IGNORANCE IS NOT BLISS: RELIGIOUS ACCOMMODATION AFTER THE SUPREME COURT’S DECISION IN EEOC v. ABERCROMBIE & FITCH STORES, INC.

I.  Introduction

Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate religious practice that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.
However, should an employer be liable under Title VII if they do not have actual knowledge of the need to accommodate a religious practice? Under a heightened standard imposed on employers by the United States Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc., the answer is "yes". While the ruling should not cause most companies any employment problems of "biblical proportions", it does serve as a warning to employers to pay attention for potential religious accommodation issues, be mindful of recent guidelines of the Equal Employment Opportunity Commission ("EEOC"), and to evaluate their current interview, hiring and employment policies.


II.  The Abercrombie "Look"
Abercrombie & Fitch ("Abercrombie") was founded in 1892 as a high-end outfitter for hunting and fishing, but the once elite company went bankrupt in 1976. A couple of years later the defunct company’s name was purchased and the new company shifted its focus to selling pricey "neo-preppy" clothing aimed at teenagers and young adults. Abercrombie pushed a very sexualized branding in its advertising and marketing in television commercials and in its stores. The company also openly promoted an elitist and exclusionary branding to its products. When asked once why he refused to make clothes in larger sizes for women, Abercrombie CEO Michael Jeffries stated the following:
"In every school there are the cool and popular kids and the not-so-cool kids. We go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong in our clothes, and they can’t belong. Are we exclusionary? Absolutely."

In the same interview, Jeffries noted that the company only hired good-looking people to sell their products because they attracted other good-looking people. To that end, Abercrombie imposed what it called its "Look Policy" on its young sales staff. Instead of being called sales people, they were given the title of "models". The Look Policy set very strict standards and guidelines, including detailed charts as to what hairstyles both female and male employees were allowed to have, and what clothes they were supposed to wear to fit into Abercrombie’s image. The look policy was strictly enforced. One particular part of the Look Policy, which would play a key role in the Supreme Court case, read as follows:

"For example, head coverings, including baseball caps, are not permitted. For certain purposes, such as religion or disability, however, associates may be permitted to wear approved head coverings."

III.  Samantha Elauf Applies to Work at Abercrombie


In 2008, Samantha Elauf, a practicing Muslim, applied for a position at a Tulsa, Oklahoma Abercrombie store. Heather Cooke, the store’s assistant manager, subsequently interviewed the 17-year-old girl. As part of her religious practice, Elauf wears a headscarf (or hijab), and she did so in her interview. During the interview, Elauf and Cooke made no mention of the headscarf, nor did Elauf indicate that she would need any religious accommodation.

Cooke gave Elauf a favorable rating on her interview, which qualified Elauf to be hired. However, Abercrombie’s Look Policy, prohibited head coverings and caps, and Cooke was concerned that Elauf’s headscarf would conflict with this policy. When Cooke contacted the district manager, Randall Johnson, to determine whether the headscarf constituted a "cap" within the meaning of the Look Policy, Johnson indicated that the headscarf would violate the policy. Although Cooke informed Johnson that she believed Elauf wore the headscarf because of her faith, Johnson directed Cooke to lower Elauf’s rating on the appearance portion of the evaluation, which caused Elauf’s overall score to fall below the threshold necessary to be hired. Accordingly, Abercrombie did not hire Elauf. It is noteworthy that Abercrombie’s written policy did provide for making an accommodation for religious practices.

IV.  Elauf's Religious Discrimination Lawsuit in the Lower Courts

The EEOC sued Abercrombie on behalf of Elauf, alleging that Abercrombie violated Title VII by refusing to hire Elauf because of her headscarf. In response, Abercrombie argued that Elauf had a duty to inform the company that she required an accommodation from the Look Policy, and in essence, stated that Title VII did not impose a duty to "guess" whether someone needed a religious accommodation. The federal trial court granted summary judgment in favor of the EEOC on the ground that Abercrombie had actual notice of Elauf’s religious practice of wearing a headscarf because of Cooke’s assumptions about Elauf’s religion and reason for wearing the headscarf.

