Corporate Appearance Policies Versus Religious Practices: A Delicate Legal Balance
An enormous new settlement of a religious discrimination case brought by the EEOC presents a perfect opportunity to reprise an old post with a new addition.
Can an employer fire someone for wearing a veil or hijab?
Or a turban?
Does a corporate policy on employee appearance trump religious dress or grooming requirements?
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!
This new settlement illustrates the point.
Settled for $4.9 Million!
The world’s largest package delivery company – UPS had a policy which “prohibits male employees in supervisory or customer contact positions, including delivery drivers, from wearing beards or growing their hair below collar length.”
In a class action lawsuit brought by the EEOC, it was alleged that:
“since at least January 1, 2005, UPS failed to hire or promote individuals whose religious practices conflict with its appearance policy and failed to provide religious accommodations to its appearance policy at facilities throughout the United States.
The EEOC further alleged that UPS segregated employees who maintained beards or long hair in accordance with their religious beliefs into non-supervisory, back-of-the-facility positions without customer contact.”
A settlement where the company agreed to pay $4.9 million. That’s an awful lot of deliveries!
The EEOC’s lead trial counsel said that this strict appearance policy “has operated to exclude Muslims, Sikhs, Rastafarians, and other religious groups from equal participation and advancement in the workforce for many years.”
Now let’s go back.
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.
Some years ago, 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).”
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).
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)).”
A Similar Lawsuit in 2016
In July 2016, the EEOC sued a Florida staffing company which services the hospitality industry alleging religious discrimination. It claimed 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 then 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.”
After this new settlement the EEOC has noted that “Federal law requires employers to make exceptions to their appearance policies to allow applicants and employees to observe religious dress and grooming practices.”
I have said many time 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 an 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.