Visible tattoos. Headscarves. Body
piercings. What do these things have in common? They are the
latest battleground for employers in cases of employment
It is commonly accepted that
companies have the right to adopt personal appearance and dress code
policies for their workforce, within limits. Reasons for such
policies include conveying a certain image to customers or clients,
portraying a professional or business-like appearance, and enforcing
safety standards. However, in developing and assessing violations
to these policies, employers must increasingly be mindful of
potential claims of religious discrimination.
Religious Discrimination in
Title VII of the Civil Rights Act of
1964 (“Title VII”) makes discrimination on the basis of religion
unlawful. This means that an employer may not discharge, refuse to
hire, or otherwise adversely treat an employee because of his or her
As the U.S. Equal Employment
Opportunity Commission’s (“EEOC’s”) guidelines make clear, religious
practices include moral or ethical beliefs that are sincerely held.
The fact that no organized religious group follows the employee’s
beliefs, or the fact that the religious group to which an employee
claims membership does not accept the employee’s beliefs, has no
bearing on the determination of whether a belief is deemed
“religious” by the employee. 29 CFR § 1605.1.
Title VII also requires an employer
to reasonably accommodate the religious beliefs of employees, unless
the accommodation of a belief, observance or practice would cause
“undue hardship” on the employer’s business. What does and does not
constitute “reasonable” accommodation requests and/or “undue
hardship” has been the subject of much litigation. Thus, a review
of a few illustrative cases can provide helpful instruction to
employers in avoiding legal pitfalls from dress code or appearance
- EEOC v. Alamo Rent-A-Car
In EEOC v. Alamo Rent-A-Car,
the EEOC brought suit against Alamo Rent-A-Car (“Alamo”) on
behalf of Bilan Nur, a Muslim woman. Ms. Nur was employed as a
rental agent at one of Alamo’s agencies in Phoenix, Arizona.
Alamo had a “Dress Smart Policy” that expressly prohibited
employees from wearing certain types of clothing and
accessories, but did not specifically prohibit the wearing of
head coverings. The policy, however, contained a clause
prohibiting the wearing of any “garment or item of outer
clothing not specifically mentioned in this policy.”
In November 2001, Ms. Nur
requested an accommodation to wear a hijab, or head scarf,
during Ramadan, the Islamic holy month. Ms. Nur was told that
she could wear a head covering in the back of the office but not
at the front counter where she would be interacting with
Ms. Nur violated Alamo’s policy
several times by coming to work wearing a hijab and refusing to
remove it while working at the front counter. Ms. Nur was then
terminated for repeated violation of Alamo’s dress code policy.
In ruling in favor of the EEOC on
summary judgment, the district court held that Alamo failed to
demonstrate that it took any steps to accommodate Ms. Nur’s
request, and did not provide any proof that it entered into
communications with Ms. Nur in an effort to explore potential
reasonable accommodations. At trial in June 2007, a jury
awarded $287,640 to Ms. Nur in back wages, compensatory damages
and punitive damages.
- Cloutier v. Costco
In Cloutier v. Costco,
Kimberly Cloutier, a cashier at Costco and a member of the
“Church of Body Modification”, brought suit after she was
terminated for refusing to remove her facial piercings based on
religious grounds and declining to accept any of the Company’s
Costco’s dress code policy
prohibited the wearing of any facial jewelry other than
earrings. Ms. Cloutier was asked to remove an eyebrow piercing
to conform to Costco’s policy. Ms. Cloutier refused, claiming
that she was required to display her facial jewelry at all times
as part of her religious beliefs. Costco attempted to
accommodate Ms. Cloutier by allowing her to wear plastic
retainers or cover the eyebrow piercing with a bandage while at
work. Ms. Cloutier refused to accept the offered
accommodations, asserting that the only reasonable accommodation
would be to excuse her from the Company’s dress code.