In reversing the trial court’s decision and granting summary judgment in favor of Abercrombie, the United States Court of Appeals for the Tenth Circuit concluded that ordinarily an applicant (or employee) must establish that she informed the employer that she needed an accommodation for a particular religious practice due to a conflict between the practice and the employer’s work rules.

V.  The Supreme Court Sets a Heightened Standard for Employers

The U.S. Supreme Court reversed the ruling of the Tenth Circuit in an 8 to 1 decision. In doing so, the Supreme Court held that, to prevail in a disparate-treatment claim, "an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision," not that the employer had knowledge of his need. According to the Court, while some anti-discrimination statutes, such as the Americans with Disabilities Act of 1990, impose a knowledge requirement, Title VII does not. Instead, Title VII prohibits certain motives. As such, "an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." (emphasis added). In other words, "[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions." (emphasis added). Despite the Court’s ruling in this regard, the Court recognized that the applicant (or employee) must actually require an accommodation for the employer to violate Title VII.

In essence, the Supreme Court held that actual knowledge is not required to trigger an employer’s duty to accommodate a religious practice, and that suspicion alone could be enough to impose liability. In this case, it was undisputed that the Abercrombie Assistant Manager at least suspected the headscarf was worn for religious reasons, and that suspicion resulted in Elauf not being hired.

The Court did note in its decision that the motive requirement may not be met if the employer does not suspect that the practice in question is a religious practice. Although the Court declined to specifically address this issue, the Court indicated that an employer might avoid liability if the evidence shows that the employer neither suspected nor had knowledge that a practice is a religious practice.

Where does this leave employers? As a general practice, it is a wise idea for employers to avoid asking applicants about their religious practices, or making unsupported assumptions based on ethnic or religious stereotyping. But in light of the Supreme Court’s decision, and employer who has any reason to believe or even suspect an accommodation may be needed should consider opening up a dialogue with the applicant to begin the interactive process. This could involve:

• Explaining the relevant work rule


• Asking if the applicant could comply with the workplace requirement or would an accommodation be required




Analysis of whether required/requested accommodation is reasonable or would impose an undue hardship





If unclear, seek advice from legal counsel

VI.  EEOC Issues Guidelines for Accommodating Religious Practices

On March 6, 2014, the EEOC issued a new technical assistance publication addressing workplace rights and responsibilities with respect to religious dress and grooming under Title VII. The question-and-answer guide, entitled

"Religious Garb and Grooming in the Workplace: Rights and Responsibilities," and an accompanying fact sheet, is intended to offer practical advice for employers and employees, and presents numerous case examples based on the EEOC's litigation.

Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or an Orthodox Jewish woman's practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

As noted above, employers covered by Title VII must accommodate exceptions to their usual rules or preferences to permit applicants and employees to follow religiously mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer's business. Topics covered in the guidelines include:

• Prohibitions on job segregation, such as assigning an employee to a non-customer service position because of his or her religious garb






Accommodating religious grooming or garb practices while ensuring employer workplace needs






Avoiding workplace harassment based on religion, which may occur when an employee is required or coerced to forgo religious dress or grooming practices as a condition of employment






Ensuring there is no retaliation against employees who request religious accommodatio

What are the major points that employers should note from the EEOC’s guidelines? They are as follows:

• "Magic words" are not required for an accommodation request if it is obvious that a particular practice is religiously-motivated and conflicts with a work policy

• An employer cannot justify a refusal to accommodate based on its belief that the employee’s religious beliefs are not "sincerely held"






Title VII defines religion very broadly to include not only traditional, organized religions but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others






Title VII protects employees who are discriminated against because they profess no religion






Employer must show actual "undue hardship" and not speculative hardship






Customer complaints or preference is not an undue hardship and not a defense for failure to accommodate






Co-workers' disgruntlement or jealousy about the religious accommodation is not considered undue hardship






Segregating the employee or moving the employee to a position not dealing with customers violates Title VII






When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons

Case examples in the EEOC guidelines include the following:

EXAMPLE 1 - New Observance

Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli's observance can be sincerely held even though it is recently adopted.

EXAMPLE 2 - Observance That Only Occurs at Certain Times or Irregularly

Afizah is a Muslim woman who has been employed as a bank teller at the ABC Savings & Loan for six months. The bank has a dress code prohibiting tellers from wearing any head coverings. Although Afizah has not previously worn a religious headscarf to work at the bank, her personal religious practice has been to do so during Ramadan, the month of fasting that falls during the ninth month of the Islamic calendar. The fact that Afizah adheres to the practice only at certain times of the year does not mean that her belief is insincere.

