Lately, the EEOC has been on a campaign to stamp out discrimination based on religion—especially discrimination related to religious dress.
As part of that effort, the EEOC has focused on employment agencies, demanding that they do more to ensure that the employers they refer temporary workers to aren’t biased. Essentially, the EEOC is trying to get temp agencies to take a more active role in preventing religious discrimination.
Now the 8th Circuit Court of Appeals, which covers Minnesota employers, has reined in the EEOC a bit—for the time being.
Recent case: Asthma Suliman, a Muslim woman, signed up to be placed in temporary positions through Kelly Services, a temp employment agency.
One of Kelly’s biggest clients was Nahan Printing, which operates a large facility. Modern high-speed printing relies on complex machinery that pulls paper into printing presses using conveyor belts running over rollers and other equipment with fast-moving parts.
Kelly Services didn’t want to refer Suliman to Nahan Printing because Suliman wore a khimar, a piece of headgear some Muslim women wear that covers the hair, forehead, sides of the head, neck, shoulders and sometimes the chest. Kelly Services knew that Nahan had a strict rule that prohibited hats, scarves, caps or any other head covering or loose clothing on the plant floor.
Nahan’s policy is designed to prevent garments from being caught or dropped into the equipment, potentially injuring the employee or co-workers.
Suliman went to the EEOC to complain, and the agency sued on her behalf.
The EEOC argued that temp agencies such as Kelly have a responsibility to investigate when their employer clients claim safety hazards are a reason to ban religious garb. It also said it was up to Kelly Services to seek out accommodations.
The 8th Circuit Court of Appeals disagreed. It said that if an employer client had a reasonable explanation for its rule banning loose clothing, and if Kelly Services had no reason to suspect the company was using the rule merely to screen out Muslims, then Kelly could refuse to refer someone like Suliman without investigating further.
Since the EEOC sued only the temp agency, the court didn’t have to decide whether Nahan Printing might be discriminating. (EEOC v. Kelly Services, No. 08-3880, 8th Cir., 2010)
Final notes: The 8th Circuit made it clear that Nahan Printing itself would have had to do more than simply decree that all head covers and loose clothing were safety hazards if it, too, had been sued.
It would have had to show that making accommodations for someone like Suliman who is required to wear religious garb would be an undue hardship.
In this case, that might have been tough to do. On the day the EEOC conducted a spot inspection, it found a Muslim woman wearing religious garb that covered her from her head to her toes, exposing just her face. The line supervisor that day had simply moved her to jobs that didn’t get near dangerous equipment—a seemingly reasonable accommodation that didn’t appear to create any particular hardship.
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