Race and Color Protections Under Title VII
The most sweeping of the anti-discrimination laws is Title VII of the Civil Rights Act of 1964 – a landmark law that was first created to address the severe racial issues of the ‘60s. Applicable to employers with 15 or more employees, it now protects individuals against employment discrimination on the basis of race, color, religion, national origin or sex.
Race discrimination is also prohibited by Section 1981 of the Civil Rights Act of 1871 (known as “Section 1981”), which applies to all employers, regardless of size. Section 1981 has been applied to claims of discrimination involving religion, nationality and ethnicity, as well.
Workplace discrimination isn’t just illegal. It also increases the risk of costly employee lawsuits that can have devastating financial consequences on your company. Under Title VII, discrimination is prohibited when it comes to:
- Recruiting, hiring and advancement
- You must ensure that job requirements are uniformly and consistently applied to people of all races and colors. Even if a job requirement is applied consistently, it may be unlawful if it is not essential to the job and excludes people of a certain racial group or color more than others. Examples of potentially unlawful practices include:
- Soliciting applications only from sources in which all or most potential employees are of the same race or color
- Requiring applicants to have a certain educational background that is not important for job performance or business needs
- Testing applicants for knowledge, skills or abilities that are not important for job performance or business needs
Unless the information is for legitimate purposes, pre-employment questions about race can suggest that race will be used as a basis for making selection decisions. If the information is used in the selection decision and members of particular racial groups are excluded from employment, the inquiries can be considered discriminatory.
- Harassment/hostile work environment
- Title VII prohibits offensive conduct, such as racial or ethnic slurs, racial jokes, derogatory comments, or other verbal or physical conduct based on an individual’s race/color. To be considered illegal, the conduct has to be unwelcome and offensive, and has to be severe or pervasive. You are required to take appropriate actions to prevent and correct unlawful harassment.
- Compensation and other employment terms, conditions and privileges
- According to Title VII, race or color discrimination may not be the basis for differences in pay or benefits, work assignments, performance evaluations, training, discipline or discharge, or any other area of employment.
- Segregation and classification of employees
- You would be violating Title VII if employees who belong to a protected group are segregated or physically isolated from other employees or customers. In addition, you may not assign employees according to race or color. For example, Title VII prohibits assigning primarily African-Americans to predominantly African-American establishments or geographic areas. Keep in mind, too, that coding applications and/or resumes to designate an applicant’s race constitutes evidence of discrimination.
- Employees are protected from retaliation for opposing a discriminatory practice or for participating in an EEOC proceeding by filing a charge, testifying or assisting.
A closer look at race discrimination
Although Title VII does not include an official definition of “race” and the EEOC has not
adopted one, race generally involves a handful of factors. You may not discriminate against an individual based on:
- Ancestry. There can be considerable overlap between “race” and “national origin,” but they are not identical. Example: Discriminating against a Chinese American due to her Asian ancestry, rather than her Chinese national origin.
- Culture. Includes characteristics related to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech. Example: Making an employment decision based on a person having a so-called “Spanish accent,” even though the accent or manner of speech does not interfere with job performance.
- Race-based illness. The idea that people of particular races may be affected by certain diseases or illnesses. Example: Discriminating against an individual with sickle cell anemia, a genetically transmitted disease that primarily affects persons of African descent. Other diseases, though not directly related to race or ethnicity, may be associated with an employee’s national origin. For example, Native Hawaiians reporting a higher incidence of diabetes.
- Association. This relates to an individual’s association with someone of a particular race. Example: Discriminating against a Caucasian man because he is married to an African- American woman or has a multiracial child, or because he maintains friendships or otherwise associates with people of a certain race.
- Subgroup or “race plus”. This applies to a subgroup of persons in a racial group that may have certain attributes in addition to their race. Example: Refusing to hire African-American women with preschool-age children while accepting other women with preschool age children.