EXAMPLE 3 - Employment Decision Based on Customer Preference

Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew's business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh's perceived religion. Adarsh's termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.

Employers may be able to prevent this type of religious discrimination from occurring by taking steps such as training managers to rely on specific experience, qualifications, and other objective, non-discriminatory factors when making employment decisions. Employers should also communicate clearly to managers that customer preference about religious beliefs and practices is not a lawful basis for employment decisions. 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. Co-workers' disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference.

EXAMPLE 4 - Exception to Uniform Policy as a Religious Accommodation

Based on her religious beliefs, Ruth adheres to modest dress. She is hired as a front desk attendant at a sports club, where her duties consist of checking members' identification badges as they enter the facility. The club manager advises Ruth that the club has a dress code requiring all employees to wear white tennis shorts and a polo shirt with the facility logo. Ruth requests permission as a religious accommodation to wear a long white skirt with the required shirt, instead of wearing shorts. The club grants her request, because Ruth's sincerely held religious belief conflicts with the workplace dress code, and accommodating her would not pose an undue hardship. If other employees seek exceptions to the dress code for non-religious reasons such as personal preference, the employer is permitted to deny their requests, even though it granted Ruth a religious accommodation.

How will an employer know when it must consider making an exception to its dress and grooming policies or preferences to accommodate the religious practices of an applicant or employee? Typically, the employer will advise the applicant or employee of its dress code or grooming policy, and subsequently the applicant or employee will indicate that an exception is needed for religious reasons. Applicants and employees will not know to ask for an accommodation until the employer makes them aware of a workplace requirement that conflicts with their religious practice. The applicant or employee need not use any "magic words" to make the request, such as "accommodation" or "Title VII." If the employer reasonably needs more information, however, the employer and the employee should discuss the request. In some instances, even absent a request, it will be obvious that the practice is religious and conflicts with a work policy, and therefore that accommodation is needed.

EXAMPLE 5 - Employer Knowledge Insufficient

James's employer requires all of its employees to be clean-shaven. James is a newly hired employee, and was hired based on an online application and a telephone interview. When he arrives the first day with an unshorn beard, his supervisor informs him that he must comply with the "clean-shaven" policy or be terminated. James refuses to comply, but fails to inform his supervisor that he wears his beard for religious reasons. James should have explained to his supervisor that he wears the beard pursuant to a religious observance. The employer did not have to consider accommodation because it did not know that James wore his beard for religious reasons.

EXAMPLE 6 - Employer Knowledge Sufficient

Same facts as above but, instead, when James's supervisor informs him that he must comply with the "clean-shaven" policy or be terminated, James explains that he wears the beard for religious reasons, as he is a Messianic Christian. This is sufficient to request accommodation. The employer is permitted to obtain the limited additional information needed to determine whether James's beard is worn due to a sincerely held religious practice and, if so, must accommodate by making an exception to its "clean-shaven" policy unless doing so would be an undue hardship.

EXAMPLE 7 - Employer Believes Practice Is Religious and Conflicts with Work Policy

Aatma, an applicant for a rental car sales position who is an observant Sikh, wears a chunni (religious headscarf) to her job interview. The interviewer does not advise her that there is a dress code prohibiting head coverings, and Aatma does not ask whether she would be permitted to wear the headscarf if she were hired. There is evidence that the manager believes that the headscarf is a religious garment, presumed it would be worn at work, and refused to hire her because the company requires sales agents to wear a uniform with no additions or exceptions. This refusal to hire violates Title VII, even though Aatma did not make a request for accommodation at the interview, because the employer believed her practice was religious and that she would need accommodation, and did not hire her for that reason. Moreover, if Aatma were hired but then instructed to remove the headscarf, she could at that time request religious accommodation.

EXAMPLE 8 - Assigning Employee to "Back Room" Because of Religious Garb

Nasreen, a Muslim applicant for an airport ticket counter position, wears a headscarf, or hijab, pursuant to her religious beliefs. Although Nasreen is qualified, the manager fears that customers may think an airport employee who is identifiably Muslim is sympathetic to terrorist hijackers. The manager, therefore, offers her a position in the airline's call center where she will only interact with customers by phone. This is religious segregation and violates Title VII.

