On August 9, 2019, Governor Andrew Cuomo signed legislation (S.04037/A.4204) that prohibits employment discrimination based on religious attire, clothing, and facial hair. This law amends the New York State Human Rights Law (“NYSHRL”) by specifying that the existing religious discrimination ban includes any discriminatory act based upon “the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion . . . .” In Governor Cuomo’s signing memorandum, he emphasized that “[t]his law will protect people from discriminatory employment practices based on religious attire or facial hair and makes it crystal clear to anyone who may still have doubts that New York has zero tolerance for bigotry of any kind.”
Although this amendment is undoubtedly welcome to the robust and diverse religious communities in New York, a thoughtful observer will note that such discrimination was already prohibited under this section of the NYSHRL and federal law. Employers will recognize the pre-existing obligation to not discriminate against and to actively accommodate an employee’s “sincerely held” religious practices and that the obligation to accommodate is set aside when said accommodation would pose an “undue hardship on the conduct of the employer’s business.” Thus, unlike the recent trend in “natural hair” legislation and guidance (such as discussed here), the State amendment addressed in this alert does not break new ground.
Whether a specific request for accommodation to not shave one’s beard or to wear certain attire involves a sincerely held religious practice demands a highly fact-intensive inquiry. Courts often, but not always, defer to an employee’s interpretation of religious requirements and his or her sincerity in needing to abide by such religious demands. The EEOC provides helpful guidance in navigating these thorny issues.
Additionally, whether granting the requested accommodation will cause an undue hardship on an employer’s business requires thoughtful and reasoned reflection. How compelling today is an argument regarding the need to maintain a “professional appearance” that suggests a clean-shaven face? Do legitimate safety concerns exist given the employment setting and the nature of the employee’s job responsibilities?
Notwithstanding the minimal practical changes to the NYSHRL provided by this piece of legislation, this law nonetheless is a timely reminder for employers to review their existing personal appearance and grooming standards to ensure they do not intentionally or unintentionally discriminate against those who hold sincere religious beliefs related to garb, attire, and hair. The labor and employment attorneys at Seyfarth Shaw are available to assist in navigating these issues.
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