BY AMRITH KAUR AAKRE AND SIM J. SINGH ATTARIWALA
This piece was published in the 32nd print volume of the Asian American Policy Review.
The intersection of religious rights, PPE constraints, and the urgency of the COVID-19 pandemic made clear the need for better guidelines that fairly and consistently interpret the law and hold employers accountable when they fail to respect their employees’ rights.
In May of 2020, as global anxiety around the COVID-19 pandemic continued to climb, a seemingly feel-good story emerged out of Montreal, Canada.
Dr. Sanjeet Singh-Saluja, an ER doctor at McGill University Health Centre, shared in a viral video how he and his brother, also a physician, made the difficult choice to sacrifice their religious practices for the sake of their careers.[i] As Sikhs, they maintained unshorn facial hair as an article of faith. But because N95 respirators were not permitted for use by those with facial hair under their hospital’s guidelines, the brothers felt compelled to shave.
Dr. Singh-Saluja and his brother viewed their choice as a reflection of seva, the Sikh concept of selfless service. And while their commitment to the medical profession during a pandemic is admirable, their decision—and the popular framing of that decision by the Canadian government and media as a morally superior and necessary choice—raises a complicated question: Should religious minorities feel or be obligated to make such sacrifices in the workplace, or can policies be more inclusive so those choices aren’t necessary?
In the United States, each individual’s faith is theirs to exercise as they see fit. From a legal perspective, the notion that one should be pressured or forced to choose between their faith and their career brings to the forefront the need to more fairly and inclusively apply rules and procedures in the workplace.
As legal and policy experts working for the Sikh Coalition, the largest Sikh civil rights organization in the United States, we are extremely familiar with matters of employment discrimination. The Sikh articles of faith—including kesh, the maintenance of unshorn hair (including facial hair), and the dastaar, or turban—are frequently targeted by dress and grooming requirements in professions that include uniforms (e.g. law enforcement) or public-facing roles (e.g. the entertainment industry).[ii] Our organization contends that many such requirements are outdated—that is, an employer’s aesthetic desire for uniformity should not supersede an individual’s religious freedom—and that in many cases, there are reasonable alternatives to sacrificing one’s faith. It is the employer’s responsibility to recognize and provide those alternatives as per their obligation to respect the employee’s protected rights.
During the COVID-19 pandemic, in the absence of clear government standards or guidelines on what constituted adequate personal protective equipment (PPE), many healthcare organizations began to rely on the N95 respirator as the only viable option. There are certified PPE alternatives, however, that provide equivalent or better protection for the wearer regardless of facial hair—namely, the Powered Air Purifying Respirator (PAPR), which provides full coverage protection and meets all appropriate safety regulations.[iii] Given that policies in many U.S. workplaces predominantly referenced N95s and did not provide clear guidance for the appropriate use of PAPRs or other PPE alternatives, we found that many employers were unprepared to make accommodations for Sikh and other healthcare employees who maintained facial hair.[iv] Many of these employees were also left without an understanding of their rights; some chose to shave preemptively, others felt pressured or were ordered to do so, and still others developed their own uncertified alternatives (e.g. layering N95 respirators with additional cloth masks) to try and protect themselves and others.[v]
The need for an N95 alternative was not limited to the Sikh community. Other religious minorities, including some Muslims and Jews, maintain facial hair for faith reasons.[vi] N95s also proved inadequate at providing a seal for many individuals with facial deformities as well as for women, who generally have narrower faces than men.[vii] Shave orders also adversely impacted many Black and Hispanic workers with the medical condition pseudofolliculitis barbae (PFB), which affects up to 60 percent of African American men and causes a severe and painful rash after shaving.[viii]
To solve this problem, the Sikh Coalition has issued guidance to workers and coordinated with hospitals, medical schools, and other employers in the healthcare industry to articulate Sikh employees’ rights, ultimately helping individuals secure more than 20 accommodations for a PAPR or other appropriate PPE. Affected clients have included doctors, nurses, medical and dental students, emergency responders, and others. The issue, however, is larger than these individual cases. Accordingly, over the past two years, our experts have submitted recommendations and delivered testimony, resources, and trainings to government agencies like the Equal Employment Opportunity Commission, U.S. Department of Health and Human Services, the Occupational Safety and Health Administration (OSHA), and the National Institute for Occupational Safety and Health—all to improve policy around PPE and religious accommodations.[ix]
Chief among our recommendations is increased accountability for employers to provide religious accommodations consistent with their obligations under constitutional and statutory provisions at the federal and state levels. It is not incumbent on an employee, or a civil rights organization, to advocate for a religious accommodation: employers are responsible for proactively providing for the safety of all of their employees, and considering the employee’s rights (including the right to religious practice) when doing so. The profound effect of the COVID-19 pandemic on PPE protocol for the healthcare industry makes this point all the more essential for the future.
It is also critical that workplace policy mandates are interpreted as subject to all relevant protections afforded to employees and consistent with employers’ legal obligations. In many of the individual cases we worked on, employers took existing regulations proclaiming that those with facial hair could not be fitted for an N95 at face value, and failed to consider whether these regulations were fair, what the equal employment repercussions were under federal and state anti-discrimination laws, or whether alternative accommodations could allow employees to remain safely working while maintaining their religiously-mandated facial hair. In each case, we challenged the employers to interpret the Centers for Disease Control 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.[x]
Both of these recommendations will be easier to implement with a readily available supply of alternative PPE. All workplaces need access to appropriate PPE for those in need of religious and medical accommodations. This requires proactive investment in research and development for alternative PPE beyond PAPRs, including technology that may reduce the cost and ecological impact of currently available PPE as well as advancements into more workable solutions that further protect people from pathogens and chemical exposure. There also needs to be an understanding that our policies must evolve in an unbiased manner to reflect the needs of our diverse workforce.