As a best practice, managers and employees should be trained that the law may require making a religious exception to an employer's otherwise uniformly applied dress or grooming rules, practices, or preferences. They should also be trained not to engage in stereotyping about work qualifications or availability based on religious dress and grooming practices. Many EEOC settlements of religious accommodation cases provide for the employer to adopt formal religious accommodation procedures to guide management and employees in handling these requests, as well as annual training on this topic.

May an employer accommodate an employee's religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work? Yes, if the employee's religious beliefs permit covering the attire or item. However, requiring an employee's religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee's religious beliefs.

EXAMPLE 9 - Covering Religious Symbol Contrary to Individual's Religious Beliefs

Edward practices the Kemetic religion, an ancient Egyptian faith, and affiliates himself with a tribe numbering fewer than ten members. He states that he believes in various deities and follows the faith's concept of Ma'at, a guiding principle regarding truth and order that represents physical and moral balance in the universe. During a religious ceremony he received small tattoos encircling his wrist, written in the Coptic language, which express his servitude to Ra, the Egyptian god of the sun. When his employer asks him to cover the tattoos, he explains that it is a sin to cover them intentionally because doing so would signify a rejection of Ra. Therefore, covering the tattoos is not a reasonable accommodation, and the employer cannot require it absent undue hardship.

EXAMPLE 10 - "Image"

Jon, a clerical worker who is an observant Jew, wears tzitzit (ritual knotted garment fringes at the four corners of his shirt) and a yarmulke (or skull cap) in conformance with his Jewish beliefs. XYZ Temps places Jon in a long-term assignment with one of its client companies. The client asks XYZ to notify Jon that he must remove his yarmulke and his tzitzit while working at the front desk, or assign another person to Jon's position. According to the client, Jon's religious attire presents the "wrong image" and also violates its dress code prohibiting any headgear and requiring "appropriate business attire." XYZ Temps may not comply with this client request without violating Title VII.

The client also would violate Title VII if it changed Jon's duties to keep him out of public view, or if it required him not to wear his yarmulke or his tzitzit when interacting with customers. Assigning Jon to a position out of public view is segregation in violation of Title VII. Moreover, because notions about customer preference (real or perceived) do not establish undue hardship, the client must make an exception to its dress code to let Jon wear his religious garb during front desk duty as a religious accommodation. XYZ should strongly advise its client that the EEO laws require allowing Jon to wear this religious garb at work and that, if the client does not withdraw its request, XYZ will place Jon in another assignment at the same rate of pay and decline to assign another worker to the client.

An employer's reliance on the broad rubric of "image" or marketing strategy to deny a requested religious accommodation may amount to relying on customer preference in violation of Title VII, or otherwise be insufficient to demonstrate that making an exception would cause an undue hardship on the operation of the business.

EXAMPLE 11 - "Image"

Tahera, an applicant for a retail sales position at a national clothing company that carries current fashions for teens, wears a headscarf in accordance with her Muslim religious beliefs. Based on its marketing strategy, the company requires sales personnel to wear only clothing sold in its stores, and no headgear, so that they will look like the clothing models in the company's sales catalogues. Although the company believes that Tajera wears a headscarf for religious reasons, the company does not hire her because it does not want to make an exception. While the company may maintain its dress and grooming rule for other sales personnel, it must make an exception for Tahera as a religious accommodation in the absence of employer evidence of undue hardship.

In many jobs for which employers require employees to wear uniforms (e.g., certain food service jobs or service industry jobs), the employee's beliefs may permit accommodation by, for example, wearing the item in the company uniform color(s). Employers should ensure that front-line managers and supervisors understand that if an employee's proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.

