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EEOC warns firms on religious bias

Businesses beware: The Equal Employment Opportunity Commission has sent a strong warning that it will not tolerate discrimination against workers or job applicants based on their religious clothing or grooming.

For example, companies cannot assign employees to a “back room” out of fear that their religious garb will intimidate or offend their clients or customers.

“If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients or co-workers, the employer is unlawfully discriminating in employment based on religion,” the EEOC stated in a published document known as a guidance. “Assigning applicants or employees to a non-customer contact position because of actual or feared customer preference violates Title VII’s prohibition on limiting, segregating or classifying employees based on religion.”

Religious discrimination claims received by the EEOC nearly doubled from fiscal 2001 (which ended just weeks after the Sept. 11 terrorist attacks) and fiscal 2011, when they peaked at 4,151. The number dropped to 3,751 for fiscal 2013, which ended Sept. 30.

How many of those claims centered on religious dress or grooming isn’t known, but such cases are not hard to find in Maryland.

A Muslim woman named Khadijah Salim alleged that an assisted-living center in Ellicott City rejected her for a certified nursing assistant position because she said she would not remove her hajib, a head scarf, while on the job. Morningside House admitted no wrongdoing but paid $25,000 in August 2012 to settle the claim, which EEOC had brought on Salim’s behalf.

Greenbelt lawyer Jay P. Holland said he has a similar complaint pending before EEOC on behalf of a Jewish client who claims a company took an adverse employment action against him after he wore a yarmulke to work and requested time off for a religious holiday. Holland declined to be more specific, as the case is before the agency.

The commission, by issuing the guidance, is “giving the legal and employer community notice that these issues are going to be looked at very closely by the EEOC,” said Holland, of Joseph, Greenwald & Laake P.A. Guidances “are not binding on the courts, but they can be persuasive,” he added.

The guidance doesn’t “give a lot of loopholes for employers, but that’s the EEOC,” said Bethesda lawyer Richard G. Vernon. “It does reflect the position they will take in an administrative proceeding.”

Vernon, who advises companies, said he became well aware of EEOC’s view of religious bias three years ago when he represented a medical practice being accused of bias by an employee who was fired for refusing to remove a nose ring. The employee said that wearing and displaying the nose ring was an article of her faith, Vernon added.

During the administrative proceeding, Vernon argued the worker did not sincerely hold the religious belief, as she had not worn the ring during her interview or training sessions. He also said the medical practice had a valid health-related policy of prohibiting all facial jewelry except earrings.

The case was settled administratively with the practice paying $20,000, with no admission of liability, said Vernon, who declined to name his client.

The new EEOC guidance, issued March 6, shows the need for employers to train their managers to respect and reasonably accommodate the religious beliefs of employees and job applicants or risk liability, said Vernon, of Lerch, Early & Brewer Chtd.

The United States is becoming “a more complex, multicultural, multinational society,” Vernon said. “These issues are going to come up more and more.”

What not to do

In its guidance, the EEOC gives examples of what employers should not do.

In one example, an airline refused to assign an employee in Muslim dress to the ticket counter because it believed passengers would regard him as “sympathetic to terrorist hijackers.” In another, a coffee shop fired a Hindu barista after nearby construction workers stopped frequenting the store because they believed he was a Muslim and were “uncomfortable” due to the Sept. 11 terrorist attacks.

Title VII of the federal Civil Rights Act of 1964 requires employees to make “reasonable accommodations” to the “sincerely held” religious beliefs of its employees, even when their dress or grooming violates company policy, EEOC stated. For example, a company with a “no beards” policy would have to accommodate someone whose religion forbids shaving, the agency added.

Employers do not have to make such accommodations if doing so would impose an “undue hardship” on the company, which the agency defined as imposing “more than ordinary administrative costs.”

But companies must accommodate religious beliefs even if it spurs jealousy in employees who, for non-religious reasons, want to wear similar clothing or be similarly groomed, the commission added.

“When an exception is made as a religious accommodation, the employer may nevertheless retain its usual dress and grooming expectations for other employees, even if they want an exception for secular reasons,” the EEOC stated. “Coworkers’ disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference.”

EEOC’s guidance might provide “a little bit of an eye-opener for employers,” said attorney Julie A. Reddig, also of Lerch, Early & Brewer.

“It gives them specific examples of what they might [erroneously] think to be appropriate accommodation,” she added. “They cannot segregate employees [in] a back room.”