for example, Pentecostal women can’t wear pants. In early 2013, another food establishment was sued when it fired a woman for violating the company’s dress code by wearing skirts to work. The dress code stated that all employees had to wear pants. The food establishment settled the lawsuit for $40,000. Make sure this doesn’t happen to you. Educate yourself on what clothing is actually necessary to ensure safety and compliance.
  • Food options. Many religious beliefs have dietary restrictions. Make sure any sponsored event by your organization provides options for all religious backgrounds. Many individuals are vegetarian or can have only kosher or halal products. Educate yourself on your staff and their dietary preferences before sponsoring an event.
  • Hair. Some religions prohibit individuals from cutting their hair, and some prohibit individuals from growing their hair. Many religions have rituals that require individuals to shave their head. Educate yourself on the backgrounds of your employees, and make sure your policies are structured so they don’t discriminate against certain types of religions.
  • Accessories. Many religions require accessories. For instance, according to religious customs, Sikhs have to carry a knife-like object at all times. If you become aware that your employees observe any of these religious customs, make sure to immediately resolve any potential miscommunications and misconceptions by educating your employees.

Consult with your attorneys regarding what to do in some of these situations. Accommodation decisions often seem sound internally but may seem harsh to a jury. Consult with your attorney to get legal advice and a second opinion on whether a fact-finder may agree with your undue hardship defense.

EEOC guidance

On March 6, the EEOC issued two new technical assistance publications addressing workplace rights and responsibilities with respect to religious dress and grooming under Title VII of the Civil Rights Act of 1964. The question-and-answer guide “Religious Garb and Grooming in the Workplace: Rights and Responsibilities” and an accompanying fact sheet discuss the applicable law and provide advice for employers with case examples based on EEOC litigation.

The EEOC notes that employers covered by Title VII must make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously mandated dress and grooming practices unless it would pose an undue hardship to the operation of the business. Topics covered in the publications include prohibitions on job segregation, accommodating religious grooming or garb practices while ensuring employer workplace needs, avoiding workplace harassment based on religion, and preventing retaliation against employees who request religious accommodation.

The Q&A guide is available on the EEOC’s website at www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm. The fact sheet is available at www.eeoc.gov/eeoc/publications/fs_religious_garb_grooming.cfm.

Bottom line

Be prepared by educating yourself and making sure your policies and procedures adequately allow for reasonable accommodation of religious practices and customs. Always make sure that when an accommodation is requested, you take careful steps in evaluating the accommodation to ensure it isn’t denied unless it would cause a significant difficulty or expenditure to your organization. Consult with an attorney to have your employment policies reviewed and to discuss any accommodations you think may provide an undue hardship.

Alka Ramchandani is an attorney with  Epstein Becker & Green, P.C., in San Francisco. She may be contacted at aramchandani@ebglaw.com.

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