Introduction

In early March, the Equal Employment Opportunity Commission (EEOC) released guidance clarifying employer responsibilities in the areas of accommodating religious beliefs and utilizing background checks.

These publications follow the EEOC’s adoption, in December 2012, of its Strategic Enforcement Plan for Fiscal Years 2013-2016. Eliminating barriers in recruitment and hiring was identified as one of the agency’s six national priorities. The remaining priorities include protecting immigrant, migrant, and vulnerable workers, responding to emerging issues, enforcing equal pay laws, preserving access to the justice system, and preventing harassment through enforcement and outreach.

EEOC Publications on “Religious Garb and Grooming in the Workplace”

On March 6, 2014, the EEOC released two publications - a “Religious Garb and Grooming in the Workplace: Rights and Responsibilities” question and answer resource and a fact sheet bearing the same title. See EEOC, Fact Sheet on Religious Garb & Grooming in the Workplace: Rights & Responsibilities (March 6, 2014), available at http://www.eeoc.gov/eeoc/publications/fs_religious_garb_grooming.cfm. See also EEOC, Religious Garb & Grooming in the Workplace: Rights & Responsibilities (March 6, 2014), available at http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

The question and answer publication sets forth questions and answers as well as examples to illustrate Title VII requirements concerning accommodating religious beliefs and practices in the workplace. Title VII protects all “sincerely held religious beliefs” (and all aspects of such beliefs and practices) irrespective of the nature of the religion, the duration or continuity of the particular individual’s observance, and customer preferences. Title VII prohibits disparate treatment, job segregation (assigning people to certain jobs because of their religious beliefs), harassment, and retaliation based on religious beliefs and employer denials of reasonable accommodations in the absence of undue hardship.

Once an employer is aware of an employee’s “sincerely held religious beliefs” and need for a religious accommodation (and employers should note that relatively informal requests may suffice to put them on notice), it must provide an accommodation unless doing so will constitute an undue hardship. The EEOC clarified that for purposes of religious accommodation, courts define undue hardship “as a ‘more than de minimis’ cost or burden on the operation of the employer’s business.” Id.

Turning to defenses and accommodations, the EEOC clarified that covering religious symbols or articles will not constitute an accommodation if the employee’s religion prohibits such action. Likewise, citing to customer preferences and biases will never constitute a defense to Title VII violations and broad-based ‘image’ arguments (such as requiring employees to wear certain clothing for marketing purposes) will typically not serve as an employer defense or example of undue hardship.

Safety and sanitary-based concerns, meanwhile, will only support undue hardship arguments in certain situations, thereby necessitating case-by-case assessments. For example, in the guidance, the EEOC states that while head coverings may pose security concerns in certain workplaces, employers should consider each request for an accommodation on a case-by-case basis. Factors relevant to the employer’s analysis “may include the individual’s job, the particular garb at issue, and the available accommodations.” Id. Thus, in a correctional facility (where an employer is concerned about employee identification, the smuggling of contraband, and the presence of items that may be used as weapons), accommodation is possible if the employee’s head covering 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.” Id.

The number of religious discrimination charges filed with the agency has been on the rise. Many of these charges as well as EEOC-driven lawsuits have met with success. In the latter months of 2013 alone, several employers settled religious discrimination suits with the EEOC for monetary and non-monetary relief. See, e.g., EEOC & Khan v. Abercrombie & Fitch Stores, Inc., No. 11-CV-03162 (involving a monetary settlement that included modification of employer policies, employer training, and interview practices on account of challenges to the retail store’s “Look Policy”); EEOC v. 704 HTL Operating LLC, & Inv. Corp. of Am., d/b/a MCM Elegante, No. 11-CV-00845 (settling for $100,000, injunctive relief, and non-monetary relief weeks before trial where plaintiff alleged that she was terminated from her position as a housekeeper for refusing to remove her religious head covering); EEOC v. United Galaxy Inc., d/b/a Tri-County Lexus, No. 2:10-CV-04987 (resolving, for $50,000, a lawsuit alleging religious discrimination where the car dealership failed to hire an applicant when he declined to shave his beard, which he wore for religious purposes); EEOC v. McDonald’s Restaurants of Cal., Inc., No. 1:13-CV-02065 (disposing of a bearded employee’s constructive discharge claim for $50,000, employer-sponsored training, and redistribution of employer policies); EEOC v. Scottish Food Sys., Inc. & Laurinburg KFC Take Home, Inc., No. 1:13-CV-00796 (involving a $40,000 settlement where the employer also agreed to implement a religious accommodation policy, conduct annual Title VII trainings, and post anti-discrimination policies at all facilities following employee’s lawsuit challenging the employer’s rule that all employees wear pants).