Other race-related factors that require a sensitive, non-discriminatory stance are:
- Physical characteristics. This can include a person’s skin, hair, facial features, height and/or weight.
- Perception. This pertains to the belief that an individual is a member of a particular racial group, even if the individual identifies himself as part of that group.
- “Reverse” race discrimination. All persons are protected from discrimination, including Caucasians.
What about the issue of color?
Like with race, Title VII does not specifically define color, even though it’s another consideration when preventing discrimination. Generally, the courts and the EEOC read “color” to have its commonly understood meaning – pigmentation, complexion, or skin shade or tone. As such, color discrimination occurs when a person is discriminated against based on his lightness, darkness or other color characteristics. Even though race and color clearly overlap, they are not synonymous. Color discrimination can occur among people of different races or ethnicities or among people of the same race or ethnicity.
National Origin and Language Protections Under Title VII
Whether an employee or job applicant’s ancestry is Mexican, Ukrainian, Filipino, Arab, Native American or any other nationality, he or she is entitled to the same employment opportunities and rights as anyone else.
National origin discrimination occurs when you treat people less favorably because they come from a certain place, belong to a particular national group, or are married or associated with someone from a particular national origin.
The EEOC prohibits this under Title VII of the Civil Rights Act of 1964, which covers employers with 15 or more employees. It is also illegal to discriminate against individuals on the basis of national origin or citizenship status under the Immigration Reform and Control Act (IRCA).
National origin discrimination includes negative treatment based on:
- Ethnicity. For example, withholding pay increases or promotions from employees who are Hispanic.
- Physical, linguistic or cultural traits. For example, discriminating against someone based on his traditional African style of dress.
- Perception. For example, discriminating against someone you perceive as Arab based on her speech, mannerisms, name or appearance, regardless of how she identifies herself or whether she is, in fact, of Arab ethnicity.
Be aware that Title VII’s prohibition against national original discrimination often overlaps with the statute’s prohibitions against discrimination based on race or religion. The same set of facts may support a claim of national origin discrimination and religious discrimination when a particular religion is strongly associated with a specific national origin.
For example, suppose an Egyptian employee claims he is being harassed by coworkers about his Arab ethnicity. He also is being subjected to derogatory comments about Islam even though he has told his coworkers that he is Christian. This employee could charge both national origin and religious discrimination.
Diversity in language
As the U.S workforce grows more ethnically diverse, the number of employees who are not native English speakers has increased. Although you may have legitimate business reasons for basing employment decisions on linguistic characteristics, be aware that these characteristics are closely associated with national origin. As a result, you must be certain the business reason for relying on a linguistic characteristic justifies any burden placed on individuals because of their national origin. Similarly, you must carefully scrutinize employment decisions based on accent to ensure they don’t violate Title VII.
Generally, you are protected under Title VII only in cases where effective verbal communication in English is required to perform the job. Examples include teaching, customer service and telemarketing. Even for these positions, however, you must determine whether the individual’s accent truly interferes with his or her ability to perform the job.
A major aspect of Bill’s position as a concierge for XYZ Hotel is assisting guests with directions and travel arrangements. Numerous people have complained that they can’t understand Bill’s heavy Ghanaian accent. Therefore, XYZ notifies Bill that he is being transferred to a clerical position that doesn’t involve extensive spoken communication. The transfer doesn’t violate Title VII because Bill’s accent directly interferes with his ability to perform the functions of the concierge position.
Seeking bilingual staff
Another common workplace situation is requiring staff members to be fluent in languages other than English. If you provide services to Spanish-speaking customers, for instance, you may have a solid business reason for requiring that some of your employees speak Spanish. As with English, fluency requirements for foreign languages must be proven necessary for the position.
A business with a diverse clientele may delegate work based on foreign language ability, as well. For example, you may assign bilingual Spanish-speaking employees to provide services to customers who speak Spanish, while assigning employees who speak only English to English-speaking customers. In most cases, you may lawfully assign comparable work to employees based on their language skills, and are not required to provide additional compensation for work performed in a foreign language.
