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The EEOC’s Guidance on Avoiding Religious Discrimination in the Workplace: Potential Pitfalls Facing Housing Authorities

By: Michael T. Fraser, Esq., Associate, Saxon, Gilmore, Carraway & Gibbons, P.A.
Published in FAHROgram, May/June 2014

MFraser3-cropped-sMost businesses like housing authorities understand that discriminating against an employee based solely on that employee’s religious beliefs (or lack thereof) is not only morally wrong, but is illegal. Unfortunately, despite that fact, according to the most recent data released by the Equal Employment Opportunity Commission (“EEOC”), over 3,700 cases of alleged religious discrimination were reported to the EEOC in 2013 alone. This is more than 1,000 additional reported cases of alleged religious discrimination than were reported only ten years prior. The rise in religious discrimination claims has been extensively reported on by major news sources, including the Wall Street Journal and the Washington Post. In an apparent response to this rising trend, the EEOC recently published its Religious Garb and Grooming in the Workplace: Rights and Responsibilities, which is a guidance (the “Guidance”) that outlines the basic employment rules involved in religious discrimination cases. The Guidance provides specific examples of common problem areas and makes suggestions on how to better address potential issues.

Religious discrimination is prohibited in the workplace pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). Religious discrimination in the workplace can take several forms, including discrimination based on disparate treatment, denial of a reasonable accommodation, segregation of the employee, creation or acquiescence to a hostile work environment, and retaliation over engaging in a protected activity. Any of these theories for liability can cost the employer thousands of dollars, just in defending the claim. That amount, however, does not even take into account the potential exposure employers face in these types of claims. Indeed, Plaintiffs in Title VII religious discrimination cases, if successful, can be awarded front pay, back pay, lost future earnings, reinstatement, attorney’s fees, actual compensatory damages, and even punitive damages, which is why employers must be vigilant in eradicating workplace religious discrimination; hence the need for the Guidance.

As a threshold matter, however, Title VII only protects a person’s “sincerely held religious beliefs.” Accordingly, if a business has a dress code policy prohibiting men from wearing their hair long, that policy would not violate Title VII, unless the employees’ sincerely held religious beliefs required him not to cut his hair. See Guidance, Ex. 1. The employer would then be required to provide the employee with a religious accommodation by allowing that employee to grow his hair according to his religious beliefs, even if the employee only recently became a practicing follower of his religion. However, the employer would not be required to permit other employees who do not hold such a belief to grown their hair in violation of the company policy.

A common issue facing public employers in particular is the fear of violating the Establishment Clause by permitting employees to don religious symbols and clothing, such as crucifixes, hijabs, and yarmulkes, while working. But, so long as the employee’s religious expression appears to be only personal in nature (e.g. employee wearing an Ash Wednesday cross drawn onto the employee’s forehead in observance of the religious holiday) and is not reasonably perceived as an endorsement of religion by the public body, the Establishment Clause is not violated. If, on the other hand, the employee is precluded from displaying his or her religious garb out of fear of violating the Establishment Clause, that would be a violation of Title VII. See Guidance Ex. 12.

None of this should imply that religious beliefs trump all employer concerns. On the contrary, it is well-established that long hair and certain dangling clothing can be prohibited on a jobsite if the reason for precluding these things is for health and safety, and if allowing for an accommodation would pose an “undue hardship” on the employer. For example, dangling clothing would not likely be permitted near machinery if evidence shows that doing so would be dangerous to the employee and others. See Guidance Ex. On the other hand, a Sikh would ordinarily be permitted to wear a kirpan, which is a small, blunt, sheathed sword representing a commitment to truth and morals, to work even though a business might preclude weapons on site, unless, of course, it can be shown that the kirpan is a danger that poses an undue hardship for the business to accommodate. See Guidance Ex. 19.

These are only a few of the potential issues facing employers, but from the data provided by the EEOC, it does not appear that religious discrimination cases are going away any time soon. It, therefore, is imperative for housing authorities to keep up to date on EEOC publications, such as the Guidance, so that potential issues never materialize into actual ones.




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