Roll Out the Red Carpet: What Employers Need To Know About Dress Code Policies To Avoid Being Nominated for a Lawsuit

by Obermayer Rebmann Maxwell & Hippel LLP
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The Oscars are synonymous with fashion with viewers critically evaluating red carpet looks to determine their picks for the best-dressed list. But what happens when employers turn that critical eye to the slightly less glamorous realm of employee work attire? Although employers generally have the right to adopt dress code and grooming policies to convey a certain image to customers or enforce safety standards, employers may need to make exceptions to those policies to accommodate an employee’s sincerely held religious belief. So while you are ranking your 2014 Oscars best-dressed list (my vote is for Lupita Nyong’o or Charlize Theron), make sure your company is aware of the following guidelines to avoid being the recipient of a not-so-glamorous Title VII lawsuit.

What is religious accommodation?

Under Title VII of the Civil Rights Act (“Title VII”), an employer must offer a reasonable accommodation to resolve a conflict between an applicant’s or employee’s sincerely held religious belief and an employer’s policy, unless such an accommodation would create an undue hardship for the employer’s business. An employee or applicant seeking a religious accommodation is seeking an adjustment to the policy that infringes on his or her ability to practice his or her religion. For a conflict to exist, an applicant or employee must consider the religious practice to be an inflexible one—that is, a practice that is required by his or her religious belief system. The accommodation requirement is intended to relieve individuals of the burden of choosing between their jobs and their religious convictions.

What is a sincerely held religious belief under Title VII?

Title VII defines “religion” to include “all aspects of religious observance and practice as well as belief.” The EEOC’s Compliance Manual states: “religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Both the EEOC and the courts agree that religious beliefs include theistic beliefs as well as non-theistic moral or ethical beliefs as to what is right and wrong, which are sincerely held with the strength of traditional religious views. To the contrary, social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.

Religious observances or practices may include wearing religious garb or symbols, displaying religious objects, restrictions on grooming practices, or refraining from wearing certain garments (such as pants or skirts). Determining whether a practice is religious turns not on the nature of the activity, but on the employee’s motivation. The same practice might be engaged in by one person for religious reasons and by another person for purely secular reasons. In that instance, the same practice might in one case be subject to reasonable accommodation under Title VII because an employee engages in the practice for religious reasons, and in another case might not be subject to reasonable accommodation because the practice is engaged in for secular reasons. Whether or not the practice is “religious” is therefore a situational, case-by-case inquiry.

For example, in Hussein v. Waldorf Astoria Hotel, 31 F. App’x 740 (2d Cir. 2002), an employee’s claim alleging religious discrimination because the defendant would not allow him to have a beard at work failed because the employee did not establish that he had a bona fide religious belief that required him to have a beard. The court found that the undisputed evidence showed that, until the night of the incident in question, the employee had never worn a beard to work during his 14 years of employment and made no effort to explain why, if his religion prevented him from shaving, he had never worn a beard before (for example, if he had just converted to his religion).

Does an employee or applicant need to inform an employer of the conflict between the religious belief and the employer’s policy to trigger the religious accommodation process?

Yes; when an employee or applicant needs a dress code or grooming accommodation for religious reasons, the employee must notify the employer that he or she needs such an accommodation for religious reasons. The EEOC discourages employers from making inquiries regarding the religious beliefs or practices of applicants in its guidance pertaining to Pre-Employment Inquiries and Religious Affiliation or Beliefs. Likewise, courts have held that it is incumbent upon the employee or applicant to show that the alternative clothing or hairstyle is a necessary part of a sincerely held religious belief. For example, in EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013), the court held that Abercrombie was entitled to summary judgment on the applicant’s religious accommodation claim under Title VII, because the applicant never informed Abercrombie prior to its hiring decision that she wore her headscarf or hijab for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and the employer’s clothing policy.

That said, there are no “magic words” that are required to place an employer on notice of an applicant’s or employee’s conflict between religious needs and a work requirement. To request an accommodation, an individual may use plain language and need not mention any particular terms such as “Title VII” or “religious accommodation.” However, the applicant or employee must provide enough information to make the employer aware that there is a conflict between the individual’s religious practice or belief and the policy.

May an employer deny a religious accommodation request for safety reasons?

Yes; workplace health and safety considerations may trump an employee’s request to deviate from a dress code or grooming policy for religious reasons. The nature of the work may require that employees wear hair ties, long pants or protective shoes for safety reasons. For instance, in EEOC v. Oak-Rite Manufacturing Corp., 2001 U.S. Dist. LEXIS 15621 (S.D. Ind. Aug. 27, 2001), a job applicant required by her religion to wear skirts challenged the factory’s pants-only rule as discriminatory on the basis of religion. The court rejected her claim, concluding that the facially neutral policy was a “reasonable safety measure” and that the employer was not required by Title VII to “experiment with employee safety.”

Further, in EEOC v. Geo Group, Inc., 616 F.3d 265 (3d Cir. 2010), the court held that deviating from a no-headgear policy in a prison would cause the prison undue hardship by compromising security and safety interests. In Geo Group, Inc., the EEOC filed a complaint alleging that the employer violated the prohibitions on religious discrimination under Title VII, when it refused to make an exception to a prison dress policy to allow a class of Muslim female employees to wear khimars at work. The employer—a private corporate operator of U.S. prisons—argued that a deviation from its no-headgear policy would cause it an undue hardship by compromising its institutional interests in security and safety. The employer offered the testimony of two prison wardens who identified specific safety and security reasons for enforcement: khimars, like hats, could be used to smuggle contraband into and around the prison; khimars could be used to conceal the identity of the wearer, which created problems of misidentification; and khimars could be used against a prison employee in an attack. The court determined that the specific risks identified and explained by the wardens satisfied the necessary showing of the undue hardship defense to the EEOC’s claim of religious discrimination. The court held that the employer’s responsibility to ensure the safety of its prisoners, its staff, and its visitors was overriding, and it subordinated the sincere religious beliefs of the female Muslim employees and their need to wear a khimar.

Best Practices

As part of best practices, employers should consider the following guidelines with respect to drafting and enforcing company dress code and grooming policies:

  • A dress code or grooming policy should outline the procedure to request an accommodation for religious reasons. Employers should inform employees that they will make reasonable efforts to accommodate the employees’ religious practices and should consider developing internal procedures for processing religious accommodation requests.
  • Employers should make efforts to accommodate an employee’s desire to wear a yarmulke, hijab, or other religious garb.  If the employer is concerned about uniform appearance in a position which involves interaction with the public, it may be appropriate to consider whether the employee’s religious views would permit him or her to resolve the religious conflict by, for example, wearing the item of religious garb in the company uniform color(s).
  • Employers should train managers and supervisors on how to recognize religious accommodation requests from employees. Managers and employees should be trained not to engage in stereotyping based on religious dress and grooming practices and should not assume that atypical dress will create an undue hardship.
  • Employers should individually assess each request and avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate.
  • Employers and employees should confer fully and promptly to the extent needed to share any necessary information about the employee’s religious needs and the available accommodation options.
  • An employer is not required to provide an employee’s preferred accommodation if there is more than one effective alternative to choose from.  An employer should, however, consider the employee’s proposed method of accommodation, and if it is denied, explain to the employee why the proposed accommodation is not being granted.

*The author would like to acknowledge Connie Lee for providing assistance with the research and writing of this article.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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