Beware of English-only rules
Some employers have instituted workplace policies restricting or prohibiting communication in languages other than English, or “English-only rules.” Title VII permits this only under certain circumstances. As with any other workplace policy, an English-only rule must be adopted for nondiscriminatory reasons, such as safety, efficiency or effectiveness, and generally should not be enforced during an employee’s break time. For example:
- For communications with customers, coworkers or supervisors who only speak English
- In emergencies or other situations where employees must speak a common language to promote safety
- For cooperative work assignments where the English-only rule is needed for effectiveness
- To enable a supervisor who speaks only English to monitor the performance of an employee whose job duties require communication with coworkers or customers
XYZ Textile Corp. adopts a policy requiring employees to speak only English in the workplace, including during breaks. Company managers closely monitor Hispanic employees to ensure compliance. Employees who break the rule are terminated. Jose, a native Spanish speaker, files a charge with the EEOC alleging national-origin discrimination. XYZ Textile Corp. counters that the policy was implemented to promote better employee relations. However, because the subsequent investigation reveals no evidence of poor relations caused by foreign-language communication, the English-only rule is unlawful.
Disability Protections Under the Americans with Disabilities Act (ADA)
The Americans with Disabilities Act of 1990 (ADA), which is enforced by the EEOC, makes it unlawful for employers with 15 or more employees to discriminate against a qualified individual with a disability. The ADA Amendments Act (ADAAA), which was signed into law in 2008, expands ADA coverage through a broader interpretation of the types of disabilities it covers.
The legal definition of “disability” is a physical or mental impairment that substantially limits one or more major life activities. (Or put another way, the functions an average person can perform with little or no difficulty, such as walking, breathing, seeing, hearing, speaking, learning and working).
This protection extends to all employment practices, including benefits, firing, hiring, job assignments, layoff, leave, pay, promotion, recruitment and training.
Remember: The ADA does not interfere with your right to hire the best-qualified applicant. Rather, it prohibits you from discriminating against a qualified applicant or employee because of a disability.
In addition to having a substantial impairment, another condition of ADA protection is that the individual be qualified to perform the essential functions of the job with or without reasonable accommodation. As an employer, you should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before recruiting, advertising, hiring, promoting or firing).
- Whether the reason the position exists is to perform a particular function
- The number of other employees available to perform the function or who can share responsibility for the function
- The degree of expertise or skill required to perform the function
Your judgment regarding which functions are essential – along with a written job description prepared before advertising or interviewing for a job – may be considered as evidence by the EEOC should your business practices ever be investigated.
Responsibility for reasonable accommodations
The ADA also requires you to make a reasonable accommodation for a qualified applicant or employee if it would not impose an undue hardship on your business. However, you are not obligated to lower quality or production standards to make an accommodation; nor are you obligated to provide personal-use items, such as glasses or hearing aids.
Frequently, the reasonable accommodation requested by the qualified individual is obvious, typically based on previous life or work experience. However, when the appropriate accommodation is not readily apparent, you must make a reasonable effort to identify one. The best way to do this is to consult with the applicant or employee about the adjustments that would allow him or her to participate in the application process or perform the essential functions of the job.
Reasonable accommodations may include:
- Acquiring or modifying work equipment or devices
- Job restructuring
- Part-time or modified work schedules
- Reassignment to a vacant position
- Adjusting or modifying examinations, training materials or policies
- Providing readers and interpreters
- Making the workplace readily accessible to and usable by people with disabilities
Refusing to provide a reasonable accommodation to a qualified individual with a disability is a violation of the ADA, unless doing so would place an undue hardship on your business. This means that the accommodation would be significantly difficult or expensive, based on the size of your business, your financial resources, and the nature and structure of your operations.
A trucking company conducts job interviews on the second floor of a building without an elevator. The company calls Jane to arrange for an interview for a secretarial position. In the conversation, Jane mentions she uses a wheelchair. Installing an elevator would be an undue hardship for the company, but the employer could offer to the conduct the interview in a first-floor office – an action that could be considered a reasonable accommodation.
