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  4. Written Testimony of Amrith Kaur, Legal Director, Sikh Coalition

Written Testimony of Amrith Kaur, Legal Director, Sikh Coalition

April 28, 2021

Good afternoon Chair Burrows, Vice-Chair Samuels, Commission Members and staff of the Equal Employment Opportunity Commission (EEOC), and my fellow panelists. I thank you all for the opportunity to testify and participate in today’s discussions regarding the impact of the COVID-19 pandemic on the Sikh community. My name is Amrith Kaur Aakre, and I am the national Legal Director for the Sikh Coalition, the nation’s largest Sikh civil rights organization. The Sikh Coalition is a community-based organization that defends civil rights and civil liberties in the United States, educates the broader community about Sikhs and diversity, promotes local community empowerment, and fosters civic engagement among Sikh Americans. The Sikh Coalition owes its existence in large part to the effort to combat uninformed discrimination against Sikh Americans after September 11, 2001. Since our inception, we have worked with governmental and private entities to achieve mutually acceptable accommodations for the Sikh articles of faith and have advocated for better protections for religious and racial minorities across the board. Indeed, we have partnered with the EEOC for nearly 20 years as a stakeholder organization in crafting guidance documents and co-litigating employment discrimination cases. 

I. Background on Employment Discrimination Against Sikhs

By way of background, there are approximately 26 million practicing Sikhs in the world, with over 500,000 within the United States, making Sikhism the fifth largest religion in the world.[1] Observant Sikhs are often targeted for employment discrimination because of their actual or perceived race, ethnicity, national origin, and religion.[2] Sikh religious practices include wearing five articles of faith comprised of maintaining kesh (uncut hair - including facial hair) out of respect for God’s will and covered by a dastaar (turban) as a reminder to lead an ethical life, carrying a kanga (small wooden comb) as a reminder to maintain physical and spiritual cleanliness, wearing kachera (long cotton undershorts) as a reminder of the importance of marital fidelity, wearing a kara (steel bracelet), and carrying a kirpan (article of faith resembling a knife) as a reminder to defend the rights of the oppressed. These articles of faith have deep religious significance for observant Sikhs but are poorly understood by most Americans, including many employers.[3] Sikhs remain one of the most vulnerable minority groups in America. According to the most recent FBI statistics, Sikhs are among the top five groups experiencing anti-religious hate crimes as of 2019 and have seen an upward trend of victimization by an average annual increase of 102% between 2015 to 2019. Studies also show that Sikhs are disproportionately subject to workplace discrimination.[4] As a result, we continue to receive a high volume of intakes from Sikh Americans alleging violations of Title VII and other federal, state, and local civil rights laws.

Historically, the Sikh community is all too familiar with this type of workplace discrimination and has routinely had to fight for equitable access to employment. The Sikh Coalition has litigated numerous cases where observant Sikh employees were retaliated against, subjected to hostility, or segregated due to their articles of faith by employers in both the public and private sectors; where Sikh military service members were denied their religious identity and ability to maintain their articles of faith even while sacrificing their bodies for our country; and where physicians, paramedics, police officers, restaurant workers, teachers and others were pretextually not hired because of their visible articles of faith or the employers’ denial of religious accommodations.

For example, in 2010, we worked with the EEOC to combat harassment, a hostile work environment, and the failure to provide religious accommodations against AutoZone, on behalf of an employee who had adopted Sikhism and then was repeatedly referred to as a “terrorist”, asked by his coworkers whether he intended to blow up the store, and refused the right to wear his religiously mandated turban. Additionally, in 2016, the EEOC negotiated a conciliation agreement between J.B. Hunt Transport, Inc. and four Sikh truck drivers represented by our organization regarding discriminatory hair drug testing policies which required drivers to cut their hair in order to be tested rather than offer an alternative test, such as a urine analysis, to accomplish the same goals. The scope of this employment discrimination and the burden it places on Sikh employees is unmeasurable; however, we do know that in many cases it is completely avoidable given the protections these employees should be afforded. It is for this reason that I am here today, respectfully requesting the EEOC to acknowledge this harm which continues to grow as a result of the COVID-19 pandemic, and to stand up for the workplace rights of Sikhs and other similarly impacted groups.

