Last October, the Tenth Circuit Court of Appeals dealt the Equal Employment Opportunity Commission (EEOC) a blow when it reversed a religious failure to accommodate summary judgment ruling in the EEOC's favor and remanded the case with instructions to grant summary judgment in favor of the defendant, retailer Abercrombie & Fitch Stores. See EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-5110 (10th Cir. 2013).
In the Abercrombie case, the Tenth Circuit found that Abercrombie was entitled to summary judgment as a matter of law because there was no genuine dispute of material fact that Ms. Elauf (the individual on whose behalf the EEOC sued) never informed Abercrombie prior to its hiring decision that she wore her headscarf, or “hijab,” for religious reasons, and that she needed an accommodation for that practice due to a conflict between the practice and Abercrombie’s clothing policy. In the decision the Court repeatedly referenced the EEOC's Compliance Manual and other publications related to its position on accommodations in the workplace.
On March 6, 2014, the EEOC issued a new publication, along with a Fact Sheet, regarding religious garb and grooming in the workplace, which provides guidance on the topic, including the following:
- Title VII protects all aspects of religious observances, practices and beliefs and defines religion broadly to include not only traditional religions, but also religious beliefs that seem illogical or unreasonable, are new or uncommon, and/or are not part of a formal church or sect, as long as the beliefs are "sincerely held."
- Employers cannot exclude employees from positions due to customer preferences or desired images.
- Employers cannot assign employees to non-customer contact positions due to customer preferences.
- An employer may accommodate religious dress or grooming (such as tattoos) by offering to have the employee cover the item or attire, provided that the accommodation does not conflict with the religious belief.
- Applicants who request religious accommodations are protected from retaliation.
- Employers have an obligation to stop religious-based harassment.
- While safety, security, or health may justify denying a religious accommodation, the employer may only do so if the accommodation would actually pose an undue hardship.
Interestingly, this newest publication appears to recognize the Abercrombie decision (specifically in its Example No. 5 regarding an employer's insufficient knowledge that an employee might need an accommodation) yet criticize the retailer (specifically in its Example No. 10 addressing an employer's "image" requirements) for its image policy.
Employers should be particularly mindful of the EEOC's positions that the religious accommodation at issue may not relate to any recognized or established religion, and that only accommodations which pose an undue hardship may be denied.