The fact sheet sets forth similar information in a distilled format, emphasizing that Title VII prohibits disparate treatment, job segregation (whether premised on employer action or customer preferences), retaliation, and harassment based on religion, as well as failure to accommodate religious beliefs in the absence of undue hardship. The fact sheet further notes that Title VII requires employers, in most instances, to make exceptions to their dress codes or grooming and hygiene policies to accommodate religious beliefs.

Take-Aways:

• Employees and applicants do not need to use “magic words” to request an accommodation. Id. Employers may want to consider providing employees and applicants with job descriptions outlining the job requirements and physical requirements (e.g., will need to wear a respirator) so that applicants and /or employees understand what is needed and the discussion regarding accommodations can be had early in the process.
• Employers should conduct case-by-case analyses when evaluating accommodation requests and avoid relying on categorical or blanket defenses.
• The EEOC is skeptical of blanket dress code and grooming policies so those employers with these policies will want to be able to provide the rationale.
• Employers may want to consider adding information on religious accommodation to any management or leadership training it provides so that employee and/or applicant requests for accommodation are picked up given that no “magic words” are necessary. Id.

EEOC and Federal Trade Commission (FTC) Publication on Employer-Initiated Background Checks

On March 10, 2014, the EEOC and FTC jointly published two resources on employment background checks, one of which was addressed to employers, the other to employees and job applicants. The publication targeting employers, entitled “Background Checks[:] What Employers Need to Know,” provides compliance-related information for employers preparing to run background checks, preparing to use information secured during checks, and preparing to dispose of background information under EEO laws and the Fair Credit Reporting Act (FCRA). See EEOC & FTC, Background Checks What Employers Need to Know (March 10, 2014), available at http://www.eeoc.gov/eeoc/publications/background_checks_employers.cfm.

When conducting criminal background checks, employers must treat all applicants and employees equally, making it illegal to check the background of only certain applicants and employees on account of their protected characteristics. The EEOC also recommends that employers refrain from seeking genetic or health-related information during the interview process and/or employment relationship (due to the Genetic Information Nondiscrimination Act and the Americans with Disabilities Act), except where an employer has objective evidence that an individual is unable to perform the job or poses a safety risk. The FTC, meanwhile, noted that employers must obtain written permission to perform background checks, must inform applicants and employees that the information learned may be used in employment decisions, and must make certain certifications to the company processing the check. Employers are subject to additional requirements where they seek “investigative” reports.

When using background check information, employers should, according to the EEOC, use the same assessment and disqualification criteria for everyone. Use of relaxed or heightened standards for certain groups or classes of individuals is illegal. Employers should likewise exercise “special care” when basing employment decisions on background information that may be more common among members of a protected class such that decisions may disparately impact protected classes over time. Id. Lastly, employers should be ready “to make exceptions for problems revealed during a background check that were caused by a disability.” Id. Employers should proceed with caution when implementing this recommendation in light of the EEOC’s simultaneous instruction to treat all applicants and employees consistently and in accordance with the Americans with Disabilities Act and other state and local laws. The FTC, meanwhile, emphasized that where an employer makes an employment decision based on information in a background check, it must provide the applicant with information both before and after the action is taken to allow the individual an opportunity to explain the results, pursue his or her rights to challenge the accuracy of the information, and/or obtain an additional report.

Employers must also abide by all applicable recordkeeping requirements while handling and disposing of background information. See id.

Take-Aways:

• Employers must treat all applicants and employees the same when conducting background checks.
• Employers should provide applicants and employees an opportunity to explain information in a background check.
• Employers must utilize the same disqualification criteria for everyone.
• Employers should treat background material with care and abide by all retention and destruction requirements.

Conclusion

The EEOC’s publications signal continued commitment on the part of the agency to target employer practices that exclude or otherwise limit the accessibility of protected classes from recruitment efforts and hiring. Employers are encouraged to consult these resources as they continue to monitor and improve their own internal policies and hiring practices.