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Office of Disability Employment Policy Newsletter (March 28, 2014)

Saturday, March 29th, 2014

In Pursuit of Inclusive Technology — Assistant Secretary Martinez at CSUN Conference

Hundreds of attendees at the International Technology and Persons with Disabilities Conference sponsored annually by California State University of Northridge (CSUN) gathered last week to explore the vital importance of ensuring technology is accessible to people with disabilities. Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez delivered the event’s keynote address on March 20, during which she talked about the U.S. Department of Labor’s efforts to promote the development and adoption of accessible workplace technology by America’s employers, as well as the government’s use of new technologies to advance collaborative policymaking and outreach. “While I’ve certainly experienced the frustration of workplace technology that is not accessible,” said Martinez, “I’ve also seen the promise of universally designed technology that can empower all of us to excel and fully participate — at work, and in life.”

National Online Conversation for Change on Social Media Accessibility Open through April 4

Through April 4, members of the public are invited to participate in a national online dialogue, “Advancing Accessibility and Inclusion in Social Media — The User Experience,” to examine the accessibility barriers of social media tools faced by individuals with disabilities, including job seekers and workers. Co-hosted by the Office of Disability Employment Policy (ODEP) and the National Council on Disability (NCD), this event aims to explore the value of social media in the lives of people with disabilities, particularly around work, and to identify accessibility issues and creative approaches to making social media tools more accessible and usable for everyone. The information gathered from this dialogue will then help NCD and ODEP further collaborate with the social media industry to implement solutions and improve the accessibility of these online tools. The dialogue is the first in a series of three social media accessibility online events to take place over the next three months.

Online Dialogue to Help Shape the 2014 NDEAM Theme Closes March 31

The national online dialogue to share ideas for this year’s National Disability Employment Awareness Month (NDEAM) theme is coming to a close on March 31. There is still time to submit your suggestions for a theme that reminds everyone of the valuable skills and talents that people with disabilities bring to the workplace. Don’t miss your chance to contribute to the conversation!

WRP.jobs Online Job Board Open to Private Sector Employers

Private sector employers can now use WRP.jobs, a free online job board, to find pre-screened college students and recent graduates with disabilities looking for internships and permanent positions through the Workforce Recruitment Program (WRP). WRP candidates represent all majors and include graduate and law students, as well as veterans. The WRP is a government-wide program co-sponsored by the Department of Defense and the Department of Labor to increase employment of people with disabilities in the federal workforce. Through WRP.jobs, interested non-federal employers can post permanent and temporary positions and WRP students can search and apply for these positions using employers’ standard application processes. WRP.jobs is a pilot project developed through a collaboration between the Employer Assistance and Resource Network (EARN), the organization that administers the WRP program for non-federal employers, and DirectEmployers, a non-profit consortium of global employers.

OFCCP Launches New Outreach and Recruitment Database for Contractors

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently launched a database to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers. Contractors, as well as others, can visit OFCCP’s Disability and Veterans Community Resources Directory on the OFCCP website. This new resource supplements the agency’s existing Employment Resources Referral Directory.

LEAD Center Releases March Policy Update — Employment, Health Care and Disability

The March 2014 issue of the LEAD Center’s Policy Update — Employment, Health Care and Disability is now available. This monthly update, created in collaboration with the Autistic Self Advocacy Network, provides policymakers, disability service professionals, individuals with disabilities and their families with information about relevant policy developments regarding Medicaid, the Affordable Care Act and related topics, with a focus on improving employment outcomes for individuals with disabilities. The March edition features stories on the President’s proposed 2015 budget, a recent webinar series hosted by ODEP, CMS and the LEAD Center, states considering private health coverage to low-income adults, a study on the benefits of Medicaid expansion for uninsured people with mental illness and Pennsylvania’s proposed Medicaid expansion.

