Crossed: When Religion and Dress Code Policies Intersect

February 14, 2008

Visible tattoos.  Headscarves.  Body piercings.  What do these things have in common?  They are the latest battleground for employers in cases of employment discrimination. 

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 Employment

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 religious practices. 

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 policies.

Illustrative Cases

  • 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 customers. 

    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 offered accommodations. 

    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 Code Policies

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 hardship.
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