Published in the New Hampshire Business Review
Dalip was recently hired as a teller at a bank in Concord. Dalip is an observant Sikh who wears a turban, or dastar, as part of his religious beliefs. A few days after Dalip was hired, the bank manager, John, began receiving complaints from customers who felt “uncomfortable” approaching Dalip. Around the same time, John learned that some employees had started joking about Dalip’s turban, referring to Dalip as the “friendly, local Hamas recruiter.” In an effort to resolve these issues, John decides that he will ask Dalip to either remove his turban at work or take a position in which he spends most of his time on the phone. Can John do this?
The short answer is no. Title VII of the Civil Rights Act of 1964, 42 USC § 2000e, (“Title VII”) prohibits employers with 15 or more employees, employment agencies, unions and federal government agencies from discriminating in employment on the basis of race, color, religion, sex or national origin. Title VII also prohibits employers from retaliating against those who complain of discrimination. Earlier this month, the US Equal Employment Opportunity Commission (“EEOC”) issued two new publications addressing how the broad language of Title VII applies to the specific issue of religious garb and grooming in the workplace. The need for these regulations is clear: between 1997 and 2013, the number of complaints received by the EEOC alleging religious discrimination increased three-fold.
The EEOC publications make clear that Title VII prohibits a wide variety of actions, including: treating an applicant or employee differently on the basis of religion in recruitment, hiring, promotion, benefits, training, job duties, termination or any other aspect of employment; denying reasonable accommodation for sincerely held religious practices, unless the accommodation constitutes an undue hardship; segregating employees on the basis of religious belief; allowing workplace harassment on the basis of religious belief; or retaliating against an employee who requests a religious accommodation.
Employers should be aware that the EEOC defines religious practice or belief very broadly. The definition encompasses not only traditional, organized religions, but any theistic and non-theistic moral or ethical beliefs, even if they are new, uncommon, not part of any formal organization, or followed by very few people. Further, it doesn’t matter if the practice or belief varies among different members of the same religion, or if an individual employee’s adherence changes over time.
All employers likely know that they must guard against their executives and managers discriminating against employees on the basis of religion. But the EEOC warns that employers must also protect their employees from co-workers as well as from clients and customers. The EEOC explicitly warns that an employer is liable for harassment by co-workers, clients and customers “where it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.” Furthermore, it is not a solution to send the victim of discrimination to the back room to avoid conflict with co-workers or customers. Such an action constitutes religious segregation and is itself a violation of Title VII.
When it comes to religious accommodations, there are a number of things employers should keep in mind. First, an employee does not need to say any “magic words” when he or she requests an accommodation. If it is obvious that a particular practice is religiously-motivated and conflicts with a work policy, the employer is obligated to provide an accommodation. Second, employers must take their employee’s word that a particular practice or belief is “sincerely held.” Coupled with the broad definition of religion, this means that an employer will almost never win an argument that a practice is not religious or sincerely held. Third, an accommodation must be granted unless the accommodation would present an undue hardship to the employer. What exactly is an undue hardship? Based on case law, the EEOC defines it as a “more than de minimis” cost or burden on the operation of the employer’s business. According to the EEOC, “if a religious accommodation would impose more than ordinary administrative cost, it would pose an undue hardship.” Fourth, a grant of religious accommodation does not mean that the employer must grant other employees the same accommodation for non-religious reasons. For example, if an employer that has a strict “clean-shaven” policy grants a religious accommodation to a Messianic Christian to grow a beard, the employer is not then required to allow other employees to grow beards for secular reasons, such as fashion or personal preference.
So what does all this mean for John and his new employee Dalip? First, John may not ask Dalip to remove his turban or take another position. To do so clearly constitutes religious discrimination under Title VII. Although John may be motivated by a desire to keep his customers happy, the EEOC explicitly warns that “`c`ustomer preference is not a defense to a claim of discrimination.” Second, John must take action to ensure that Dalip is not harassed by the bank’s customers or other employees. In this case, John should immediately intervene and remonstrate the co-workers for their comments. He should also monitor the situation and make sure that harassment does not continue subsequently. In addition, he should have a clear and publicized anti-harassment policy in place. Finally, John should make sure that a complaint procedure is in place that is not only effective but also protects the complainant from retribution.
Andrew Hamilton is an attorney in the Employment Law Practice Group at the McLane Law Firm, and can be reached at 603-628-1260 or [email protected]. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth as well as Woburn, Massachusetts.