Appearance Policies Versus Religious Practices: A Delicate Legal Balance

Since employment discrimination lawyers are seeing more and more religious discrimination cases being brought, it may be time, once again, to re-visit the subject.

Can an employer fire someone for wearing a veil or hijab?

Muslim girl

Or a turban?

Sikh Businessman

Having dreadlocks?

Rastafarians 1

Growing sidelocks?

Man reading Torah

Asking for time off on the Sabbath?

Does a corporate policy on employee appearance trump religious dress or grooming requirements?

Can an employee take off on his holy day if its also a work day?

The bottom line is:  Unless it creates an undue burden, an employee’s religious practices and beliefs must be accommodated by an employer.   And seeking such an accommodation through an interactive process with the employee is a must!

A new case illustrates the point.

The EEOC just sued a Florida staffing company which services the hospitality industry alleging religious discrimination. It claims that an employee, assigned to a Walt Disney World resort hotel as a prep cook, is a Rastafarian whose religious practice includes wearing dreadlocks.

For more than a year he kept his hair under his cap, but after a Disney inspection he was told to conform to the Disney appearance standards, i.e., cut his hair, or be fired. He said that his religion forbade him from doing so, but no accommodation was discussed or offered to him.

He was fired.

An EEOC attorney said that “The law seeks to strike a balance between reasonably accommodating religious beliefs and respecting legitimate business concerns. A staffing company cannot avoid its legal obligation to reasonably accommodate an employee’s religious beliefs based on a client’s appearance policy.”

Religious Discrimination Cases Under Title VII

I have written a lot about accommodating religious beliefs and practices unless they present an undue burden.  Generally speaking, the majority of cases I’ve seen fall into two categories: those whose religious faith requires them to refrain from working on certain days, such as the Sabbath, and those whose religiously-required dress or grooming is not in compliance with a corporate “appearance” policy.

Appearance Policies And Accommodations

Title VII does not prohibit dress or grooming rules per se, as long as these rules do not have a “disparate impact” on, for example, employees who have religious beliefs (or also a disability) which require a certain dress or hair style.  Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.

Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.

A Missouri labor official nicely illustrated a couple of prohibitions: “For example, a particular hair style may be a tenet of the employee’s religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer).”

Work Schedules

As to the conflict between work schedules and religious beliefs, I posted about a case in which the EEOC claimed that a bookkeeper was told that he had to work Saturdays.   Being a Hebrew Pentecostal, who could not work from sunset Friday to sunset Saturday, he asked instead to be permitted the accommodation of working Sundays or late on week nights other than Fridays.  He was fired.

Biometric Hand Scanning And The Mark Of The Beast 

Of course, there are one-off types of cases, the most illustrative being the case of a religious discrimination suit brought by the EEOC against a Pennsylvania coal company for refusing to accommodate (and forcing to retire) an Evangelical Christian who had been an employee for 35 years.

Woman holding a barcode scanner

The employee refused to submit to a biometric hand scanner which tracks employee time and attendance (a device which is becoming more commonly used and seen in FLSA cases) claiming that there was a “relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament.”

He asked for an exemption from this hand scanning based on his religious beliefs but this was denied.

The EEOC was awarded a unanimous jury verdict on behalf of the plaintiff, and after a two day hearing, the federal judge awarded a total of $586,860 in lost wages and benefits and compensatory damages.

The EEOC Guidance

In March 2014, the EEOC published a report on how employment discrimination law applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area.

Apropos a then newly-filed case involving a Muslim police officer who refused to trim his beard under a new grooming policy, an EEOC spokesman said that “No employee should be forced to violate his religious beliefs in order to earn a living.   Modifying a dress or grooming code is a reasonable accommodation that enables employees to keep working without posing an undue hardship on the employer.”  (United States of America v. School District of Philadelphia, case number 2:14-cv-01334, Eastern District of Pennsylvania).

Middle eastern man

In its 2014 guidance, the EEOC explained

“Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”

Takeaway:  Last month I commented that “most religious accommodations are not unduly costly,” and that “one thing is certain: the EEOC has decidedly not abandoned its efforts to pursue claims of employment discrimination based upon religion.”

I will repeat a old quote from an EEOC attorney: Many times when there is a conflict between an employee’s religious beliefs and a work rule, there are easy modifications to company policy permitting an employee to continue to work without violating his religious beliefs.”

As I wrote before, “Let’s add to that the requirement that an employer must engage the employee in that famous ‘interactive process’ to determine if there exists an accommodation … that is not unduly burdensome.

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]