Religious Discrimination

HOW EMPLOYERS CAN AVOID RELIGIOUS DISCRIMINATION LAWSUITS

On June 27, 2011, the EEOC filed a religious discrimination lawsuit against Abercrombie & Fitch in Federal Court in the Northern District of California, claiming the retailer violated the civil rights of Muslim woman Hani Kari when it allegedly fired her for refusing to remove her headscarf, or hijab.  This is the third religious discrimination lawsuit filed by the EEOC against the retailer in the last 2 years involving the company’s “Look Policy,” an internal dress code that includes a prohibition against head coverings.  The EEOC’s suit alleges that Abercrombie & Fitch refused to accommodate the employee’s religious beliefs by granting an exception to this policy and allow Ms. Kari to wear a headscarf at work.

Claims of workplace religious discrimination against Muslim women who wear the traditional headscarf continue to increase throughout the United States, including California.  To avoid these types of costly and potentially embarrassing lawsuits, California employers need to understand their rights to impose reasonable dress codes on their employees, as well as the rights of employees and applicants who are entitled to reasonable accommodations for their sincerely held religious beliefs and practices.

Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act prohibit employers from discriminating against employees on the basis of religion. Under both California and federal law, an employer must offer a reasonable accommodation to resolve a conflict between an employee’s sincerely held religious belief and a condition of employment, unless such an accommodation would create an undue hardship for the employer’s business.  Applicable EEOC Guidelines state that when an employer has a dress or grooming policy that conflicts with an employee’s religious beliefs or practices – such as shaving, hair length, religious clothing, jewelry, and head or face coverings – the employee may ask for an exception to the policy as a reasonable accommodation.  Absent undue hardship, religious discrimination may be found where an employer fails to accommodate the employee’s religious dress or grooming practices.

Generally, courts have been willing to find undue hardship when the employer asserts a legitimate safety rationale for the dress or grooming policy.  For example, in Bhatia v. Chevron (9th Cir. 1984), Chevron adopted a safety policy that required all employees whose job duties involved potential exposure to toxic gases to shave any facial hair that prevented them from achieving a gas-tight face seal when wearing a respirator.  Bhatia was a machinist who had to wear such a respirator, but informed Chevron that he could not comply with the policy because his Sikh religion proscribed cutting or shaving any body hair.  Chevron refused to let plaintiff return to his machinist job, but offered him a transfer to other jobs within the company.  Bhatia accepted a transfer to a janitorial job, but later sued for religious discrimination.  The Ninth Circuit found that Chevron established that retaining plaintiff as a machinist when he was unable to safely use a respirator would cause an undue hardship, given the safety issues and the risk of liability for violating OSHA standards.

Similarly, in EEOC v. Geo Group, Inc. (3rd Cir. 2010), the EEOC brought suit on behalf of a class of female Muslim employees in a privately-run prison when the employer refused to provide them an exception to the prison’s dress policy that precluded them from wearing khimars, a traditional garment worn by Muslim women which covers them from the head down to the chest.  The dress policy prohibited hats, caps, scarves, hooded jackets, and sweatshirts.    The rationale for the policy was to prevent misidentification as well as the introduction of contraband into the prison.  The employer also asserted that there was a risk of using the khimar as a weapon to strangle others during inmate conflicts.  The Third Circuit held that the employer’s policy prohibiting headgear due to safety concerns overrode the sincere religious beliefs of the Muslim women workers of their need to wear a khimar, even assuming that khimars presented only a “small threat of the asserted dangers.”  Similarly, in EEOC v. Kelly Services (8th Cir. 2010), the Court held that defendant employment agency had legitimate, non-discriminatory reason for refusing to refer plaintiff for work at printing company since the  plaintiff’s refusal to remove her khimar for work conflicted with the company’s strict policy prohibiting headwear to prevent loose apparel from getting caught in machinery.

Several courts have also upheld grooming and personal appearance policies that have a “public image” rationale.  Indeed, the EEOC guidelines acknowledge that some courts have concluded that it would pose an undue hardship if an employer were required to accommodate a religious dress or grooming practice that conflicts with the public image that the employer wishes to convey to customers.