EXAMPLE 12 - Public Employee

Elizabeth, a librarian at a public library, wears a cross as part of her Catholic religious beliefs. In addition, after church services she attends on Ash Wednesday each year, Elizabeth arrives at work with a black ash mark on her forehead in the shape of a cross, which she leaves on until it wears off. Her new supervisor directs her not to wear the cross in the future while on duty, and to wash off the ash mark before reporting to work. Because Elizabeth's duties require her to interact with the public as a government employee, the supervisor fears that her cross and ash mark could be mistaken as government endorsement of religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. He cites the need to avoid any appearance of religious favoritism by government employees interacting with the public, and emphasizes that librarians must be viewed as impartial with respect to any information requests from library patrons. However, because the librarian's cross and ash mark are clearly personal in this situation, they would not cause a perception of government endorsement of religion. Accordingly, accommodating Elizabeth's religious practice is not an undue hardship under Title VII.

EXAMPLE 13 - Public Employee

Gloria, a newly hired municipal bus driver, was terminated when she advised her supervisor during new-employee orientation that due to the tenets of her faith (Apostolic Pentecostal), she needs to wear a skirt rather than the pants required by the transit agency dress code. Absent evidence that the type of skirt Gloria must wear would pose an actual safety hazard, no undue hardship would have been posed by allowing this dress code exception, and Gloria's termination would violate Title VII.

Government agency employers, like private employers, must generally allow exceptions to dress and grooming codes as a religious accommodation, although there may be limited situations in which the need for uniformity of appearance is so important that modifying the dress or grooming code would pose an undue hardship. Therefore, it is advisable in all instances for employers to make a case-by-case determination of any needed religious exceptions.

EXAMPLE 14 - Long Hair

David wears long hair pursuant to his Native American religious beliefs. He applies for a job as a server at a restaurant that requires its male employees to wear their hair "short and neat." When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs and offers to wear it in a ponytail or held up with a clip. The manager refuses this accommodation and denies David the position because he has long hair. Since David could have been accommodated without undue hardship by wearing his hair in a ponytail or held up neatly with a clip, the employer violated Title VII.

EXAMPLE 15 - Facial Hair

Prakash, who works for CutX, a surgical instrument manufacturer, does not shave or trim his facial hair because of his Sikh religious observance. When he seeks a promotion to manage the division responsible for sterilizing instruments, his employer tells him that he must shave or trim his beard because it may contaminate the sterile field. All division employees are required to be clean-shaven and wear a facemask. When Prakash explains that he does not trim his beard for religious reasons, the employer offers to allow Prakash to wear two facemasks instead of trimming his beard. Prakash thinks that wearing two masks is unreasonable and files a Title VII charge. CutX will prevail because it offered a reasonable accommodation that would eliminate Prakash's religious conflict with the hygiene rule.

EXAMPLE 16 - Facial Hair

Raj, a Sikh, interviews for an office job. At the end of the interview, he receives a job offer but is told he will have to shave his beard because all office staff is required to be "clean shaven" to promote discipline. Raj advises the hiring manager that he wears his beard unshorn because of his Sikh religious practice. Since no undue hardship is posed by allowing Raj to wear his beard, the employer must make an exception as an accommodation.

EXAMPLE 17 - Clothing Requirements Near Machinery

Mirna alleges she was terminated from her job in a factory because of her religion (Pentecostal) after she told her supervisor that her faith prohibits her from wearing pants as required by the company's new dress code. Mirna requested as an accommodation to be permitted to continue wearing a long but close-fitting skirt. Her manager replies that the dress code is essential to safe and efficient operations on the factory floor, but there is no evidence regarding operation of the machinery at issue to show that close-fitting clothing like that worn by Mirna poses a safety risk. Because the evidence does not establish that wearing pants is truly necessary for safety, the accommodation requested by Mirna does not pose an undue hardship.

EXAMPLE 18 - Head Coverings That Pose Security Concerns

A private company contracts to provide guards, administrative and medical personnel, and other staff for state and local correctional facilities. The company adopts a new, inflexible policy barring any headgear, including religious head coverings, in all areas of the facility, citing security concerns about the potential for smuggling contraband, interfering with identification, or use of the headgear as a weapon. To comply with Title VII, the employer should consider requests to wear religious headgear on a case-by-case basis to determine whether the identified risks actually exist in that situation and pose an undue hardship. Relevant facts may include the individual's job, the particular garb at issue, and the available accommodations. For example, if an individual's religious headgear is or can be worn in a manner that does not inhibit visual identification of the employee, and if temporary removal may be accomplished for security screens and to address smuggling concerns without undue hardship, the individual can be accommodated.