Fall White House Internship Program — Applications Due April 13

The White House Internship Program provides a unique opportunity to gain valuable professional experience and build leadership skills. This hands-on program is designed to mentor and cultivate today’s young leaders, strengthen their understanding of the Executive Office and prepare them for future public service opportunities. The White House Internship Program’s mission is to make the “People’s House” accessible to future leaders from around the nation. The application for the Fall 2014 White House Internship Program is now open and the deadline is April 13, 2014.

OFCCP Posts the Section 503 Self-Identification Form in Spanish and Word Formats

Wednesday, March 26th, 2014

In response to requests from contractors, OFCCP just posted both the English and Spanish versions of the Voluntary Self-Identification of Disability form required by the new regulations implementing Section 503 of the Rehabilitation Act (Section 503) in .pdf and Word formats. The availability of these additional formats should make it easier for contractors to incorporate the form into their existing human resource information systems.

Federal contractors are required to use this form to invite job applicants and employees to voluntarily self-identify as an individual with a disability as required by 41 CFR 60-741.42 of the new regulations. Consequently, applicants and employees should benefit from these additional formats as well.

An English language version of the form was previously posted on the OFCCP Web site in portable document format (.pdf).

The various versions of the form are available on the OFCCP’s Web site at http://www.dol.gov/ofccp/regs/compliance/section503.htm.

Immigration-Related Unfair Labor Practices: New Anti-Discrimination Posters in Multiple Languages from the Justice Department’s Office of Special Counsel

Saturday, March 22nd, 2014

OSC is pleased to announce that its anti-discrimination poster is now available in additional languages. OSC has published translations of its poster in Arabic, Chinese, French, Haitian Creole, Korean, Russian, Spanish, Tagalog, and Vietnamese. These translations are available on OSC’s website located on the Worker Information page at: http://www.justice.gov/crt/about/osc/htm/worker.php and the Employer Information page at: http://www.justice.gov/crt/about/osc/htm/employer.php.

OFCCP Posts VEVRAA Benchmark Database and User Instructions

Friday, March 21st, 2014

OFCCP posted the Benchmark Database required by the new regulations implementing the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). Federal contractors use the VEVRAA Benchmark Database when establishing a hiring benchmark for protected veterans as required by 41 CFR 60-300.45 of the new regulations. The database includes the annual national percentage of veterans in the civilian labor force for contractors that choose to use this number as their benchmark. It also includes data on the percentage of veterans in the labor force in each State and the number of veterans who participate in each State’s employment service, for use by those contractors choosing to develop an individualized benchmark.

To help contractors use this database, OFCCP provides detailed user instructions and examples illustrating how a contractor could use the database to set an individualized VEVRAA benchmark.

You can access the VEVRAA Benchmark Database through OFCCP’s Web site at http://www.dol-esa.gov/errd/VEVRAA.jsp.

Civil Rights News From Secretary Duncan and the U.S. Department of Education

Friday, March 21st, 2014

Friend,

Equity – the push to ensure strong educational opportunity for every student – drives everything we do at the U.S. Department of Education, and particularly in the Office for Civil Rights. From preschool enrollment to college attendance and completion, our office’s work is grounded in the belief that all students, regardless of race, gender, disability, or age, need a high-quality education to be successful.

Yet despite the gains we’ve made as a country, too many students are not receiving the education they deserve, and it is our collective duty to change that. Data is crucial to this work and helps us understand the extent of educational inequity throughout the U.S. and make informed decisions for action.

Since 1968, the Civil Rights Data Collection (CRDC), formerly the Elementary and Secondary School Survey, has collected data on key education and civil rights issues in our nation’s public schools. Our office uses this data to focus our equity efforts and monitor the effectiveness of our programs. Earlier today we released new data from the 2011-12 collection, and for the first time since 2000, we collected data from every public school in the nation. This newest collection also includes data on preschool suspensions and expulsions for the first time as well.

Below are five striking new facts from the 2011-12 CRDC collection:

Access to preschool is not a reality for much of the country. About 40 percent of public school districts do not offer preschool, and where it is available, it is mostly part-day only. Of the school districts that operate public preschool programs, barely half are available to all students within the district.