In December 2004, the First
Circuit Court of Appeals affirmed the district court’s grant of
summary judgment and held that Costco was not required to excuse
Ms. Cloutier from its dress code policy, as Ms. Cloutier’s
request would cause an undue hardship on Costco. The Court was
persuaded that Costco had a legitimate interest in presenting a
workforce to its customers that was reasonably professional in
appearance. The Court also noted, “[a] religious accommodation
constitutes an undue hardship when it would impose upon an
employer more than a de minimums costs.”
- EEOC v. Red Robin Gourmet Burgers
In August 2005, the EEOC brought
suit against Red Robin Gourmet Burgers. The EEOC alleged in its
suit that Red Robin refused to offer Edward Rangel, a server at
the restaurant, any accommodation for his Kemetic religion, an
ancient Egyptian faith. As part of his religious practice, Mr.
Rangel was tattooed with quarter-inch wide religious
inscriptions encircling each wrist.
Red Robin had a dress code
prohibiting employees from having visible tattoos and asked Mr.
Rangel to cover his tattoos with wrist bans or bracelets. Mr.
Rangel refused, stating that covering his tattoos was a sin.
Mr. Rangel had multiple conversations with management,
explaining his faith and his need for an accommodation in the
form of an exception to the policy, to no avail. Mr. Rangel was
then terminated for failing to conceal his tattoos.
At summary judgment, Red Robin
argued that exempting Mr. Rangel from its dress code policy
would create an undue hardship to the employer because it had a
certain image it wanted to portray to customers. The district
court disagreed, stating that allowing the employee to show his
tattoos must not be much of a hardship given that Mr. Rangel
worked for six months before being asked to cover his tattoos,
no customers complained, and the tattoos were small. The case
was ultimately settled with Red Robin paying $150,000 and making
substantial policy and procedural changes.
- EEOC v. Oak-Rite Manufacturing
In EEOC v. Oak-Rite
Manufacturing Corp., Oak-Rite, a metal parts manufacturer,
refused to hire Brenda Enlow as a press operator because she
could not adhere to the Company’s dress code requirements. For
safety reasons, Oak-Rite required all employees to wear long
pants in its metal-working factory. Ms. Enlow, a member of the
Conservative Holiness faith, claimed that she was prohibited
from wearing pants as part of her religious beliefs.
The EEOC sued on behalf of Ms.
Enlow, arguing that Oak-Rite should accommodate Ms. Enlow by
allowing her to wear reasonably close-fitting denim or canvas
skirts. At summary judgment, Oak-Rite argued that the EEOC’s
requested accommodation would cause an undue hardship because it
required Oak-Rite to experiment with an employee’s safety. The
court agreed, stating that the employer’s limited duty of
accommodation under Title VII does not require an employer to
choose between potential Title VII liability on the one hand and
potentially increased risk of workplace injuries on the other.
Avoiding Failure to Accommodate Claims Concerning Dress
Employers should not be afraid to set
dress code and personal appearance policies for their employees.
However, if an employee asks for an accommodation or exemption from
a dress code policy for religious reasons, the employer must engage
in a dialogue with the employee to determine if a religious
accommodation can be made. In addition, like accommodations under
the Americans with Disabilities Act (“ADA”), employees are not
entitled to their preferred accommodation, but merely a reasonable
one. It is, therefore, good practice for employers to:
- Not enforce dress code and personal appearance policies with
a strict “all or nothing” approach.
- Engage in dialogue with employees regarding religious dress
accommodation requests, including the nature and bases for the
concern and potential approaches.
- Keep a record of all communications and discussions that
they have with employees concerning potential accommodations.
- Keep a record of customer surveys, marketing reports,
customer complaints, OSHA requirements, injury records and other
data that would potentially support the need for particular
dress code standards.
- Attempt to come to the middle on accommodations where
complete granting of specific requests are not practicable
(e.g., addressing part but not all of an accommodation need).
- Consult with legal counsel before a determination is made
that granting a requested accommodation would result in an undue