EXAMPLE 19 - Kirpan

Harvinder, a Sikh who works in a hospital, wears a small (4-inch), dull, and sheathed kirpan (symbolic miniature sword) strapped and hidden underneath her clothing, as a symbol of her religious commitment to defend truth and moral values. When Harvinder's supervisor, Bill, learned about her kirpan from a co-worker, he instructed Harvinder not to wear it at work because it violated the hospital policy against weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh code of conduct, and gave him literature explaining that the kirpan is a religious artifact, not a weapon. She also showed him the kirpan, allowing him to see that it was no sharper than the butter knives found in the hospital cafeteria. Nevertheless, Bill told her that her employment at the hospital would be terminated if she continued to wear the kirpan at work. Absent any evidence that allowing Harvinder to wear the kirpan would pose an undue hardship in the factual circumstances of this case, the hospital is liable for denial of accommodation.

EXAMPLE 20 - Retaliation for Requesting Accommodation

Salma, a retail employee, requests that she be permitted to wear her religious headscarf as an exception to her store's new uniform policy. Joe, the store manager, refuses. Salma contacts the human resources department at the corporate headquarters. Despite Joe's objections, the human resources department instructs him that under the circumstances there is no undue hardship and that he must grant the request. Motivated by reprisal, Joe shortly thereafter gives Salma an unjustified poor performance rating and denies her request to attend training that he approves for her co-workers. This violates Title VII.

Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.

EXAMPLE 21 - Co-Worker Harassment

XYZ Motors, a large used car business, has several employees who are observant Sikhs or Muslims and wear religious head coverings. A manager becomes aware that an employee named Bill regularly calls these co-workers names like ‘diaper head," "bag head," and "the local terrorists," and that he has intentionally embarrassed them in front of customers by claiming that they are incompetent. Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to stop the conduct by anyone under their control.

Religious harassment under Title VII may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment. Religious harassment may also occur when an employee is subjected to unwelcome statements or conduct based on religion. Harassment may include offensive remarks about a person's religious beliefs or practices, or verbal or physical mistreatment that is motivated by the victim's religious beliefs or practices. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, such conduct rises to the level of illegal harassment when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment action (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or even a third party who is not an employee of the employer, such as a client or customer.

An employer is liable for harassment by co-workers and third parties where it knew or should have known about the harassment and failed to take prompt and appropriate corrective action. An employer is always liable for harassment by a supervisor if it results in a tangible employment action, such as the harassment victim being fired or demoted. Even if the supervisor's harassment does not result in a tangible employment action, the employer will still be liable unless it exercised reasonable care to prevent and correct promptly any harassing behavior (such as having an effective complaint procedure) and the harassed employee unreasonably failed to take advantage of opportunities to prevent or correct it (such as failing to use the complaint procedure).

Workplace harassment and its costs are often preventable. Clear and effective policies prohibiting ethnic and religious slurs and related offensive conduct are essential. Confidential complaint mechanisms for promptly reporting harassment are critical, and these policies should encourage both victims and witnesses to come forward. When harassment is reported, the focus should be on action to end the harassment and correct its effects on the complaining employee. Employers should have a well-publicized and consistently applied anti-harassment policy that clearly explains what is prohibited, provides multiple avenues for complaints to management, and ensures prompt, thorough, and impartial investigations and appropriate corrective action.

The policy should also assure complainants that they are protected against retaliation. Employees who are harassed based on religious belief or practice should report the harassment to their supervisor or other appropriate company official in accordance with the procedures established in the company's anti-harassment policy.

Once an employer is on notice of potential religious harassment, the employer should take steps to stop the conduct. To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of abusive or insulting conduct, even absent a complaint.





VII.  Reasonable/Unreasonable Accommodations?

Court cases illustrate how case-by-case and fact intensive the process of reasonable accommodation can be, and the high cost of mistakes or poor judgment. This is illustrated in a case where an employer’s use of a high-tech device to stay in compliance with the Fair Labor Standards Act resulted in a large dollar jury verdict as well as continued scrutiny from the EEOC.