Suspension of preschool children. Black students represent 18 percent of preschool enrollment but 42 percent of preschool students suspended once, and 48 percent of the preschool students suspended more than once.

Access to courses necessary for college is inequitably distributed. Eighty-one percent of Asian-American high school students and 71 percent of white high school students attend high schools where the full range of math and science courses are offered (Algebra I, geometry, Algebra II, calculus, biology, chemistry, physics). However, fewer than half of American Indian and Native-Alaskan high school students have access to the full range of math and science courses in their high schools. Black students (57 percent), Latino students (67 percent), students with disabilities (63 percent), and English learner students (65 percent) also have diminished access to the full range of courses.

Access to college counselors is uneven. Nationwide, one in five high schools lacks a school counselor.

Disparities in high school retention. Twelve percent of black students are retained in grade nine – about double the rate that all students are retained (six percent). Additionally, students with disabilities served by IDEA and English learners make up 12 percent and five percent of high school enrollment, respectively, but 19 percent and 11 percent of students held back or retained a year, respectively.

Learn more about the CRDC at ocrdata.ed.gov.

OFCCP Launches a New Outreach and Recruitment Database for Contractors

Friday, March 21st, 2014

On March 13, 2014, the Office of Federal Contract Compliance Programs (OFCCP) launched a new database to help contractors find qualified workers with disabilities and veterans, and to assist contractors with establishing relationships with national organizations and local community groups that have access to these workers.

Contractors, as well as others, can visit OFCCP’s Disability and Veterans Community Resources Directory on the OFCCP Web site at http://www.dol-esa.gov/errd/resources.html. This new resource supplements the agency’s existing Employment Resources Referral Directory (ERRD).

Colorado Department of Labor & Employment signs agreement with US Labor Department to improve services to persons with disabilities

Monday, March 17th, 2014

The following U.S. Department of Labor news release was issued on March 11, 2014. For more information, go to http://www.dol.gov/opa/media/press/oasam/OASAM20132494.htm.

WASHINGTON — The U.S. Department of Labor announced today that it has entered into a conciliation agreement to address allegations of disability discrimination by a person with hearing impairments against the Colorado Department of Labor & Employment. The U.S. Labor Department’s Civil Rights Center investigated allegations that a complainant with a profound hearing loss was denied communication services by Colorado’s unemployment insurance program by not providing a qualified American Sign Language interpreter. Based on a review of state processes, CRC determined that the program violated Section 188 of the Workforce Investment Act of 1998 and Title II of the Americans with Disabilities Act. The conciliation agreement covers the findings in CRC’s determination, as well as a later allegation by the same individual that CDLE’s workers’ compensation program had also not provided a qualified American Sign Language interpreter. By entering into the conciliation agreement, CDLE demonstrates its commitment to equal opportunity for persons with disabilities.

“We acknowledge the Colorado Department of Labor & Employment’s commitment to nondiscrimination and its willingness to address these allegations affirmatively and cooperatively,” said CRC Director Naomi M. Barry-Pérez. “CDLE began reviewing its procedures in 2011 following the individual’s complaint and recently has expanded its review to all of its divisions as a demonstration of its commitment to equal opportunity for customers with disabilities. CRC will continue to actively investigate complaints and resolve allegations of discrimination, ensuring there is equal opportunity for all people in programs that fall under our authority.”

Under the agreement, CDLE will:

establish policies for responding to requests for communication services and reasonable accommodations/modifications from people with disabilities;
formally evaluate the policies, practices and procedures of its unemployment insurance and workers’ compensation programs, and eliminate any barriers for people with disabilities that the evaluation identifies;
train CDLE staff about disability-related obligations and issues; and
conduct outreach to disability advocacy groups.

CRC enforces nondiscrimination laws that apply to recipients of financial assistance from the US Labor Department and, in some circumstances, from other federal departments and agencies. It also enforces ADA Title II as that law applies to state and local governments and other public entities that operate programs and activities related to labor and the workforce. For more information about CRC, call 202-693-6500 (voice) or 800-877-8339 (relay), or visit CRC’s website. Additional information about disability-related issues is available at http://www.disability.gov.

