Do you require your workers to adhere to a dress code or grooming policy? I’ve written about
that issue before. You can click here, and here for those posts. You might wonder why I’d be writing about it again. No, it’s not because I like to repeat myself, and no, it’s not because I have run out of ideas. The reason is because the issue keeps popping up. I mean, it just won’t go away. What’s the problem with dress and grooming codes? Many people dress and groom themselves the way they do in order to adhere to sincerely held religious beliefs and practices. So what happens when the dress codes and grooming policies and an employee’s religious practice meet? Read on for a discussion of some recent religious accommodation cases.
(issue from hubpages.com)
First case: EEOC v Sieneem Enterprises d/b/a Tim Horton’s: This is a brand new case. By brand new I mean that the EEOC just filed suit one week ago, against Tim Horton’s Cafe and Bake Shop in Romulus, Michigan. The cafe requires its employees to wear uniforms. In and of itself there is nothing wrong with that. Many employers impose such a requirement on their employees. Generally speaking that requirement will apply to all employees, and so, it is a facially neutral, non-discriminatory requirement. The problem here involved Amanda Corley, an employee who adheres to the Pentecostal Apostolic Faith. She came to work wearing a skirt instead of the standard uniform pants, pursuant to her faith. She brought with her a letter from her pastor, explaining why she could not wear pants. Her manager refused to accept the letter, refused to discuss the matter with her, and instead fired her.
Now, generally speaking, you can require employees to conform to a uniform requirement. As you may already know however, Title VII of the Civil Rights Act prohibits discrimination by employers on the basis of an employee’s (or applicant’s) religion, among other things (e.g. race, color, sex, national origin). A rigid application of a uniform, grooming or “look” policy may have a discriminatory impact. Title VII and the cases interpreting it impose on the employer an obligation to provide to employees reasonable accommodations for sincerely held religious beliefs.
Similar to the ADA, when an employee asks for an accommodation of a sincerely held religious belief, the employer must engage in the interactive process. That means that it must have a discussion with the employee regarding his or her request for this type of accommodation. In this case that means that the manager should have at least accepted the letter and discussed Ms. Corley’s request and whether accommodating such a request would be feasible. If an employer presented with such a request can show that accommodating it would either be dangerous or effectively pose an undue hardship and there is not reasonable alternative available then it might not have to grant the request. An employer who refuses to even engage in the interactive process as Tim Horton’s did here, will usually be the loser an employment discrimination case. While this case is brand new, I cannot think of a reason why or how letting Ms. Corley wear a skirt instead of uniform pants would have negatively impacted their business. Stay tuned to see how this case resolves over time.
Second case: EEOC v MVM Inc. This is another brand new case involving a beard. Specifically, a Virginia-based security firm previously accommodated one of its security officer’s request for a modification to its grooming policy restricting facial hair to no longer than 1/4 inch and then stopped doing so. The security officer wears a beard in accordance with the Muslim faith. For one year, this employee maintained his beard. He complained to MVM management that his supervisor then called him “nigga”. Not only did management take no action about the racial slur, it responded by forcing him to shave his beard, and subjected him to a full-day suspension for arriving to work two minutes late. The EEOC alleges in the suit it just filed last week that MVM engaged in racial and religious discrimination as well as retaliation. Note to Self: If an employee was already receiving an accommodation, think twice before pulling it. 2nd Note to Self: Don’t compound a discrimination allegation with more discriminatory behavior. 3rd Note to Self: If an employee complains of discrimination don’t retaliate (click here for review).
Third case: EEOC v. North Memorial Health Care, Civ. No. 0:15-cv-3675. This does not involve dress or grooming, but it is a religious accommodation case, so it’s worth including here. Earlier this month, the US District Court in the District of Minnesota ruled that an employer did not retaliate against an employer when it rescinded a conditional job offer to an employee who asked for a scheduling modification for her religious beliefs as a Seventh Day Adventist. The court said that a request for a religious accommodation is not a protected activity and hence the rescission of the offer was not retaliation. Wait. What? The court noted that no 8th circuit cases (where MN is located) had ever decided the issue. The court stated that it therefore must interpret Title VII according to its plain language. It further reasoned that the plain language of Title VII names two categories of protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.
Now here’s where I think the court really did some hair-splitting: It said that since there was no evidence that the employee told her employer that its refusal to accommodate her was unlawful, she did not oppose a practice that violated Title VII. “In other words”, according to the court, “merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation,”. My own opinion: If you do not employ people in Minnesota, don’t rely on this ruling. Let’s just say I have some, er, ‘um questions about this one.
Bottom line: If an employee asks you to accommodate a sincerely held religious belief, don’t reject it out of hand. Have a discussion. If you are not sure that the belief is sincerely held, don’t argue that with the employee. See if there is a feasible way to provide the accommodation requested. If you feel that the request is not reasonable or you have other concerns or questions then you know what to do: Pick up that phone and call your friendly employment counsel.
Until then, I’ll see you next week.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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