Accurate time-keeping of employee work hours is a requirement of the FLSA, but employers routinely have to deal with employees who forget to properly clock-in or clock-out, or who sometimes arrange for friends/co-workers to falsify work hours by having them clock-in for the otherwise absent employee. One high-tech solution that employers have started using is biometric devices, which scan an employee’s unique fingerprint or handprint to simplify the process and to guarantee that the person clocking-in is the actual employee. How could anything go wrong with such a foolproof and elegant solution? That question would best be directed to mining company Consol Energy, Inc.

Consol operates a coalmine in West Virginia, and utilizes a biometric hand scanning　system to track employee work hours for purposes of payroll and FLSA compliance. One employee, Christian Beverly Butcher, told his supervisor that he could not comply with the hand scanning policy because he believed the technology has a connection to the "mark of the beast" and the Antichrist, as alluded to in the Book of Revelation in the New Testament of the Bible.

As a proposed reasonable accommodation, the company offered to allow Butcher to scan his left hand with his palm up, which he declined. Butcher resigned, stating that he was doing so involuntarily. He brought his complaint to the EEOC, which filed suit on his behalf against the company, alleging that Consol had violated Title VII by failing to reasonably accommodate Butcher’s sincerely held religious beliefs.

A federal judge in West Virginia denied Consol’s effort to have the lawsuit dismissed on a motion for summary judgment, and in January 2015, a jury ruled in Butcher’s favor and awarded $150,000.00 in compensatory damages. The EEOC also sought an additional $413,000 in front and backpay. Adding insult to injury, the EEOC later moved the District Court to grant an injunction barring the company from forcing its employees to use biometric hand scanning systems, arguing that there is a risk the company will continue to violate anti-discrimination laws.

However, slightly different facts can yield significantly different results. In Yeager v. FirstEnergy Generation Corp. (6^th Cir.), the court found in favor of the employer, where the employee refused to provide a Social Security number because he considered it the "mark of the beast."　 The Sixth Circuit held an employer has no duty to accommodate a religious belief where such an accommodation would violate a federal statute, which in this case, required the employer to collect and report the Social Security numbers of their employees.

VIII.  "Sincerely Held" Beliefs

As noted above, Title VII construes religion very broadly, and in religious discrimination cases, courts are often reluctant to "play God" by deciding what is or is not a sincerely held religious belief or practice. The cases usually hinge on whether the employer　reasonably　accommodated the employee’s religious conflict with a workplace policy, or whether the requested accommodation imposed an undue hardship on the employer.　 As noted in an earlier article,

"The Employee with the Dragon Tattoo", even tattoos and piercings have been recognized as sincerely held religious practices. However, sometimes even the courts find that certain purported "sincerely held" beliefs do not pass the smell test.

In Marshel Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4^th Dist.), the California Court of Appeals has held that a prison guard’s self-created church of "Sun Worshiping Atheism" was not a protected religion, and the employer had no duty to accommodate the plaintiff’s belief in getting a full night’s sleep by waiving mandatory overtime hours.

When hired at the prison,　Marshel Copple was told there was mandatory overtime. However, shortly after being hired, he requested to work only 8 hour shifts based on Sun Worshiping Atheism’s religious tenets of praying in the sun, exercising, socializing, getting fresh air, sleeping well and being skeptical in all things.　 When the prison declined to accommodate his request, he refused to work three overtime shifts and subsequently resigned, claiming constructive discharge. He filed an EEOC Charge, which was dismissed and subsequently brought suit under California’s Fair Employment and Housing Act.　 Following a summary judgment ruling against him in a lower court, he appealed the adverse ruling.

In affirming the dismissal of the lawsuit, the California appellate court held that religions address "fundamental and ultimate questions having to do with deep and imponderable matters", and that Sun Worshiping Atheism was simply a practice of living a healthy lifestyle, with none of the trappings of a religion.

IX.  Conclusion

Employers cannot anticipate every possible religious practice that may conflict with an employment policy in today’s diverse and multi-cultural workplace. However employers need not become theological scholars to avoid the "unholy war" of litigation, but instead address each issue that arises on a case-by-case basis in an interactive process with the employee. In light of the ruling in EEOC v. Abercrombie & Fitch Stores, Inc., employers also need to be alert to those situations where the need for accommodation may not be actually known, or overtly requested, but where there is enough information to warrant further inquiry.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com