Office of Disability Employment Policy Newsletter (March 14, 2014)

Friday, March 14th, 2014

For more information on any of these articles, go to www.dol.gov/odep.

Planning for a Year of Disability Employment Action – Assistant Secretary Martinez’s Blog

In a blog that looks ahead to the FY 2015 budget year, Assistant Secretary of Labor for Disability Employment Policy Kathy Martinez outlines some of the priorities for the Office of Disability Employment Policy. Among them are a focus on community colleges in the transition of youth with disabilities to the workplace, a commitment to providing technical assistance to employers regarding the new Section 503 of the Rehabilitation Act regulations, and a continued collaboration with the Employment and Training Administration on the Disability Employment Initiative.

Join the National Online Conversation for Change on Social Media Accessibility – March 17 – April 4

Members of the public are invited to participate in a national online dialogue, “Advancing Accessibility and Inclusion in Social Media – The User Experience,” to examine the accessibility barriers of social media tools faced by individuals with disabilities, including job seekers and workers. Co-hosted by the Office of Disability Employment Policy (ODEP) and the National Council on Disability (NCD), this event aims to explore the value of social media in the lives of people with disabilities, particularly around work, and to identify accessibility issues and creative approaches to making social media tools more accessible and usable for everyone. The information gathered from this dialogue will then help NCD and ODEP further collaborate with the social media industry to implement solutions and improve the accessibility of these online tools. The dialogue, to be held March 17 to April 4, 2014, will be the first in a series of three social media accessibility online events to take place over the next three months.

ODEP Info-Comic Illustrates the Benefits of Individualized Learning Plans for Youth

An Individualized Learning Plan (ILP) is a set of activities that helps youth take charge of their future. It does this by connecting what youth do in high school with college, job and career goals. ODEP and its research partners have found that ILPs positively impact all youth’s self-determination, leadership abilities, and awareness of career opportunities. As an example of the process, ODEP created an info-comic in which high school senior Shelly learns how to take charge of her future by using an ILP. ODEP also has a “Kickstart Your ILP” toolkit available on its website.

HUD Announces $120 Million for Housing for People with Disabilities

To help prevent thousands of people with disabilities from experiencing homelessness or unnecessary institutionalization, the U.S. Department of Housing and Urban Development announced about $120 million in funding for state housing agencies to provide long-term rental assistance. Developed in partnership with the U.S. Department of Health and Human Services, the Section 811 Project Rental Assistance (PRA) enables persons with disabilities who earn less than 30 percent of their area’s median income to live in integrated mainstream settings. The program reinforces the guiding principles of the Americans with Disabilities Act and the landmark 1999 Supreme Court ruling in Olmstead v. L.C., which require state and local governments to provide services in the most integrated settings appropriate to meet the needs of individuals with disabilities. Application deadline is May 5, 2014.

Maintaining Employment through Economic Advancement Strategies – LEAD Center Webinar – March 26, 3:00-4:30 PM EDT

This webinar, as part of LEAD Center’s Employment mini-series, will provide information on strategies for enhancing employment stability and improving time on the job through the use of economic advancement strategies. Participants will learn how to integrate these strategies into their return to work services and hear stories about on the ground implementation. The webinar will be held March 26, 3:00-4:30 PM EDT. All LEAD Center webinars are captioned and presentation materials are sent to participants in advance of the webinar. For any other reasonable accommodation requests, please contact Brittany Taylor at btaylor@ndi-inc.org.

Disability Status Report Webinar – April 1, 1:00-2:00 PM EDT

Cornell University’s Employment and Disability Institute (EDI) will host a free online webinar on April 1 from 1:00-2:00 p.m. EDT to present the findings of the 2012 Disability Status Report. This presentation will explore the Census Bureau’s December 2013 release of data from the 2012 American Community Survey (ACS) related to disability and employment, education, poverty, household income and labor earnings.
Cornell University researchers will present the latest information and issues associated with disability statistics and the circumstances that people with disabilities face. The webinar will be captioned.

