Freedom of religion has deep roots in American history, stemming from the great diversity of peoples, faiths, practices and philosophies that have helped define our civic culture and values. But in application, freedom of religion–and from religion–have proven subtle and more thorny questions, especially when applied to private modes of business, association, and conduct. In short, what can a private employer be compelled to do and accept, or be prohibited from doing, in the workplace on matters that touch on personal conscience and religious practice?
At the federal level, private employer conduct regarding religion and religious expression is regulated under Title VII to the Civil Rights Act of 1964. Title VII only applies to employers with 15 or more employees, although state and local laws, rules, regulations, and ordinances may provide additional protections or expand Title VII protections more broadly. (For example, a state nondiscrimination statute may apply to a business with under 15 employees, or may add other protected individuals or classes.) All these requirements should be taken into consideration when formulating workplace rules and guidelines that govern or may touch upon employee religious expression and observance.
There are, however, some brighter line considerations that may be helpful to employers and employees in establishing appropriate limits and expectations for the workplace.
1.Does the employer’s dress code unreasonably prohibit religious attire?
Employer dress codes are commonplace in U.S. business. They help set minimum standards and expectations and can be important to fostering a cohesive team environment. But if that dress code lacks accommodation for religious attire, it may run afoul of Title VII.
Under Title VII, employers must make reasonable accommodations for their employees’ religious attire. An accommodation is reasonable so long as it does not impose an undue hardship on an employer, meaning a more than a de minimis cost or burden. Courts have found undue hardship in instances when the requested accommodation diminishes workplace efficiency, infringes on other employees’ rights or benefits or impairs safety, or increases the other employees’ share of hazardous or burdensome work.
The Equal Employment Opportunity Commission (EEOC) has brought actions against employers who have prohibited yarmulkes, hijabs, and turbans when those items were religiously required and did not unduly interfere with an employee’s work. However, there are some situations where an employer may prohibit or request modification of religious attire, including for safety, security or health. For example, in certain manufacturing environments an employer may prohibit any loose-fitting clothing or jewelry due to safety concerns.
2. Does the employer unreasonably prohibit religious personal grooming requirements?
Some religions have specific requirements on how a believer is to personally groom and style things like hair and beards. Under Title VII, an employer cannot mandate uniform grooming standards without reasonable accommodations for these religious rules. For example, men who are observant Hasidic Jews are prohibited from cutting their beards or shaving their sidelocks (payot). Similarly, Sikh men are precluded from shaving or cutting any body hair. Absent certain exceptions, without demonstrating an undue hardship, an employer’s otherwise neutral and generally applicable dress code cannot compel rules that would unduly conflict with an employee’s religious observance.
3. Does company policy make accommodation for religious holidays and festivals?
Employers are generally required to accommodate their employees’ religious holidays, for example Rosh Hashanah and Yom Kippur, or Good Friday or Easter. Options are available to balance the time an employee takes in making religious observance, like scheduling replacement days for work.
4. Does company practice sequester religious employees away from their colleagues or customers?
Employers are generally free to assign an employee to any task or undertaking that the employer deems appropriate for the employee’s skills, experience or abilities. An employer, however, cannot hide otherwise qualified employees away from customers or co-workers who may express discriminatory preferences. Nor may an employer terminate an employee in an effort to salvage a customer relationship that has been jeopardized not by an employee’s performance but religion or other protected characteristic.
5. How to demonstrate Title VII compliance and reduce the employer’s risk of an EEOC complaint, Department of Labor proceeding, or legal action?
One good way to minimize if not avoid allegations of religious discrimination is to establish clear nondiscrimonatory rules, policies and guidelines that emphasize performance criteria and not stereotypes or prejudiced expectations as the basis for evaluating employees and candidates. It is also helpful if the business includes training modules and documentation to confirm that it has educated management and employees on these standards.
6. Good policies, good documentation, and a good lawyer.
Compliance with well-thought through and consistently applied anti-discriminatory policies, rules and guidelines is generally a business’ first line of protection from a claim of bias in the workplace or for wrongful termination. This area, however, can be tricky. Contact Baker Jenner to discuss your situation and determine if your business is set for success.
Baker Jenner LLLP
