“Clean-Shaven” Policy May Not Be So Clean

Religious dress and grooming practices became news late last year when popular clothing store Hollister (an Abercrombie & Fitch brand) fired a Muslim employee for wearing a hijab, an Islamic religious headscarf.  Initially, the employee was asked to wear headscarves in Hollister colors which she did.  After several months, a district manager was in the store and did not like the scarf.  The employee was told the headscarf violated the company dress code and she would be removed from the schedule if she did not stop wearing it.  When she did not comply she was fired.  The District Court agreed with the employee and the Equal Employment Opportunities Commission (“EEOC”), that the termination violated Title VII of the Civil Rights Act of 1964 (“Title VII”).  See United States EEOC v. Abercrombie & Fitch Stores, Inc., 2013 U.S. Dist. LEXIS 125628 (N.D. Cal. Sept. 3, 2013).

On the heels of this decision and others like it, the EEOC released guidance on accommodating religious dress and grooming practices under Title VII, the federal law prohibiting employers with 15 or more employees from religious discrimination in employment (among other protected classes).  Some of the key points are:

1. Religion:  The guidance makes clear that “religion” includes not only organized religions like Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but other newer or more uncommon religions.  For example, a restaurant employee has always worn his hair short and suddenly starts wearing it longer.  When a manager tells him he cannot wear long hair, the employee says he has become a practicing Nazirite and cannot cut his hair.  The employer cannot deny the employee the accommodation because it has never heard of this religion.
2. Sincerity of Beliefs:  Title VII’s religious accommodation only applies to those beliefs that are “sincerely held.”  “Sincerity” can apply to people who may become more religious, change religions, or change practices.  For example, if a Christian employee asks for Good Friday off this year but has never asked for it off in the past, the employer cannot deny her this accommodation based on the fact that she has never asked for that day off before.  If an employer legitimately questions an employee’s sincerity, the employer may ask for information reasonably needed to evaluate the sincerity of the request.
3. Accommodation and Undue Hardship:  Employers must reasonably accommodate the religious practices of an employee or prospective employee, once they are aware that one is needed, unless it would create an undue hardship on the employer.  Undue hardship means “more than de minimis” cost or burden.  This typically means the employer will have to make an exception to dress code and grooming requirements where doing so would not cause an undue hardship.  Undue hardship will not include customer preference and does not automatically include something that violates the appearance policy or “look” of the brand.  Generally, it is not acceptable for an employer not to hire someone because it does not want to make a reasonable accommodation or to put the person in the “back room” out of sight.  If the employer has a safety, security, or health concern, the employer must show the practice actually does pose an undue hardship and evaluate if a reasonable accommodation is available.  For example, if a Sikh employee has a beard or a Jewish employee has peyes (side locks), the emplolyer cannot assume the beard or long hair are health concerns unless they actually are health concerns and even then there may be a way to accommodate these grooming practices.
4. Harassment:  Harassment is also prohibited under Title VII.  It can occur when an employer requires or coerces an employee to stop, change, or adopt a different religious practice or when an employee is the subject of offensive remarks or verbal or physical mistreatment.  It does not include simple teasing, offhand comments, or isolated incidents that are minor.  Employers must address all complaints or observations of harassment immediately.  For example, if an employer sees employees laughing at a Sikh employee who wears a turban, the employer should intervene, even if no complaint has been officially made, to ensure the behavior stops and doesn’t escalate.

In addition to the legal and moral obligations of ensuring the workplace is free of discrimination or harassment, if an employer mishandles a situation, it could end up on the front page of the newspaper.  Abercrombie & Fitch learned this the hard way.  Therefore, you should ensure employees and managers know the proper complaint procedures.  In addition, you should ensure managers can identify requests for religious accommodation if an employee makes one, since no magic words need to be used.  For example, do your managers know that if an employee asks for an exception to the “no dreadlocks” rule that this may warrant a religious accommodation?  Do they know who to consult if someone requests a religious accommodation?

Interestingly, in the Abercrombie & Fitch case, the District Manager was aided by a Senior Manager of Human Resources and the two still acted on a mistaken belief that they could lawfully fire the employee for wearing a religious headscarf.  If an issue arises, you should consult legal counsel to avoid costly legal battles that may arise should the wrong action be taken.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

THIS ARTICLE WAS FIRST PUBLISHED ON THE LAW.COM CONTRIBUTOR NETWORK ON APRIL 14, 2014.