Labor & Employment Law Daily EEOC’s religious bias claims on behalf of dreadlocked grocery store applicant left for jury
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Tuesday, August 25, 2020

EEOC’s religious bias claims on behalf of dreadlocked grocery store applicant left for jury

By Kathleen Kennedy-Luczak, J.D.

The applicant asserted that he sought exemption from the store’s grooming policy due to his Rastafarian beliefs.

In denying summary judgment for either party on an applicant’s failure-to-accommodate and failure-to-hire claims, a federal district court in Tennessee determined that whether he informed the store of his need for accommodation and whether the request was based on “truly held” beliefs were questions for the factfinder at trial. However, because the applicant never had any substantive employment, the court granted the store’s motion for summary judgment on the constructive discharge claim (EEOC v. Publix Super Markets, Inc., August 20, 2020, Richardson, E.).

Grooming policy. An African-American male who practices Rastafarianism, including the practices of prayer, non-consumption of alcohol and pork, and maintaining his hair in dreadlocks, applied and was interviewed for a part-time position at a grocery store. The store’s grooming policy, with respect to males, requires that hair “should be worn conservatively styled, clean and neat” and “must not hang or curl over the collar.” The applicant asserted that he informed the store he could not cut his hair, due to his religion, and asked whether he could wear his hair inside a hat. During a phone call the next day when he accepted an offer of employment, the applicant alleged that the store reiterated its policy that he would be required to cut his hair. He claimed that he told the store he felt uncomfortable cutting his hair, for religious reasons, and that his offer of employment was withdrawn.

Lawsuit filed. The EEOC filed a discrimination suit on the applicant’s behalf, alleging that the grocery store refused to provide a religious accommodation and constructively discharged him from his employment. Both parties filed motions for summary judgment.

Informed of conflict. The court reframed the applicant’s constructive discharge claim as a failure-to-hire claim since he never worked a day for the store. Noting that two of the requirements for a failure-to-hire claim are the same as a those applicable to a failure-to-accommodate claim, the court examined whether the applicant informed the store of a conflict with its grooming policy based on a religious belief. The store denied that the applicant ever asked for an exemption from the grooming policy for religious reasons. Indeed, the store’s customer service manager testified that if the applicant had said anything about religion, then they would have accommodated him.

Telephone recordings. The applicant presented audio recordings of phone conversations he had with store managers that he claimed contradicted the denial. However, the court concluded that the recordings were, at most, evidence that the applicant informed the store of his need for religious accommodation and not direct evidence of discrimination. A reasonable jury could when presented with the evidence, but not necessarily would, find the existence of every element of the applicant’s failure-to-accommodate and failure-to-hire claims. The court found that there remained a genuine issue of fact as to whether the applicant informed the store of a conflict between his religious beliefs and its grooming policy.

Sincere religious belief. Next, the court considered the element of whether the applicant held a sincere religious belief that conflicted with the store’s employment requirement. An activity qualifies as the kind of religious belief that merits accommodation if it is sincerely held. The court reasoned that summary judgment is seldom appropriate in subjective inquiries and, in religious accommodation cases, should only be granted where the sole conclusion a reasonable jury could make is that the employee’s religious assertion was not bona fide. Such a finding depends on an assessment of the employee’s credibility and should ordinarily be reserved for the factfinder at trial.

Here, the applicant asserted that his Rastafarian beliefs, including the need to wear dreadlocks, were based on a deep religious conviction. The store claimed that the applicant’s desire to wear dreadlocks was a personal preference, pointing out that the applicant testified that he did not follow all the practices of the Rastafari religion. The court could not grant summary judgment for either party on the failure-to-accommodate and failure-to-hire claims because of the issues of fact that needed to be determined by a jury.

No constructive discharge. Lastly, the court concluded that the applicant did not carry his burden to demonstrate the elements of a constructive discharge claim. In order to prevail on such a claim, intolerable working conditions must be shown. The applicant did not work even one hour at the grocery store and, therefore, had no working conditions, certainly no intolerable working conditions amounting to constructive discharge. The store’s motion for summary judgment was granted as to the constructive discharge claim.

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