What happens when the religious beliefs of an applicant conflict with your grooming and appearance policy?  What if the applicant is seeking a public-facing position in which they will be the first (and only) representative of your organization with whom most members of the public interact?  While some employers may believe that “image is everything” when it comes to the appearance of their public-facing employees, a 4.9 million-dollar settlement of a religious discrimination lawsuit announced recently by the U.S. Equal Employment Opportunity Commission (“EEOC”) serves as a stark reminder to employers that even your most straightforward policies may need to be modified in certain situations.  As detailed in our June 7, 2018 blog post, the EEOC has been aggressively making good on the promise made in the agency’s Strategic Enforcement Plan for Fiscal Years 2017 – 2021 to focus on “class-based recruitment and hiring practices” that discriminate against people with disabilities by filing a series of lawsuits accusing employers of violating the Americans with Disabilities Act by inquiring about prior medical histories, subjecting applicants to physical capacity tests and refusing to hire individuals who disclosed certain conditions.  The agency’s Strategic Enforcement Plan similarly committed to rooting out religious barriers to employment.  This is important because while many employers readily understand the need to reasonably accommodate disabled applicants and employees, it seems that some employers fail to grasp that they may also have to accommodate religious beliefs and practices of applicants and employees.

What the Law Requires

Title VII requires that employers, once informed that a religious accommodation is needed, accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.  If an employer’s dress and grooming policy conflicts with an employee’s known religious beliefs or practices, the EEOC expects that the employer will make an exception to the policy allowing the religious practice unless that would be an undue hardship on the operation of the employer’s business.  The concept of undue hardship differs somewhat from how the term is applied under the ADA; here, it has been defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business.  If, for example, a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship.  Undue hardship under the ADA, by contrast, must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.

The EEOC maintains that employers may not, when making hiring decisions, assign applicants to a non-customer contact position because of actual or feared customer preferences.  Customer preferences—even the anticipated loss of business—does not constitute an undue hardship.  The EEOC maintains that such decisions violate Title VII’s prohibition on limiting, segregating, or classifying employees based on religion.  It does not matter if the employer is following a uniformly applied employee policy.  Rather, the employer must make an exception to its policy or practice as a religious accommodation.  While employers should tread carefully when discussing such matters with applicants and employees alike, the EEOC encourages employers to initiate and engage in an interactive dialogue with the applicant or employee much like employers are expected to do when evaluating reasonable accommodation requests related to a disability.  For example, an employer may ask the applicant whether his or her religious beliefs permit covering the attire or item.  If not, requiring the individual to cover their religious garb, marking, or article of faith would not be viewed as a reasonable accommodation by the EEOC.

How UPS Ended Up in the EEOC’s Crosshairs

According to a lawsuit filed by the EEOC in 2015, United Parcel Service, Inc. (“UPS”), which prohibits male employees in customer contact or supervisory positions from wearing beards or growing their hair below collar length, made this mistake on numerous occasions around the country.  The EEOC alleged that UPS—during a 10-year period—failed to hire or promote numerous individuals whose religious practices allegedly conflicted with the company’s appearance policy.  Included among the allegations were:

• A Muslim who applied for a driver helper position and wears a beard as part of his religious observance was told he had to shave to get the position. He was also told, “God would understand” if he shaved his beard to get a job and that he could apply for a lower-paying job if he wanted to keep his beard.
• A Native American applicant who sought a job in 2007 as a receiver in California and wore his hair long as part of his religious observances was purportedly told, “No haircut, no job.”
• A Rastafarian part-time load supervisor in Fort Lauderdale, who does not cut his hair as part of his religious beliefs, asked for an accommodation of the appearance policy. His manager told him he did not “want any employees looking like women on (his) management team.”  Rastafarians in other parts of the country were denied positions or waited years for their requests for accommodation to be granted so they could finally get the position they sought.
• Muslims and Christians at other facilities were forced to shave their beards in violation of their religious beliefs while they waited months or years for UPS to act on their requests for religious accommodation.

UPS, which denied the EEOC’s allegations, nevertheless entered into a consent decree to resolve the lawsuit, agreeing to pay 4.9 million dollars to a class of current and former applicants and employees identified by the EEOC.  In addition to the monetary relief, UPS agreed to amend its religious accommodation process for applicants and employees, provide nationwide training to managers, supervisors, and human resources personnel, and publicize the availability of religious accommodations on its internal and external websites.  And as is the case with most consent decrees, UPS will provide periodic reports to the EEOC regarding requests for religious accommodation related to the appearance policy, so the agency can monitor the company’s compliance with the terms of the consent decree.

Takeaways for Employers

Employers should review their dress and appearance policies from time to time and consider inserting language affirming the organization’s willingness to consider accommodations for sincerely held religious beliefs.  Recognizing that these issues will often be encountered first by front-line managers and supervisors, employers should provide training to managers and supervisors explaining that the law may require making a religious exception to an employer’s otherwise uniformly applied dress or grooming rules, practices, or preferences.  Employers should also take steps to ensure that those tasked with responding to accommodation requests—whether they be in human resources or operations—understand that they must explore alternative accommodations if an employee’s proposed accommodation would pose an undue hardship.  The greater the effort to investigate other options, the more likely the employer will prevail in a subsequent charge or lawsuit.  It goes without saying, of course, that employers should evaluate each request on its own merits and make case-by-case determinations regarding any requested religious exceptions, avoiding assumptions and stereotyping.  Likewise, employers should not assume that an accommodation would pose an undue hardship.  While safety, security, or health may be valid concerns, there may still be an accommodation available that enables the employee to adhere to his or her religious beliefs while also avoiding undue hardship to the employer.