Additional ADA coverage
Title 1 of the ADA also covers:
- Medical examinations and inquiries
- It is unlawful to ask applicants if they’re disabled, to inquire about the nature or severity of a disability, or to require an individual to take a medical examination before you offer the job. You may, however, ask applicants questions about their ability to perform job-related functions, as long as the questions are not phrased in terms of a disability. You may also ask applicants to describe or to demonstrate how, with or without reasonable accommodation, they would perform job-related functions.
- Drug and alcohol abuse
- You can’t discriminate against alcoholics or people who have received treatment for previous drug use. You can, however, enforce workplace rules prohibiting employees from working under the influence. Applicants and employees who use illegal drugs are not protected by the ADA and may be denied employment or fired as a result.
Age-Related Protections Under the Age Discrimination in Employment Act (ADEA)
The U.S. workforce is experiencing a surge of older employees, largely due to more Baby Boomers choosing to work later in life rather than retiring. At the same time, age-related discrimination charges are on the rise due to employers overstepping the legal boundaries designed to protect older workers.
Now, more than ever, you need to be mindful of the Age Discrimination in Employment Act of 1967 (ADEA). The law, which applies to businesses with 20 or more employees, protects applicants and employees 40 years of age or older from discrimination in any aspect of employment, including:
- Job assignments
It is also unlawful to retaliate against an employee for opposing age discrimination practices, filing an age discrimination charge, or participating in any investigation or proceeding involving ADEA claims.
Age discrimination and harassment
Be aware that age discrimination can involve harassment that, when frequent or severe, creates a hostile work environment. Examples of harassing comments include, for example, coworkers repeatedly calling an older employee an “old geezer” or “pops” or a boss suggesting “this new technology is probably way over your head.” It can also play out in more subtle actions and attitudes that result in adverse employment decisions, such as:
- A supervisor making encouraging comments about retirement
- Moving an older employee into a smaller office after a company restructuring
- Passing over an older employee for a promotion in favor of a younger individual
- Reassigning an older employee to a job with fewer responsibilities
- No longer sending an older employee on business trips or offering job-related training or courses
Employer rights under the ADEA
Although the ADEA is designed to protect older employees, employers are allowed certain provisions under the law, too. You have the right to:
- Make employment decisions based on age when it’s a “bona-fide occupational qualification” (BFOQ) that is necessary to the normal operation of the business, or when the differentiation is based on reasonable factors other than age. For example, if you were hiring an actor to play the role of a young man, being young and male are bona-fide occupational qualifications. However, if you were hiring actors to be extras in a diverse crowd, the actor could be of any age.
- Observe the terms of seniority system that don’t violate the ADEA. For example, you may promote a 30-year-old employee rather than a 50-year-old employee if the younger worker has been employed longer than the older worker. However, seniority systems may not require or allow the involuntary retirement of any individual based on age.
- Discharge or otherwise discipline an employee for “good cause” (a legitimate, nondiscriminatory business reason). For example, an employee who violates your drug policy may be disciplined or terminated, regardless of age.
Employers can also ask employees to waive their rights or claims under the ADEA, either in settling an ADEA discrimination claim or in connection with a termination agreement. For a waiver to be considered valid, it must:
- Be clear and in writing
- Specifically refer to ADEA rights or claims
- Not waive rights or claims that may arise in the future
- Be in exchange for items more valuable than those the employee is already entitled to
- Advise the individual to consult an attorney before signing the waiver
- Provide at least 21 days to consider the agreement (45 days for a group layoff) and at least seven days to revoke the agreement after signing it
Due to financial difficulties, an Ohio nursing home decides to lay off several employees. In determining whether to lay off a 60-year-old nurse, with more than 20 years’ tenure, and a 23-year-old coworker, they let the 60-year-old go – even though she had substantially more seniority and experience than the other nurse. The nurse sues her employer, claiming the layoff was a pretext for age discrimination. Court evidence shows the older nurse was clearly more experienced than the younger worker and, as a result, was unfairly laid off. Had the younger employee possessed more experience or stronger skills, the decision to terminate the older worker would have been justified.
