Michael, who wears long hair because of his religious beliefs, applies for a job as a restaurant server. Alan, the manager, tells Michael that restaurant policy requires male servers to wear their hair short. Michael can have the job if he cuts his hair. Michael explains his religious belief and offers to wear his hair in a ponytail at work. If Michael refuses to cut his hair, can Alan decline to offer him the job?
Justin, a bank teller, recently added to his inside wrist a tattoo that reflects his religious beliefs. The tattoo is visible even when Justin wears a long-sleeve shirt. A few bank customers complain to Stacy, Justin's branch manager. Can Stacy respond by moving Justin to a different position that does not require interaction with the public? Can she fire him because some customers object to his appearance?
These are two examples of applicants or employees whose religious practices or observances are physically visible. Other cases involve employees or applicants who wear religious articles of clothing or who observe a religious prohibition against wearing certain garments that are required for the job.
Title VII of the 1964 Civil Rights Act prohibits religious discrimination in the workplace. It requires employers to provide a "reasonable accommodation" to employees' religious beliefs and practices, which are broadly defined. Beliefs include any moral or spiritual beliefs that are held with the strength of a traditional religious view. Protected behavior includes "all aspects of religious observance and practice."
In recently revised guidelines, the Equal Employment Opportunity Commission reinforced its tough stance regarding employers' obligation to accommodate religious expression and appearance at work. The guidelines suggest that employers must accommodate members of newer "uncommon" religions, even those that lack any formal organization and are adhered to by only a small number of people. An employee's religious observance can be sincerely held even if it were recently adopted.
Customer preference will rarely be an acceptable defense. Employers cannot assume that accommodating an employee's religious practice will result in a loss of customers. They must show actual hardship. It is not clear whether an employer must actually lose customers to support a claim of undue hardship.
While courts are not obligated to follow EEOC guidelines, employers should err on the side of caution by providing accommodation if at all possible. In the restaurant example, the EEOC guidelines suggest that Alan should hire Michael. The same may be true of Justin, since a few customer complaints are not likely to justify an undue hardship.
All managers should be made aware of these new guidelines. Employers should review current policies regarding dress and grooming to be sure they provide adequate exceptions for religious beliefs. Communicating anti-harassment policies to all employees is advisable.
Finally, employers should analyze employee requests for religious accommodation with a qualified employment law attorney before turning them down.