It’s been 50 years since the passage of the Civil Rights Act of 1964. Especially relevant is Title VII, which deals with Equal Employment Opportunity, especially in light of recent updates to the Equal Employment Opportunity Commission’s Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities.
The fact sheet, as highlighted by Aditi Mukherji, JD, at his Free Enterprise blog at FindLaw.com, points out that even recruiting can be a minefield when it comes to Title VII.
He says, “Claiming customers prefer a person of a certain religion is not a defense to a claim of discrimination. You cannot assign an employee who wears a hijab to a non-customer contact position (such as a supply room) because of actual or assumed customer preference.”
Some may recall the Abercrombie & Fitch legal troubles regarding its recruitment (maybe non-recruitment is a better word) of African Americans, Asian Americans, Latinos, and women. You can add Muslims to that list as well. As Tanya Roth, Esq., reports at FindLaw.com, “In 2005, the company agreed to a six-year consent decree and paid $40 million to a class of African Americans, Asian Americans, Latinos, and women.” Why? They were sued by EEOC and private litigants for refusing to recruit, hire, promote, and retain minorities because they did not fit Abercrombie’s ‘All-American look.’ Discrimination based on race, national origin or religion is illegal under the Civil Rights Act of 1964.”
The updated Question and Answer guide for the Fact Sheet on Religious Garb can be a big help to those struggling with recruitment issues. It comes right out and explains, “Examples of religious dress and grooming practices include 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)).”
The federal government is fairly clear on where it stands on religious discrimination. “In most instances, employers are required by federal law to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices,” the EEOC says.
The commission outlines what is prohibited:
- disparate treatment based on religion in recruitment, hiring, promotion, benefits, training, job duties, termination, or any other aspect of employment (except that “religious organizations” as defined under Title VII are permitted to prefer members of their own religion in deciding whom to employ);
- denial of reasonable accommodation for sincerely held religious practices, unless the accommodation would cause an undue hardship for the employer;
- workplace or job segregation based on religion;
- workplace harassment based on religion;
- retaliation for requesting an accommodation (whether or not granted), for filing a discrimination charge with the EEOC, for testifying, assisting, or participating in any manner in an EEOC investigation or EEO proceeding, or for opposing discrimination.
(Another good point the EEOC makes is state or local laws might trump the federal statutes. Make sure you are consulting those as well.)
Title VII applies to all religions. “Title VII protects all aspects of religious observance, practice, and belief, and 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 Q&A says, and that appears to include atheists as Mukherji points out in his blog.
By the way, as the EEOC points out, you can’t refuse to hire someone because of a perception that their religious needs will conflict with your company policies. It cites the case of an observant Sikh not hired for position because she wears a head dress. “There is evidence that the manager believes that the headscarf is a religious garment, presumed it would be worn at work, and refused to hire her because the company requires sales agents to wear a uniform with no additions or exceptions. This refusal to hire violates Title VII, even though Aatma did not make a request for accommodation at the interview, because the employer believed her practice was religious and that she would need accommodation, and did not hire her for that reason,” the EEOC says.