II. The COVID-19 Pandemic has Exacerbated Employment Challenges for Sikh Workers Due to Biased Policies and Regulations

As you know, under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against employees on the basis of religion. This includes refusing to accommodate an employee's sincerely held religious beliefs or practices unless the accommodation would impose an undue hardship upon the employer. The EEOC updated its Compliance Manual Section on Religious Discrimination in January of this year, for which we submitted public comments for your review. While we agreed that it was time to update that manual, one of the main issues it failed to adequately address – and an issue we emphasized in our comments on the proposed updates to the manual – is the systemic discrimination experienced by observant Sikhs who are not given accommodations to facially neutral employment policies and regulations.  This includes policies and regulations that are promulgated by federal and state workplace regulators.

An emerging challenge caused by the COVID-19 pandemic has been the interpretation of regulations issued by the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA) on the wear of certain types of Personal Protective Equipment (PPE), such as the N95 respirator, by bearded people. Specifically, both the CDC and OSHA regulations require certain employees to be fitted for N95 respirators prior to being able to wear them in the workplace. However, neither agency’s regulations allow individuals to be fit tested if they have any amount of facial hair. It is important to note that there are many reasons why individuals may be unable to pass such a “fit test,” including having a narrow face shape which is most common for women; however, it is only individuals with facial hair who are not allowed to sit for the fit test at all. This is true regardless of whether those individuals may be able to form a seal with the N95 mask and maintain the same level of protection as clean-shaven wearers. 

The requirement to shave has had a detrimentally disparate impact on many Sikh, Jewish, Muslim and other minority faith healthcare workers, medical and dental students, paramedics and other first responders who maintain beards consistent with their religious beliefs. They have been forced to make the unconscionable choice between sacrificing their faith by shaving their beards or risking termination. Additionally, the shaving requirement has had an adverse impact on Black and Hispanic workers who most commonly have the medical condition Pseudofolliculitis Barbae (PFB), which causes an uncomfortable rash after shaving thereby requiring facial hair to be grown out. Despite the availability of CDC and OSHA approved alternatives to the N95 respirator - namely, Powered Air-Purifying Respirators (PAPRs) - many frontline workers are being denied accommodation requests by their employers.  

The discriminatory impact of these policies regarding respirators is even more concerning given the CDC’s recent declaration that racism is a serious public health crisis.[5] Importantly, the CDC acknowledged that both interpersonal and structural racism negatively affect “the mental and physical health of millions of people, preventing them from attaining their highest level of health, and consequently, affect[s] the health of our nation.”[6] Thus, the impact of racism is felt in every aspect of one’s life, including in the workplace. The CDC further acknowledged that, “racism also deprives our nation and the scientific and medical community of the full breadth of talent, expertise, and perspectives needed to best address racial and ethnic health disparities. To build a healthier America for all, we must confront the systems and policies that have resulted in the generational injustice that has given rise to racial and ethnic health inequities.” [7] Indeed, part of confronting this public health crisis must include addressing the increasing inequities experienced by minority employees as a result of the COVID-19 pandemic. The issue of respirator fit tests and employers’ general unwillingness to provide appropriate PPE for religious and racial minorities is just another way in which vulnerable communities, like Sikhs, are targeted by systemic issues within our policies, workplaces, and healthcare industry. Not only do these policies harm minority employees, but they also harm the general public, as they limit the access of talented minorities from entering or remaining within the profession.

