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What You Need to Know About a New Religious Discrimination Guide


What You Need to Know About a New Religious Discrimination Guide

Religious discrimination claims can cost $100,000 in legal fees alone.

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Faced with an influx of religious discrimination charges, the U.S. Equal Employment Opportunity Commission (EEOC) has released new guidelines warning of a wide range of scenarios where employers commonly fail to accommodate religious dress and grooming practices.

The guidelines came on the heels of a major EEOC victory for two Muslim women last year, and as discussions on religious accommodation re-emerge into public consciousness.

In the Canadian province of Quebec, the Parti Québécois continues to push forward with a highly controversial Charter of Values that would ban public employees from wearing "conspicuous religious symbols" like turbans, yarmulkes and necklaces with unconcealed crucifixes. And just last year retail chain Abercrombie and Fitch paid Hani Khan $48,000 after she sued the company for firing her after a district manager allegedly took issue with her hijab, the Associated Press reported. Another woman, Halla Banafa, received a $28,000 settlement after she accused the company of refusing to hire her because she wore the traditional head scarf.

Corporate 'Image' Policies Risk Liability

The claims focused on the clothing chain's strict adherence to its "image policy" without exception – a perilous trend that can see employers in violation of employees' Title VII rights, as laid out in the Civil Rights Act.

"Tahera [is] an applicant for a retail sales position at a national clothing company that carries fashion for teens," reads one case study in the EEOC report, an apparent nod to the landmark victory against Abercrombie. "Based on its marketing strategy, the company requires sales personnel to wear only clothing sold in its stores, and no headgear, so that they will look like the clothing models in the company's sales catalogue."

The EEOC cautions against workplace dress codes, and requires that all employers to make exceptions to accommodate all "sincerely held" religious beliefs, the EEOC report says.

Undue Hardship

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Courts allow employers to refrain from making accommodations for sincerely held religious beliefs if it would cause undue hardship –a complex concept loosely defined as causing "more than de minimis" cost to business operations. According to the EEOC, an accommodation can be considered an undue hardship for a variety of factors:

  • Requires more than ordinary administrative costs
  • Compromises workplace safety or decreases workplace efficiency
  • Conflicts with another law or regulation. 
  • Infringes on the rights or benefits of other employees
  • Causes co-workers to carry the accommodated employee's share of potentially hazardous or burdensome work

But employers are expected to look for alternate solution that would allow the employer to avoid undue hardship while still allowing for some level of accommodation for the employee. In one case study in the EEOC guidelines, an employee at a medical equipment manufacturer does not trim his facial hair due to a Sikh religious observance. But his boss cannot promote him to supervise the sterilization of instruments because his beard may "contaminate the sterile field" – a legitimate undue hardship. The employer, however, would ideally find an alternate solution –such as requiring the employee to wear an extra mask, the EEOC says.

In another case, customers refused to return to a coffee shop because they claimed to be offended by a server's religious garb. But the EEOC's stance is that customer preference is not a legitimate reason to refuse an accommodation –  and moving that employee out of a front-line role and putting him "in the back," would be considered discriminatory.

How to Avoid a Discrimination Complaint and the Associated Costs

The EEOC report highlights more than 20 case studies, each with a different dilemma for employers -- signalling just how diverse the religious accommodation spectrum can be. The new guidelines suggest employer's avoid rigid policies, and approach each request for accommodation on a case-by-case basis.

The average work place discrimination claim costs an employer about $100,00 in legal and court fees alone,  says New York attorney Nicholas Fortuna. And religion-based discrimination charges filed with the EEOC doubled between 2002 and 2007, and continue to pose a problem to employers.

1. Policy. Fortuna always recommends that his clients "be proactive" and develop a robust anti-harassment and anti-discrimination policy, clearly defining the company's stance against discrimination based on religious beliefs and outlines training requirements for management. The policy would also crystallize  procedures for hiring and for employees to bring forward complaints.

"One of the questions you’re going to be asked by the EEOC or a court is: Do you have a policy against discrimination?" says Fortuna, a partner at Allyn & Fortuna.   "Do you follow that policy and have you communicated that policy to all employees? What training have you done?"

But, Fortuna says, "You can’t create this cumbersome process and not follow it, because it’ll be used against you as proof of discrimination."

2. Don't Be Nosey. Employers are required to accommodate any "sincerely-held religious beliefs," which includes lesser-known belief systems and newly adopted beliefs.  Asking invasive questions to determine whether your employee's belief is sincerely-held will almost certainly get your company into trouble, Fortuna says.

3. Beware of Retaliatory Action Claims. Even after a proper accommodation is made, employees are at risk of retaliatory action from managers. All promotions, demotions or disciplinary action should be thoroughly documented, which is part of a good HR policy anyway.