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Friday, April 14, 2017

Nazarite Vow and Hair Drug Testing Clash

By Thomas Eden

Stephen Fasuyi applied for a utility technician position at a U.S. Steel Tubular Products, Inc. (USSTP) and received an oral employment offer per court filings. The job offer was contingent upon his successful completion of a pre-employment drug test. Fasuyi belongs to the Nazirite sect of the Hebrew Israelite faith, and he sincerely believes that the Old Testament forbids him from cutting hair from his scalp, just like Samson in Judges 13. Found at www.nazarite.com one of the three vows “Let the locks of hair on his head grow long.”

During a hair follicle drug test the same day he received a job offer, Fasuyi declined to have a lock of his hair cut starting at the scalp, but he offered alternatives, such as pulling hair from his beard, which seemed consistent with the drug test protocol. Fasuyi nevertheless was instructed to go home without the examination being completed, and was denied the opportunity to re-test on a different date.

Fasuyi subsequently applied for other vacancies at USSTP, including another utility technician position for which he initially was scheduled for an interview, only to have the interview later canceled by the company.

The Equal Employment Opportunity Commission (EEOC) later sued USSTP under Title VII of the Civil Rights Act of 1964 contending that Fasuyi's religious beliefs should have been accommodated during the pre-employment testing, and that USSTP ultimately denied him employment because of his religion and in retaliation for his opposing what he believed to be religious discrimination. The Houston Texas case was headed for a jury trial on the issue of whether Fasuyi had made USSTP aware of his religious objection to the drug testing format before the company rescinded its employment offer.

The EEOC on Monday announced a two­-year consent decree it reached with USSTP, in which USSTP will pay Fasuyi $150,000 and promises not to engage in any further discriminatory conduct and committed to considering accommodation requests from job applicants of faith.

Common Sense Counsel: Religious accommodation is an EEOC hot button and the Courts appear to agree. Title VII prohibits among other things:

•  disparate treatment based on religion in recruitment, hiring, promotion, benefits, training, job duties, termination, or any other aspect of employment (except that "religious organizations" as defined under Title VII are permitted to prefer members of their own religion in deciding whom to employ);

• denial of reasonable accommodation for sincerely held religious practices, unless the accommodation would cause an undue hardship for the employer;

•   workplace or job segregation based on religion;

•   workplace harassment based on religion;

•  retaliation for requesting an accommodation (whether or not granted), for filing a discrimination charge with the EEOC, for testifying, assisting, or participating in any manner in an EEOC investigation or EEOC proceeding, or for opposing discrimination.

So when faced with an issue of religion, first review the EEOC Religious Garb and Grooming in the Workplace: Rights and Responsibilities and be in an accommodating mood.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL a member of the ABA Section of Labor and Employment Law He can be contacted at teden@constangy.com or 334-246-2901.