A. Workplace Policy Mandates Must be Interpreted as Subject to All Relevant Statutory and Constitutional Protections afforded to Employees

Since the onset of the COVID-19 pandemic and over the course of this last year, we have worked with over twenty Sikh employees, and provided guidance to countless other workers, regarding their workplace rights and the wear of PPE. The majority of those employees were on the front lines of the COVID-19 pandemic and had not previously encountered policies that required them to shave their facial hair to wear N95 respirators. Employers routinely took at face value the CDC and OSHA regulations proclaiming that those with facial hair could not be fitted for an N95 – and failed to consider whether these regulations were fair, what the equal employment repercussions were under Title VII, or whether the employees could be alternatively accommodated and remain safely working while maintaining their religiously-mandated facial hair. In each case, we challenged the employers to interpret the CDC and OSHA regulations like any other policy, in conjunction with constitutional and statutory protections for employees which require employers to provide reasonable accommodations absent undue hardship. In some cases, the employers quickly acted to grant the accommodations; however, that is not always the case. In fact, a number of observant Sikhs are categorically denied access to employment by certain employers, such as ambulance services or paramedic providers, because employers refuse to acknowledge their legal obligations and provide alternative PPE.

In an effort to bring clarity to this issue, we have engaged with the U.S. Department of Health and Human Services (HHS) of which the CDC is a part, as well as the U.S. Department of Labor (DOL) of which OSHA is a part, to reiterate the fact that a large number of bearded Sikhs work in the American healthcare industry, that there is no Sikh religious prohibition against wearing PPE, and that Sikhs are able to wear PPE safely without shaving or trimming their beards. Indeed, HHS’s Office of Civil Rights helped to resolve a Sikh healthcare worker’s PPE case we brought to their attention; it clarified to the hospital-employer that, while a safe workplace is critical, if shaving is required for healthcare professionals to comply with CDC or OSHA regulations or their individual policies, then pursuant to the legal standard under Title VII, reasonable alternatives should be provided for bearded employees, absent undue hardship. These workable solutions may include, but are not limited to:

  • Additional layers of cloth or masks worn underneath the N95 to act as a smooth skin to which the N95 can be sealed, and which the CDC deemed sufficiently safe throughout the worst of the COVID pandemic last year.[8]
  • PAPRs, which are hooded respirators worn over the head and face, providing full coverage protection that is even safer than an N95.[9]

The case we brought to HHS was not unique. Similar cases arise frequently because many employers fundamentally misunderstand that they are subject to Title VII when following CDC and OSHA regulations. Even though common sense and legal precedent dictate that employers must abide by EEO law and provide reasonable accommodations absent the imposition of an undue hardship, the CDC and OSHA regulations themselves do not make it explicitly clear. This lack of acknowledgement that the civil rights of employees must be balanced with the regulations themselves is the direct result of a biased interpretation of the policies -- one which results in employers either intentionally or unintentionally failing to comprehensively evaluate their own obligations in maintaining a discrimination-free workplace for their employees. 

B. Employers Must be Held Accountable for Failing to Provide Religious Accommodations Consistent with Their Obligations Under Title VII

Unfortunately, our experience indicates that some employers have used the pandemic as an opportunity to create more stringent workplace policies that fail to provide religious or other accommodations whatsoever, as a way to reduce their expenditures on those accommodations. In normal times, it may be difficult for many employers to claim that providing alternative PPE to the N95 as religious accommodations creates an undue hardship (i.e., would impose more than a de minimis cost or burden), given the provision of these same accommodations and tens of thousands of additional dollars they may spend on disability or other accommodations (such as the construction of accessible buildings and properties or alternative work schedules). However, due to the ongoing nature of this pandemic and its lasting effect on PPE protocol for the healthcare industry and other first responders, many employers feel they have government sanctioned authority to create employment policies which fail to take religion-based Title VII employee protections into account, thereby subjecting their employees to the risk of termination or a myriad of other forms of discrimination, just for practicing their faith. 

Over the last year, we have engaged with community members, stakeholder professional associations such as the North American Sikh Medical and Dental Association (NASMDA), manufacturers of PAPRs and other alternative forms of PPE, and built a coalition of civil rights organizations that represent employees in religious and other discrimination cases with the goal of advocating for our clients’ rights. However, unless the employers are held accountable by our government and the courts, all of our efforts will have been in vain.

