Commentary: In July, the U.S. Equal Opportunity Commission sued the world’s largest package delivery service, United Parcel Services, claiming that UPS failed to hire, promote and accommodate Muslims, Rastafarians and Christians whose religions dictate grooming practices that UPS found objectionable. The lawsuit claims that UPS prohibits male employees who are supervisors or who have dealings with customers from wearing beards or growing their hair below collar length.

One example in the lawsuit is that of a Muslim applying for a driver’s helper position in New York who wears a beard as part of his religious beliefs. He was told to shave if he wanted the position and that “God would understand.” Another example in the lawsuit is that of a Rastafarian load supervisor in Fort Lauderdale who does not cut his hair as part of his religious beliefs and who was told “we don’t want any employees looking like women on management teams.”

Also see: Where do employee rights start, and how far do they go?

The lawsuit against UPS comes just weeks after the U.S. Supreme Court ruled against retailer Abercrombie & Fitch on another religious discrimination claim. There, the company refused to hire a then 17-year-old woman in Oklahoma for a position at a store because she wore a “hijab,” or head scarf. The retailer claimed that the scarf, and all other head coverings, did not conform to the company’s dress code.

While UPS has faced similar claims in the past, this is the first EEOC suit claiming the company engaged in a systematic, nationwide violation of discrimination laws. Abercrombie has altered its dress code since 2008, when the claim was first filed, allowing workers “to be more individualistic.” 

What is the applicable law?

Both of these suits claim that the actions of the employers violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based upon (among other things) religion. As the Supreme Court stated in its Abercrombie decision, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” In an interview about the UPS lawsuit, EEOC lawyer, Elizabeth Fox-Solomon aptly stated, “No one in this country should have to choose between a job and their religious beliefs and practices.”

Also see: Learn the ‘business of religion’

Further, under Title VII, unless it would pose an undue hardship on the employer, an employer must make reasonable accommodations to its employees and cannot refuse to hire or promote an applicant/employee if the need for a religious accommodation is a motivating factor. “Undue hardship” on an employer is defined as an action that imposes “more than a minimal burden” on the business. Examples include causing a lack of necessary staffing, jeopardizing security, or costing the employer more than a minimal amount. What is considered “minimal” by an employer and the EEOC can vary significantly.

What should employers do?

These cases make clear that religious discrimination is an area of strong interest (and enforcement attention) of the EEOC.  It underscores the need for policies and practices that every employer should follow:

  • Employers should ensure that managers know the EEOC guidelines, as well as the company’s policies, by providing periodic training to all managers. These trainings should especially cover policies relating to scheduling, dress codes and grooming standards – three of the most common areas of company policies that can run afoul of certain religious practices.
  • There should be strict guidance provided to hiring managers prohibiting any jokes or sarcasm directed at any religious belief. These statements, even if made in a non-serious fashion, have no place in the workplace and often form objective proof of and the basis for claims.
  • Hiring managers should be aware that an applicant is not required to make a specific request for a religious accommodation, nor may an employer make an adverse hiring, promotion or termination decision based upon “actual knowledge, suspicion or merely a hunch” that an applicant will request an accommodation.
  • Policies should require that all managers inform their HR department if an existing or prospective employee requests an accommodation or if they believe such a request will be made.
  • Hiring managers should not ask employees or applicants directly if they are groomed or wearing attire for religious reasons. This type of inquiry can lead to a discussion that may trigger a later religious discrimination claim.
  • Employers should carefully consider all options available to them before denying an accommodation request, especially on the basis of undue hardship to the company.

Also see: EEOC, court flip flops reveal challenges to employers facing accommodation requests

Religious discrimination cases, even those resolved prior to any formal lawsuit, are costly and distracting for a business. Implementing an HR training program that reaches all levels of an organization is a wise investment. Employers also should seek the counsel of HR and employment law professionals to learn best practices on how to prevent discrimination of all types in the workplace.

Jay Starkman is CEO of Engage PEO, a human resources and benefits services provider.

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