The Equal Employment Opportunity Commission (“EEOC”) recently announced new guidelines that may impact the way employers conduct background checks and accommodate religious dress and grooming practices.
As most employers are aware, it is impermissible to use background checks in a discriminatory manner. For example, it is illegal to check the background of applicants and employees when that decision is based on a person’s race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older).
Recently, the EEOC and the Federal Trade Commission (“FTC”) issued a joint report warning employers of other problems that can arise in connection with background checks. First, the report warns employers that they generally may not seek an applicant’s or employee’s genetic information, which includes family medical history. The report also reminds employers that they should not ask any medical questions before a conditional job offer is made. Such questions may be asked only after the person already has started the job and if the employer has objective evidence that the employee is unable to do the job or poses a safety risk because of a medical condition.
In addition, the joint report advises employers to be mindful of disparate impact problems that can be associated with basing employment decisions on background issues that may be more common among people within certain protected classes. For example, employers should not adopt a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin or other protected characteristic, and does not accurately predict who will be a responsible, reliable or safe employee. Employers also should be prepared to make exceptions for individuals who have problems revealed during a background check that were caused by a disability, such as a low credit score caused by an illness or injury.
The joint report also reminds employers that under the Fair Credit Reporting Act (“FCRA”) they must notify applicants and employees that they intend to use information obtained from a background reporting company to assist in making employment decisions. The notice cannot be given orally or be included in an employment application. Rather, it must be in writing and in a stand-alone format. The joint report advises employers to obtain in advance the applicant’s or employee’s permission to conduct the background check. This approval can be obtained through the notice informing the person that the employer intends to obtain the report. If the employer wants to conduct additional background checks throughout the person’s employment, the notice should say so clearly and conspicuously.
If an employer decides to take an adverse action based on information it obtained from a background reporting company, the FCRA requires employers to give the applicant or employee a notice that includes a copy of the consumer report relied upon in making the decision and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” which the employer should have received from the company that produced the report. After taking the adverse action, employers must tell the applicant or employee (orally, in writing, or electronically):
that he or she was rejected because of information in the report;
the name, address and telephone number of the company that sold the report;
that the company selling the report did not make the employment decision, and cannot give specific reasons for it; and
that he or she has a right to dispute the accuracy or completeness of the report and can obtain an additional free report from the reporting company within 60 days.
Background checks can be a valuable resource for employers, but they must be used in an even-handed, neutral manner that complies with the technical requirements of the FCRA. Employers should review their current practices associated with background checks to ensure compliance with these guidelines. As the joint report advises, “In all cases, make sure that you’re treating everyone equally.”
Accommodation of Religious Dress and Grooming Practices
The EEOC also recently issued informal guidelines related to religious garb and grooming in the workplace. The guidelines provide numerous examples of religious dress and grooming practices, including: wearing religious clothing or articles (e.g., a Christian cross, a Muslim hijab (headscarf), a Sikh turban, a Sikh kirpan (symbolic miniature sword)); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of wearing modest clothing, and 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)).
Under Title VII of the Civil Rights Act of 1964, employers are required to make exceptions to their dress and grooming requirements once they are placed on notice that an accommodation is needed for sincerely held religious beliefs, unless it would pose an undue hardship. The EEOC’s new guidelines attempt to clarify and flesh out this rule. They explain first that an applicant or employee need not use any “magic words” to request an accommodation. Indeed, in some instances, no request is required, as it will be “obvious” that a practice is religious and conflicts with a work policy, and therefore that an accommodation is needed.
The guidelines go on to explain that, while Title VII only protects religious beliefs that are “sincerely held,” the fact that an employee’s religious practices deviate from commonly-followed tenets of the religion does not mean that his or her religious observance is not sincere. Moreover, an individual’s religious beliefs – or degree of adherence – may change over time, yet may nevertheless be “sincerely held.” If an employer has a legitimate reason for questioning the sincerity or even the religious nature of a particular belief or practice for which accommodation has been requested, the employer may ask the applicant or employee for information reasonably needed to evaluate the request. If a dress or grooming practice is a “personal preference” – for example, where it is worn for fashion rather than for religious reasons – it does not come under Title VII’s religion protections.
Unfortunately, the guidelines offer little clarity as to what sort of “undue hardship” will permit an employer to deny a request for accommodation. The guidelines define undue hardship as a “more than de minimis” cost or burden on the operation of the employer’s business. But they also state that co-worker disgruntlement and customer preference will not constitute undue hardship under any circumstances, even if they have a “more than de minimis” impact on the employer’s business. In this respect, the new guidelines appear to create more confusion than clarity. The guidelines also are ambiguous as to whether an employer may rely on the broad rubric of “image” or marketing strategy to deny a requested religious accommodation. They simply warn that this “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. The guidelines state that an employer may refuse a request for accommodation based on workplace safety, security, or health concerns, but offer few examples on which employers may rely.
The guidelines list a variety of other prohibitions related to religious dress and grooming. For example, employers may not:
require an employee to cover his or her religious garb, marking, or article of faith if doing so would violate the employee’s religious beliefs;
assign applicants or employees to a non-customer contact position because of actual or feared customer preference; and/or
segregate an employee due to fear that customers will have a biased response to religious garb or grooming.
One takeaway from all this is that the EEOC will clearly be stepping up its efforts to police religious dress and grooming in the workplace. Employers also can expect dress and grooming lawsuits to increase in the future. Employers should train managers to be sensitive to dress and grooming issues, and instruct them that co-worker disgruntlement and customer preference about religious beliefs and practices are not lawful bases for making employment decisions. Once an employer becomes aware of the need for an accommodation, whether by a formal request or observation, they should assess each situation on a case-by-case basis and make exceptions to their usual rules or preferences whenever possible.