It is imperative that the EEOC take a stand to protect the rights of employees requesting accommodations for alternative forms of PPE. Employers need clear, explicit guidance to better understand their legal obligations under Title VII to accommodate the needs of those unable to wear standard N95 respirators – particularly because employers interpret CDC and OSHA workplace regulations to supersede EEO law. Clarity would benefit many faith, disability, racial, and ethnic communities now and in the future as our health and safety policies evolve, so those policies do not disparately impact religious and racial minorities in the same manner as they have during this COVID-19 pandemic.

III. Conclusion

As I mentioned at the beginning of my testimony, the Sikh community is not new to workplace discrimination, and the COVID-19 pandemic has contributed to greater religion-based employment discrimination. The role of the EEOC is to advance the public interest, protect the civil rights of employees who are subjected to discrimination, and ensure that all American workers have access to equal employment opportunity. While this is no easy task, it is particularly important now given our societal recognition of the dangers of pervasive bias in the interpretation of policies and regulations, and their disparate impact on vulnerable minority communities. Employers must comply with their legal obligations under Title VII when it comes to the provision of religious accommodations, and our workplace regulations must clearly protect employees’ rights.

Consequently, we strongly urge the EEOC to acknowledge this harm which continues to grow as a result of the COVID-19 pandemic and to hold employers accountable whenever their actions or the failure to act are the cause of it.

Thank you for your time and consideration.

 

[1] Sikhism was founded in the South Asian subcontinent over 550 years ago.

[2] In 2006, the Sikh Coalition surveyed over 1,000 Sikhs in New York City; 9% of surveyed Sikh adults reported that they had been refused employment or denied a job promotion because of their Sikh identity. In 2009, the Sikh Coalition surveyed over 1,300 Sikhs in the California Bay Area; 12% of surveyed Sikhs believed that they had been refused employment because of their religious identity. See Sikh Coalition Making Our Voices Heard: A Civil Rights Agenda for New York City’s Sikhs (April 2008), pgs. 5, 12, available at  https://www.sikhcoalition.org/wp-content/uploads/2016/11/Making-Our-Voices-Heard.pdf and Sikh Coalition Bay Area Civil Rights Report 2010 (2010) pgs. 5, 8, 21, available at http://www.sikhcoalition.org/documents/pdf/Bay_Area_Civil_Rights_Agenda.pdf.

[3] Hart Research Associates and National Sikh Campaign, Sikhism in the United States: What Americans Know and Need to Know, (January 2015), available at https://d3n8a8pro7vhmx.cloudfront.net/sikhcampaign/pages/105/attachments/original/1467171428/sikh-report-final.pdf?1467171428.

[4] See Sikh Coalition Making Our Voices Heard: A Civil Rights Agenda for New York City’s Sikhs (April 2008), pgs. 5, 12, available at https://www.sikhcoalition.org/wp-content/uploads/2016/11/Making-Our-Voices-Heard.pdf and Sikh Coalition Bay Area Civil Rights Report 2010 (2010) pgs. 5, 8, 21, available at http://www.sikhcoalition.org/documents/pdf/Bay_Area_Civil_Rights_Agenda.pdf.

[5] See Racism is a Serious Threat to the Public’s Health, Center for Disease Control and Prevention (page reviewed April 12. 2021), available at https://www.cdc.gov/healthequity/racism-disparities/index.html.

[6] Id.

[7] See Id.

[8] R. Singh, Under-mask beard cover (Singh Thattha technique) for donning respirator masks in COVID-19 patient care, U.S. National Library of Medicine National Institutes of Health (Oct. 3, 2020), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7532752/.

[9] See U.S. Department of Health & Human Services Press Office OCR Resolves Complaint After Hospital Accommodates Medical Student’s Religious Needs During Covid-19 (July 21, 2020) available at https://www.bloomberglaw.com/bloomberglawnews/health-law-and-business/X63FJE9G000000?bna_news_filter=health-law-and-business#jci.