When an Employee Files a Discrimination Charge with the EEOC
In an ideal, fully compliant work world, discrimination would never occur – certainly not intentionally. But what if, despite your best efforts, one of your managers has acted in a way that puts your business in the spotlight?
Employees and applicants who believe they are the victim of workplace discrimination can file a charge with the EEOC.
In fact, filing a charge is a necessary first step before filing a lawsuit. It’s also what triggers an investigation, where the EEOC explores the charge to determine whether any laws have been violated.
Unlike other government agencies, however, the EEOC rarely sends an investigator to an employer’s facility without notice. Instead, it will schedule an on-site investigation days or weeks in advance, giving you time to prepare and respond to the charge.
First steps with an EEOC charge
You will receive a charge notification package from the EEOC with deadlines for submitting your company’s statement of position (more on that below), as well as responding to written inquiries and document requests. The information in the package is usually brief, where the allegations are summarized in one or two paragraphs.
Obviously, you should take an EEOC charge seriously. Respond to all requests within the prescribed deadlines, or request an extension. Extensions may be granted for a number of reasons, such as the need to seek legal counsel (which is strongly recommended), gather inaccessible or stored documents, identify and interview witnesses, or take other actions to ensure a thorough response to the EEOC’s demands.
As early as possible, ask the investigator what the applicant or employee hopes to gain from filing a charge. Many individuals who file EEOC charges will withdraw their claims in exchange for a “nuisance value” settlement, such as a few weeks’ pay, a letter of recommendation, a written apology, or the right to keep something belonging to the employer (such as a laptop).
From your first contact with the investigator, make sure you establish a positive working relationship and communicate your willingness to cooperate in all aspects of the investigation. That being said, here are some important “don’ts” to follow:
- Don’t admit guilt. Convey the message that although you don’t believe your company has violated the law, you will cooperate with the investigation and, if necessary, take all necessary steps to get into compliance.
- Don’t get defensive with the investigator; rather, show common courtesy.
- Don’t exaggerate or embellish when answering questions or providing requested information. You don’t want to give the impression you are “selling” the company’s position.
- Don’t feel pressured to agree to any request or findings, or to submit to certain demands, until you’ve carefully considered the issues and spoken with your attorney, if applicable.
Preparing documents for review
The charge notification package from the EEOC will explain your recordkeeping obligations. Records pertinent to your case may include:
- Current and past employee handbooks and policy manuals, including policies related to discrimination and harassment
- The charging employee’s personnel file
- Records related to similar previous discrimination complaints
- Personnel records of any individuals accused of discrimination
- Documents related to any internal complains made by the charging party or other employees for similar charges
Depending on the nature of the claim, you may also need:
- Records showing the minority makeup of the company
- Affirmative action plans (if applicable)
- EEO-1 reports
- Organizational charts
- Records related to recruiting efforts and rejected job applicants
- Payroll records
- Job descriptions
Developing a statement of position
The statement of position (SOP) is your opportunity to tell your company’s side of the story in writing. It must be clear and factually accurate. Explain your nondiscriminatory reasons for any challenged actions, and back up your statements with specific examples and documentation.
When preparing the SOP, assume the investigator knows little or nothing about your company or your policies, practices and procedures. Don’t make vague, generalized statements. Instead, use details to demonstrate that your company’s actions were not discriminatory.
The investigation and possible outcomes
If possible, determine ahead of time what the investigator plans to do at your facility. Know who will be interviewed, which documents will be examined, and which areas of the facility will be inspected.