EEOC’s Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities (March 6, 2014)

Tuesday, March 11th, 2014

This fact sheet provides basic information about how federal employment discrimination law applies to religious dress and grooming practices. A full-length question-and-answer guide is available at http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

In most instances, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices. Examples of religious dress and grooming practices may include: 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)).

Title VII prohibits disparate treatment based on religious belief or practice, or lack thereof. With the exception of employers that are religious organizations as defined under Title VII, an employer must not exclude someone from a job based on discriminatory religious preferences, whether its own or those of customers, clients, or co-workers. Title VII also prohibits discrimination against people because they have no religious beliefs. Customer preference is not a defense to a claim of discrimination.

Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or assumed customer preference.

Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.

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.

An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship.

When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
Neither co-worker disgruntlement nor customer preference constitutes undue hardship.

It is advisable in all instances for employers to make a case-by-case determination of any requested religious exceptions, and to train managers accordingly.

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.

Title VII prohibits workplace harassment based on religion, which may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment, or for example, when an employee is subjected to unwelcome remarks or conduct based on religion.
To locate the EEOC office in your area regarding questions or to file a charge of discrimination within applicable time deadlines, call toll free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information. Federal sector applicants and employees should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling. For more details, see “How to File a Charge of Employment Discrimination,” http://www.eeoc.gov/employees/charge.cfm.

In addition to Title VII’s prohibitions on religious, race, color, national origin, and sex discrimination, the EEOC enforces federal statutes that prohibit employment discrimination based on age, disability, or genetic information of applicants or employees. You may contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or with more specialized questions, by calling 1-800-669-4000 (TTY 1-800-669-6820), or sending written inquiries to: Equal Employment Opportunity Commission, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.

EEOC Issues New Publications on Religious Garb and Grooming in the Workplace Practical Guides Will Assist Employers and Employees (March 6, 2014)

Tuesday, March 11th, 2014

This publication by the U.S. Equal Employment Opportunity Commission (EEOC) answers questions about how federal employment discrimination law applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area.

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 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)).

In most instances, employers are required by federal law to make exceptions to their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices.

1. What is the federal law relating to religious dress and grooming in the workplace?

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended (“Title VII”),prohibits employers with at least 15 employees (including private sector, state, and local government employers), as well as employment agencies, unions, and federal government agencies, from discriminating in employment based on race, color, religion, sex, or national origin. It also prohibits retaliation against persons who complain of discrimination or participate in an EEO investigation. With respect to religion, Title VII prohibits among other things:

disparate treatment based on religion in recruitment, hiring, promotion, benefits, training, job duties, termination, or any other aspect of employment (except that “religious organizations” as defined under Title VII are permitted to prefer members of their own religion in deciding whom to employ);
denial of reasonable accommodation for sincerely held religious practices, unless the accommodation would cause an undue hardship for the employer;
workplace or job segregation based on religion;
workplace harassment based on religion;
retaliation for requesting an accommodation (whether or not granted), for filing a discrimination charge with the EEOC, for testifying, assisting, or participating in any manner in an EEOC investigation or EEO proceeding, or for opposing discrimination.

There may be state or local laws in your jurisdiction that have protections that are parallel to or broader than those in Title VII.

2. Does Title VII apply to all aspects of religious practice or belief?

Yes. Title VII protects all aspects of religious observance, practice, and belief, and defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, 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.

Religious practices may be based on theistic beliefs or non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views. Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Moreover, an employee’s belief or practice can be “religious” under Title VII even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.

The law’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs. For example, an employer that is not a religious organization (as legally defined under Title VII) cannot make employees wear religious garb or articles (such as a cross) if they object on grounds of non-belief.

Because this definition is so broad, whether or not a practice or belief is religious typically is not disputed in Title VII religious discrimination cases.

