EEOC Provides Guidance On Social Media, Religious Accommodation

March 13, 2014 at 8:19 am Leave a comment

As faithful readers of this blog know, I am not an employment law attorney but I still like to highlight emerging issues that may confront you in the workplace.  One of the issues that most intrigues me is the extent to which employers should delve into an applicant’s social media postings as part of the hiring and promotion process. 

 I’ve come to believe that looking into someone’s Facebook postings, as tempting as it might be, does more harm than good.  A good interview will get you all the information you need about an applicant, while checking someone’s Facebook page could potentially set you up for a claim that you discriminated against an applicant because of their race, religion, and, in states like New York, sexual orientation.

A good friend of mine thinks I am nuts.  He points out that you can learn a lot about a person from what they post on Facebook.  Do you really want a camp counselor, for instance, who brags about how much pot they smoked over the weekend?

Yesterday, the Equal Employment Opportunity Commission hosted a meeting/conference discussing the various workplace issues raised by social media and I love the compromise that one of the attorneys, Renee Jackson of Nixon Peabody, suggested as part of the dialogue.  First, make sure that social media is just one of several sources you access when doing an applicant background check.  Second, have a third-party or employee not involved in the hiring decision review publicly available information about the employee from social media cites.  This employee can report just the facts but omit information such as an employee’s race or religion that should not be part of the hiring decision in the first place.

Speaking of religion, the EEOC recently issued guidance on accommodation of an employee or applicant’s religious beliefs in the workplace. Title VII of the Civil Rights Act of 1964 bans employers with 15 or more employees from discriminating against an employee based on, among other things, her religious beliefs. This means that employers must accommodate an employee’s sincerely held religious beliefs unless doing so would constitute an undue hardship for the employer.

The recently issued, wide ranging guidance stresses, among other things, that a customer’s unease with an employer’s religious attire doesn’t allow the employer to reassign the employee.  This means, for example, that you can’t shift a teller who is a practicing Sikh to a back office position because members have complained he wears a turban.  Another theme of the guidance is that employers should not delve too deeply into how strongly an employee actually holds his or her religious beliefs.  For example, an employee might wear a religious symbol for only one month out of the year or be a recent convert to an obscure faith but these facts are irrelevant in determining how best to accommodate the employee.  

One other theme worth noting has to do with dress codes.  Employers should make exceptions to dress codes to accommodate sincerely held religious beliefs.  Doing so doesn’t mean that the dress code can’t be enforced against other employees.  The bottom line with all of this is to be reasonable.

Entry filed under: HR, Legal Watch. Tags: , , , .

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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