Later, after the EEOC completes the investigation and closes the file, it will issue a right-to-sue notice to the employee (indicating whether the EEOC determined there was a violation). The employee has 90 days to file a lawsuit and attempt to recover damages for the alleged discrimination. In the case of a violation, the EEOC also may bring a lawsuit against your company. Then, if the court or a jury finds you liable for violating the employee’s rights, you’ll be ordered to remedy the violation, which may include:
- Lost wages, including back pay, front pay and prejudgment interest
- Liquidated/double damages (in ADEA and EPA cases involving willful violations)
- Compensatory damages for emotional distress (in Title VII and ADA cases involving intentional discrimination)
- Punitive damages (in Title VII and ADA cases where you acted with reckless disregard of the employee’s rights)
- Attorney’s fees, expert witness fees and other costs
You may also be ordered to take corrective or preventive actions to eliminate the source of the discrimination and reduce the chances of it happening again, such as providing company-wide training. Another step you may need to take is to post employee notices outlining the details of the discrimination charge and informing employees of their rights under EEOC-enforced laws – beyond the mandatory federal postings already required of employers.
Pregnancy-Related Protections Under the Pregnancy Discrimination Act (PDA)
An amendment to Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act prohibits discrimination on the basis of pregnancy, childbirth or related medical conditions. It applies to employers with 15 or more employees, as well as employment agencies, labor organizations and the federal government. In some cases, state laws may also grant job-protected parental leave (paid or unpaid) for childbirth and/or to care for a newborn child.
Under the PDA, women who are pregnant must be treated in the same manner as other applicants or employees with similar abilities or limitations. Specifically, Title VII’s pregnancy-related protections include:
- Hiring and promotions
- You may not refuse to hire or promote a pregnant woman because of her pregnancy, a pregnancy-related condition or the prejudices of coworkers, clients or customers. Along these lines, it important to avoid asking about an applicant’s pregnancy, family plans or childcare arrangements during an interview, and to not allow possible pregnancy-related absences to affect any decisions concerning hiring, promotion, training or other employment opportunities.
- Pregnancy and maternity leave
- You may not single out pregnancy-related conditions to determine an employee’s ability to work. (However, if you require employees to submit a doctor’s statement before you provide leave or pay sick benefits, you may do the same with pregnant employees.)
If an employee is temporarily unable to do her job due to pregnancy, she must be treated the same as any other temporarily disabled employee. For example, if you allow it for temporarily disabled employees, you must also modify tasks, alternate assignments or offer leave without pay to affected pregnant employees.
A pregnant employee must be permitted to work as long as she’s able to perform her job. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, she’s not required to remain on leave until the baby’s birth. You also may not prohibit an employee from returning to work for a predetermined amount of time after childbirth. (If you require employees to provide return-to-work statements from a physician after taking a leave of absence for sickness or disability, you may do the same for employees returning after childbirth.)
Finally, you must hold open a job for a pregnancy-related absence the same length of time as jobs for employees on sick or disability leave.
- Health insurance
- Any health insurance you provide must cover expenses for pregnancy-related conditions on the same basis as other medical conditions. You may not impose an additional or larger deductible, and you must provide the same health benefits for spouses of male employees as you do for spouses of female employees.
- Fringe benefits
- If you provide benefits to employees on medical leave, you must provide the same benefits for those on leave for pregnancy-related conditions.
You must treat employees with pregnancy-related disabilities the same as other temporarily disabled employees with regard to accruing and crediting seniority, calculating vacation time, increasing pay and providing temporary disability benefits.
Also, it is unlawful to retaliate against an individual for complaining about discrimination, filing a charge of discrimination or participating in a discrimination investigation or lawsuit.
Be aware that pregnant women are entitled to additional workplace rights beyond those covered in the PDA – such as eligible leave under the Family and Medical Leave Act (FMLA), and break time for nursing mothers under a provision of the Fair Labor Standards Act (FLSA).