3. Does the law apply to dress or grooming practices that are religious for an applicant or employee, even if other people engage in the same practice for non-religious reasons?

Yes. Title VII applies to any practice that is motivated by a religious belief, even if other people may engage in the same practice for secular reasons. However, 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.

4. What if an employer questions whether the applicant’s or employee’s asserted religious practice is sincerely held?

Title VII’s accommodation requirement only applies to religious beliefs that are “sincerely held.” However, just because an individual’s religious practices may deviate from commonly-followed tenets of the religion, the employer should not automatically assume 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. Therefore, like the “religious” nature of a belief or practice, the “sincerity” of an employee’s stated religious belief is usually not in dispute in religious discrimination cases. However, 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, it may ask an applicant or employee for information reasonably needed to evaluate the request.

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.

5. Can an employer exclude someone from a position because of discriminatory customer preference?

No. If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.

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.

6. May an employer automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy or preference regarding how employees should look?

No. Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business. Fact patterns illustrating whether or not an employer is aware of the need for accommodation appear below at examples 4-7.

For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act (ADA) undue hardship defense to disability accommodation.

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.

7. 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.

8. May an employer assign an employee to a non-customer contact position because of customer preference?

No. Assigning applicants or employees to a non-customer contact position because of actual or feared customer preference violates Title VII’s prohibition on limiting, segregating, or classifying employees based on religion. Even if the employer is following its uniformly applied employee policy or practice, it is not permitted to segregate an employee due to fear that customers will have a biased response to religious garb or grooming. The law requires the employer to make an exception to its policy or practice as a religious accommodation, because customer preference is not undue hardship.

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.

9. 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.

10. May an employer deny accommodation of an employee’s religious dress or grooming practice based on the “image” that it seeks to convey to its customers?

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 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.

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.

11. Do government agencies whose employees work with the public have to make exceptions to uniform policies or otherwise allow religious dress and grooming practices if doing so would not cause an undue hardship?

Yes. 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 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.

12. May an employer bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns?

Yes, but only if the practice actually poses an undue hardship on the operation of the business. The employer should not assume that the accommodation would pose an undue hardship. While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.

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 face mask. When Prakash explains that he does not trim his beard for religious reasons, the employer offers to allow Prakash to wear two face masks 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 are 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.

13. Are applicants and employees who request religious accommodation protected from retaliation?

Yes. 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 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 in 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.

14. What constitutes religious harassment under Title VII, and what obligation does an employer have to stop it?

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.[18] 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).

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.

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.

15. What should an applicant or employee do if he believes he has experienced religious discrimination?

Employees or job applicants should attempt to address concerns with management. They should keep records documenting what they experienced or witnessed and any complaints they have made about the discrimination, as well as witness names, telephone numbers, and addresses. If the matter is not resolved, private sector and state and local government applicants and employees may file a charge of discrimination with the EEOC.

To locate the EEOC office in your area regarding questions or to file a charge of discrimination within applicable time deadlines, call toll free 1-800-669-4000 or 1-800-669-6820 (TTY) for more information.

Federal sector applicants and employees should contact the EEO office of the agency responsible for the alleged discrimination to initiate EEO counseling. For more details, see “How to File a Charge of Employment Discrimination,” http://www.eeoc.gov/employees/charge.cfm.

16. Where can employers and employees obtain more information?

In addition to Title VII’s prohibitions on religious, race, color, national origin, and sex discrimination, the EEOC enforces federal statutes that prohibit employment discrimination based on age, disability, or genetic information of applicants or employees. The EEOC conducts various types of training and can help you find a format that is right for you. More information about outreach and training programs is available at http://www.eeoc.gov/eeoc/outreach/index.cfm. You should also feel free to contact the EEOC with questions about effective workplace policies that can help prevent discrimination, or for more specialized questions, by calling 1-800-669-4000 (TTY 1-800-669-6820), or sending written inquiries to: Equal Employment Opportunity Commission, Office of Legal Counsel, 131 M Street, NE, Washington, D.C. 20507.