For example, in Cloutier v. Costco (1st Cir. 2004), Costco’s employee dress code prohibited all facial jewelry, but plaintiff refused to remove her eyebrow piercing, asserting that it was part of her religious practice as a member of the Church of Body Modification.  Plaintiff’s requested accommodation was an outright exemption from the dress code.  The court found that in this case, granting such an exemption from a neutral dress code “would be an undue hardship because it would adversely affect the employer’s public image.”  The company had determined that facial piercings detracted from the “neat, clean and professional image” it aimed to cultivate, and such a business determination was within its discretion.  The court further noted that although courts are “somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that never has been put into practice,” it was nevertheless “possible for an employer to prove undue hardship without actually having undertaken any of the possible accommodations.”

Other courts considering Title VII religious discrimination claims have also upheld grooming and dress code policies that were designed to appeal to customer preference or to promote a professional public image.  For example, a number of Courts have upheld no-beard policies based on hygiene, the appearance of cleanliness compliance with sanitation standards.

However, courts have been unwilling to find undue hardship when the employer’s asserted public image rationale is suspicious.  In EEOC v. Alamo Rent-A-Car (D. Ariz. 2006), although the employer asserted a public image concern if it accommodated plaintiff’s head covering, testimony from the HR manager established that the company was more concerned about opening the floodgates to more deviations from the company uniform policy.  The District Court found this hypothetical scenario insufficient to prove undue burden.

Cases where the employer’s dress code exists purely to promote brand image may not fare as well given the difference in rationale.  The court was unwilling to find undue hardship for such a dress code in EEOC v. Abercrombie & Fitch (E.D. Mo. 2009).  In that case, the EEOC brought suit on behalf of Lakettra Bennett, a Manager in Training at defendants’ Hollister Store.  Hollister had a “Look Policy” that directed  associates to wear clothes similar to the Hollister brand – described as “ripped-up jeans, a little revealing, sporty, California beach style . . . sexy, form fitting, and designed to show off body contours,” with skirts and dresses “falling just below the buttocks.”  Bennett converted to the Apostolic religion, which required that she wear only skirts that fell below the knee and shirts with sleeves that came to the forearm.  When Bennett arrived to work wearing an ankle-length denim skirt, she was told that the skirt was “inconsistent with the Hollister style.”  As possible accommodations, the company offered that Bennett could: (1) wear jeans instead of skirts; (2) wear short skirts with leggings underneath; or (3) look in other stores for skirts that would meet both her religious requirements and the style requirements of the Hollister brand.  Bennett rejected all of the options and resigned.  In denying defendants’ motion for summary judgment, the court held that whether any of defendants’ three proposed solutions constituted a reasonable accommodation for Bennett’s religious dress remained an issue of fact for the jury.  The court also concluded that defendants failed to demonstrate that, “as a matter of law, they would have suffered more than a de minimis hardship” if they had granted Bennett a complete exemption from the Look Policy.  This remained a question for the jury.

A federal judge in Oklahoma recently granted summary judgment for the EEOC against Abercrombie & Fitch in a similar case, finding there was no specific evidence of financial harm to the company’s brand if they had accommodated plaintiff wearing her hijab as a sales associate.  A jury trial to determine damages is tentatively scheduled for July 18, 2011.

Given the current state of the law, employers who have dress codes, or other policies regarding employee appearance, should include carve out exceptions to accommodate employees where the undue hardship to the employee is de minimis. Employers who can assert a legitimate safety rationale for prohibiting an exception will most likely be able to establish that the accommodation would result in an undue hardship.  Although courts have also upheld employee appearance policies that have a “public image” rationale, most of these cases only uphold an employer’s preference for a clean and professional appearance.  Courts appear to be hostile to an employer’s dress code which simply promotes brand image and a certain “look” for its staff.  In fact, those types of dress codes have been subject to race and national origin discrimination lawsuits.

Absent a real undue hardship, employers should accommodate dress code exemptions for hijabs and other religious attire to reduce their risk of lawsuits. To the extent that dress code exemptions cannot be granted, employers should make every effort to work with the employee or applicant to find other accommodations where possible, such as a transfer to another position where the employee could work while wearing the religious attire.

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