CATHOLICS, GRANDADS, FACEMASKS & DISCRIMINATION
The EEOC’s willingness to protect against religious discrimination continues to surprise us. In the latest decision an employee of the Navy refused to shave his beard to obtain his respirator certification. Given the respirator would not fit properly over the beard the Navy cancelled some of his assignments despite the employee’s claim that his Catholic religious beliefs prohibited him from shaving his beard and his request for a religious accommodation. Knowing more than a little something about the Catholic religion and never having heard of this beard commandment, we were very surprised to find how EEOC decided this employee had met the legal requirement of having a “bona fide religious belief.”
Remember that the traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires an employee to demonstrate that: (1) he has a bona fide religious belief, the practice of which conflicted with his employment; (2) he informed the agency of this belief and conflict; and (3) the agency nevertheless enforced its requirement against the employee.
To our great, enormous, gargantuan surprise EEOC stated that the employee met the first criterion because, “On August 27, 2018, Complainant emailed S1 regarding the respirator qualification. Complainant stated that he had strong beliefs against shaving his beard due to a promise he made to his late father. Complainant stated that this promise was the same as the one his late father made to God.” We wonder what grandpa got in return for the beard offering and how long this employee’s beard had grown. But most of all we wonder what EEOC would have done if the employee had demanded a one-hour procreation break during the workday because granddad had promised God that he would work diligently at that too. Frankly, there is more biblical support for procreation than beards.
Once EEOC found that pop-pop’s heavenly vow was a bona fide religious belief it turned to whether there was a reasonable alternative to the common respirator for bearded employees and it found there was.
Here, there is evidence of a possible alternative accommodation to Complainant’s request for a waiver of the respirator certification. Another coworker (CW2) stated that, independent of Complainant’s religious accommodation request, CW2 raised the idea of using a Powered AirPurifying Respirator (PAPR), which was a full hood that sealed at the neck, torso or shoulders, instead of the face.4 CW2 stated that he contacted S1 and S2, and he was directed to contact other Agency officials, including an official in Safety, who did not respond to him. ROI at 122. While CW2 stated that the process to get the PAPR approved would have taken months, we find that the Agency had a few months from when Complainant requested a religious accommodation in August 2018, until the certification requirement would have gone into effect in January 2019. ROI at 122, 460. While DRC stated that the alternate respirator “would not be available in Japan,” there is no explanation for why it would have been unavailable, nor is there an argument that obtaining the PAPR would have been an undue hardship. ROI at 495.
So, it seems that employees can now tell their agencies that they must accommodate beards, anti-vax positions, procreations breaks, or just about anything else just because papa (who was a Catholic, Jew, Adventist, Muslim, Aghori, or Way of the Five Pecks of Rice adherent) made God an unverifiable promise that all descendants would follow for all time. For details, check out Merlin W. v. Carlos Del Toro, Sec’y, Dep’t of the Navy, EEOC No. 2020002711 (2021