The intersection of religious rights, PPE constraints, and the urgency of the COVID-19 pandemic made clear the need for better guidelines that fairly and consistently interpret the law and hold employers accountable when they fail to respect their employees’ rights. But all told, these policy recommendations—and the broader need for policy-based guardrails to prevent Sikhs and others from being forced to choose between their faith and their career when it comes to PPE—are a symptom of the larger issues in workplace discrimination against individuals from minority communities. The CDC itself has acknowledged that:
… [R]acism 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.[xi]
And as mentioned above, Sikh Americans face discrimination through outdated and arbitrary uniform and grooming requirements, workplace segregation practices that keep us out of the public eye, and even bias-based cases of harassment, retaliation, or termination rooted in prejudice based on our perceived or actual faith, nationality, or ethnicity. These problems are larger than just the healthcare industry; though the COVID-19 pandemic has highlighted new specific challenges, religious discrimination in the workplace is a longstanding systemic issue.
Employers must be incentivized to protect their employees’ rights and held accountable when they do not. Now is the time to update our laws and policies to address the failures leading to these discriminatory practices across the public and private sectors, because no one should be presented with a false choice between their career and the practice of their faith.
AMRITH KAUR AAKRE serves as the Legal Director at the Sikh Coalition. In this role, she focuses on high-impact litigation and oversees all legal work while managing initiatives to protect the civil rights of all Americans in areas such as workplace discrimination, hate crimes, school bullying, racial and religious profiling, and general religious rights and policy issues. Prior to joining the Sikh Coalition, Amrith served as a Cook County Assistant State’s Attorney in Chicago, IL for 11 years. During this time, she supervised the felony Bond Court Initiative and led transformative projects to identify non-violent offenders for alternative rehabilitation programs, in addition to training police officers on Crisis Intervention Training protocol.
SIM J. SINGH ATTARIWALA serves as the Senior Manager of Policy and Advocacy at the Sikh Coalition. In this role, his work focuses on grassroots and national advocacy against hate crimes, school bullying, workplace discrimination, and racial profiling. Singh Attariwala is a licensed attorney admitted to practice in Washington, D.C. and Florida; prior to joining the Sikh Coalition, he practiced law, developed pro-bono legal assistance apps for disadvantaged communities and worked in governmental affairs through prior positions at Facebook and the U.S. Chamber of Commerce.
[i] Alaa Elassar, “Two Sikh Doctors Shaved Their Beards, a Pillar of Their Religion, to Continue Treating Covid-19 Patients,” CNN, 16 May 2020, https://www.cnn.com/2020/05/16/health/sikh-doctors-beards-coronavirus-trnd/index.html#:~:text=(CNN)%20Two%20Canadian%20doctors%20of,there%20are%20alternatives%20to%20shaving.
[ii] “Ending Employment Discrimination,” The Sikh Coalition, accessed 8 November 2021, https://www.sikhcoalition.org/our-work/ending-employment-discrimination/.
[iii] “Occupational Safety and Health Standards Respiratory Protection Standard Number 1910.134,” Occupational Safety and Health, accessed 8 November 2021, https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134.
[iv] “Written Testimony of Amrith Kaur, Legal Director, Sikh Coalition,” Equal Employment Opportunity Commission, last modified 28 April 2021, accessed 8 November 2021, https://www.eeoc.gov/meetings/meeting-april-28-2021-workplace-civil-rights-implications-covid-19-pandemic/kaur.
[v] Rajinder Singh et al, “Under-mask beard cover (Singh Thattha technique) for donning respirator masks in COVID-19 patient care,” Journal of Hospital Infection 106, no, 4 (2020): 782-785, https://pubmed.ncbi.nlm.nih.gov/33022336/.
[vi] “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” U.S. Equal Employment Opportunity Commission, accessed 8 November 2021, https://www.eeoc.gov/laws/guidance/religious-garb-and-grooming-workplace-rights-and-responsibilities.
[vii] Doug Hendrie, “Many N95 Respirators Do Not Properly Fit Women or People of Asian Descent: Review,” NewsGP, 19 September 2020, https://www1.racgp.org.au/newsgp/clinical/many-n95-respirators-do-not-properly-fit-women-or#:~:text=Women%20of%20Asian%20descent%20passed,compared%20to%2095%25%20for%20men.
[viii] Evan Simko-Bednarski and Anna Sturla. “25 officers who refused to shave their beards put on leave until the pandemic ends,” CNN, 30 April 2020, https://www.cnn.com/2020/04/30/us/prince-george-shave-police-leave-trnd/index.html.
[ix] “Written Testimony of Amrith Kaur, Legal Director, Sikh Coalition,” Equal Employment Opportunity Commission, last modified 28 April 2021, accessed 8 November 2021, https://www.eeoc.gov/meetings/meeting-april-28-2021-workplace-civil-rights-implications-covid-19-pandemic/kaur.
[x] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1964).
[xi] “Racism and Health,” Centers for Disease Control and Prevention, last modified 24 November 2021, accessed 8 November 2021, https://www.cdc.gov/healthequity/racism-disparities/index.html.