A maternity clothes retailer was charged by the EEOC for refusing to hire qualified female applicants who were pregnant. In the pregnancy discrimination and retaliation lawsuit that followed, a former assistant manager pointed out the employer’s practice of discriminating against pregnant applicants. She claimed the employer then illegally disciplined and fired her because they suspected she was pregnant. This type of conduct clearly violated the Pregnancy Discrimination Act and, as a result, the employer was ordered to pay $375,000 to settle the lawsuit – including damages to the plaintiff and each of the three women previously denied employment because they were pregnant.
Religious Protections and Accommodations Under Title VII
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion in hiring, firing and other terms of employment. While protecting all aspects of religious observance, practice and “sincerely held” beliefs, Title VII broadly defines religion to include traditional, organized religions, as well as newer or less familiar beliefs that aren’t part of a formal church or recognized denomination.
- May not treat employees or applicants more or less favorably because of their religious beliefs or practices, except to the extent that a religious accommodation is warranted. For example, you may not refuse to hire individuals of a certain religion, impose stricter promotion standards on them or require more or different work skills because of an employee’s religious beliefs or practices.
- May not force an employee to participate – or not participate – in a religious activity as a condition of employment.
- Must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship. A reasonable religious accommodation is any adjustment to the work environment that allows employees to practice their religion. Flexible scheduling, voluntary time substitutions or swaps, job reassignments, lateral transfers, modification of grooming requirements, and adjustments to other workplace policies or procedures may all be considered reasonable accommodations, depending on the situation.
- Can show undue hardship if an accommodation requires more than ordinary administrative costs, reduces efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, causes coworkers to perform the accommodated employee’s share of potentially hazardous or burdensome work, or if the particular accommodation conflicts with another law or regulation.
A computer specialist for a software company is a devout Muslim. He is required to attend prayer services in his mosque for a short period on Friday afternoons. Although this conflicts with his work hours, he asks permission to attend services. In this case, the employer must allow a short break once a week for prayer because it’s a reasonable accommodation that is not too costly or difficult to provide.
- Must permit employees to engage in religious expression unless it imposes an undue hardship. Generally, you may not place more restrictions on religious expression than other forms of expression that may similarly impact workplace efficiency.
- Must take action to prevent religious harassment of your employees. You can reduce the chance that employees will engage in unlawful religious harassment by implementing an anti-harassment policy and having an effective process for reporting, investigating and correcting inappropriate conduct.
What about religious clothing in the workplace?
What if one of your employees, a Sikh male, wears a turban? Although some people in the company are uncomfortable with the turban, you can’t ask the employee to remove it. It is a religiously mandated article of clothing, so the employee must be allowed to wear it unless it poses an undue hardship, such as a safety hazard if he worked in construction.
Additional examples of religiously mandated articles of clothing include other head coverings, such as yarmulkes, as well as prayer shawls, burkas and saris. You can prohibit an article of clothing only if you can prove it presents a safety concern or other undue hardship.
In March 2014, the EEOC issued guidance on Title VII’s application to religious garb and grooming in the workplace, largely due to a significant spike in religious discrimination charges filed by employees in recent years. While the guidance didn’t create any new obligations, it highlights the sensitivity surrounding the issue. Employers should be careful not to question whether a belief is “sincerely held” or to refuse an accommodation, even if it violates the company’s dress code, uniform policy or guidelines for appearance.
Employer rights under Title VII
While it’s important to follow the legal guidelines regarding religious protections and accommodations in the workplace, keep in mind you have the right to:
- Ask prospective employees whether they’re available to work a job’s scheduled hours. In doing so, you should first tell the applicant that he or she is not required to discuss the need for any absences for religious practices.
- Explore the request for a religious accommodation and determine whether it’s possible. Consider your options, but realize you’re not required to provide the accommodation the employee prefers.
- Refuse to accommodate an employee’s religious needs if it poses an undue hardship. For example, if you are hiring someone to fill in every other weekend and this individual needs Saturdays off to participate in a religious ceremony, you have a legitimate case for undue hardship.